West Virginia Dept. of Highways v. Farmer

• Decision Date: 23 July 1976
• Docket Number: No. 13637,13637
• Court: West Virginia Supreme Court
• Parties: WEST VIRGINIA DEPARTMENT OF HIGHWAYS, a corporation v. Claude FARMER et al., Charles Hornor et al., Intervenors.

Page 717

226 S.E.2d 717

159 W.Va. 823

WEST VIRGINIA DEPARTMENT OF HIGHWAYS, a corporation v. Claude FARMER et al., Charles Hornor et al., Intervenors.

No. 13637.

Supreme Court of Appeals of West Virginia.

July 23, 1976.

Syllabus by the Court

1. Where an ambiguity exists in the language of a deed reserving minerals from a conveyance, making unclear the intention of the grantor as to what minerals are reserved, construction of such language is in order and in so doing the surrounding circumstances and actions of the parties may be considered.

2. In the construction of a deed, where general words follow words of a particular and specific meaning, such general words are not to be construed in their widest extent, but are held to apply only to things of the same kind, class or nature as those specifically mentioned.

3. Where an ambiguity exists in a deed, the language of such deed will be construed most strongly against the grantor.

4. A straight mineral reservation does not ordinarily include the sand and gravel.

Orville L. Hardman, Parkersburg, for P. E. Hornor.

Larry L. Skeen, Ronald H. Adams, Ripley, for D. E. Farmer.

CAPLAN, Justice:

The sole question presented on this appeal is whether, in the circumstances revealed by the record, the sand and gravel situate on the land of Claude Farmer and Virginia H. Farmer, his wife, owners of the surface of the subject real estate, is included in a reservation of the 'oil, gas and other minerals'. The trial court found that sand and gravel are not included in such reservation and awarded the proceeds for the sale thereof to the Farmers. We affirm that ruling.

The West Virginia Department of Highways, needing sand and gravel for its road building program, instituted an action in eminent domain against the Farmers for the purpose of obtaining sand and gravel from their land. A trial of that action resulted in a jury verdict in the approximate amount of $33,000.00, which represented the value of the property taken and damages to the residue.

Subsequent to the jury verdict, but prior to the disbursement of the funds, the owners of the greater portion of the mineral interests in such land sought the right and were permitted to intervene. It was their contention that, being the owners of nine-tenths of the oil and gas and other minerals in and under the Farmer land, nine-tenths of the award should be paid to them.

It is conceded by all parties that sand and gravel are normally included in the term 'minerals'. This was cogently stated in Waugh v. Thompson Land & Coal Company, 103 W.Va. 567, 137 S.E. 895 (1927), in the following language: 'The word 'mineral' in its ordinary and common meaning is a comprehensive term including every description of stone and rock deposit, whether containing metallic or non-metallic substances.' See Robinson v. Wheeling Steel & Iron Co., 99 W.Va. 435, 129 S.E. 311 (1925); Ramage v. South Penn Oil Company, 94 W.Va. 81, 118 S.E. 162 (1923), and Horse Creek Land & Mining Co. v. Midkiff, 81 W.Va. 616, 95 S.E. 26 (1918). The intervenors charge that since and and gravel are minerals and since they own nine-tenths of the minerals, they are entitled to that proportionate share of the award. It is the further position of the intervenors that the language is clear and unambiguous and that there is therefore no need for construction of such language.

It has long been held that where language in a deed is unambiguous there is no need for construction and it is the duty of the court to give to every word its usual meaning. 5 M.J., Deeds, § 66. See also Burdette v. Bruen, 118 W.Va. 624, 191 S.E. 360 (1937), and Tate v. United Fuel Gas Co., 137 W.Va. 272, 71 S.E.2d 65 (1952). However, where an ambiguity is introduced by the restrictive language, making unclear the intention of the grantors in reserving minerals from a conveyance, construction of the language is in order and the surrounding circumstances and actions of the parties may be considered. Burdette v. Bruen, supra.

The language in the deeds in the chain of title to the subject land did not specifically reserve the sand and gravel but only 'the oil, gas and other minerals in and under said land.' This language, considered along with the surrounding circumstances and past activities concerning this property, creates an ambiguity as to the intent of the grantor. The record reveals that from February 2, 1911, the date of the original deed in this case, sand and gravel were not sold from the Farmer land until this eminent domain proceeding. The predecessor in title to Mr. Farmer testified that he was unaware of any sale of sand in this area; that he was aware of the existence of sand when he purchased the land; and that he purchased and used the land strictly for farming. In these circumstances it seems remote that a reference to 'minerals' in a reservation was intended to include sand and gravel.

In order to resolve this ambiguity accepted rules of construction must be employed. One such rule of construction Ejusdem generis, has been so used. Ejusdem generis means of the same kind, class or nature. Under that rule, where general words follow an enumeration of persons or things, such general words are not to be construed in their widest extent but are to be held as applying only to persons or things of the same kind, class or nature as those specifically mentioned. Black's Law Dictionary 608 (4th ed. 1951). See 10 M.J. Interpretation and Construction, § 13. See also Bischoff v. Francesa, 133 W.Va. 474, 56 S.E.2d 865 (1949); Neekamp v. Huntington Chamber of Commerce, 99 W.Va. 388, 129 S.E. 314 (1925), and Jones v. Island Creek Coal Co., 79 W.Va. 532, 91 S.E. 391 (1917). As the language under scrutiny does not plainly manifest a contrary intent, we think the doctrine of Ejusdem generis fully applies.

Applying this doctrine to the language of the reservation in the instant case, the enumeration of oil and gas makes meaningless the term 'other minerals', except for minerals which are of the same kind, class or...