Williams v. South Penn Oil Co.
| Decision Date | 03 December 1902 |
| Citation | 52 W.Va. 181 |
| Parties | Williams v. South Penn Oil Co. |
| Court | West Virginia Supreme Court |
1. Construction of Statute.
The word "surface" when specifically used as a subject of conveyance has a definite and certain meaning, and means only that portion of the land which is or may he used for agricultural purposes, (p. 186).
2. Conveyances.
M. and D. jointly owned in fee simple a tract of 180 acres of land. M. conveyed to W. "All the coal in, on, or underlying the undivided one-half" of the tract and granted to W. the right to make and maintain on said tract of land such openings as might he necessary for ventilation, for drainage and for taking out all of the coal without any liability for injury to the surface of said land, or anything thereon, by reason of the mining of said coal, and the right to remove same, with rights-of-way, etc. D. conveyed to W. his undivided one-half of the tract in fee.. W. conveyed to M. "All the surface of the one hundred and eighty acres undivided that was so conveyed to him by said D." retaining the right to make and maintain on said tract of land such openings as might be necessary for ventilation, for drainage and for the taking out of all the coal without any liability for injury to the surface of the land or anything thereon by reason of the mining of said coal, and the right to remove same, and rights of-way, etc. Held: The said last conveyance from W. to M. was an express grant of the surface only and severed it from all underlying strata, (p. 186).
3. Joint Property.
The coal and gas in and under the said tract of 180 acres of land is the joint property of W. and M. or their heirs, assigns or grantees. (p. 190).
4. Construction of Words.
It is the. safest and best mode of construction to give words, free from ambiguity, their plain and ordinary meaning. (p. 189).
Appeal from Circuit Court, Harrison County.
Action by John J. Williams against South Penn Oil Company and others. From a judgment for defendants, plaintiff appeals.
Affirmed,
Millard F. Snider, for appellant.
Fleming & Fleming, C. W. Russell and Davis & Davis, for appellees.
By decree of the circuit court of Harrison County entered on the 27th day of May, 1890, in the case of W. J. Deison and John W. Monroe against Cruger W. Smith and. others for the partition of three hundred and ninety-seven acres of land, there was assigned to said Deison and Monroe, the plaintiffs, in fee simple and in severalty, a tract of one hundred and eighty acres known as lot No. 1, in the partition. On the 20th day of August, 1891, John W. Monroe and wife in consideration of one thousand two hundred dollars conveyed with general warranty, to Benjamin Wilson "All the coal in. on or underlying the undivided one-half of a certain tract of land situated in said county, containing one hundred and eighty acres," and granting also to said Wilson the right to make and maintain on said tract of land such openings as might be necessary for ventilation, for drainage and for the taking out of all the coal without any liability for injury to the surface of said tract of land, or anything thereon, by reason of mining and removing the coal; and all rights-of-way and privileges necessary to the proper mining and removing of the coal; and on the 11th day of September, 1891, William J. Deison and wife, in consideration of one thousand two hundred dollars conveyed with covenants of special warranty to said Wilson their undivided one-half in fee simple of said one hundred and eighty acres of land. On the 28th day of September, 1891, said Benjamin Wilson conveyed to John W. Monroe the surface of the said one hundred and eighty acres, undivided, which was conveyed to him by said Deison in the following words: "Now this deed further witnesseth, that Wilson docs hereby grant to the said John W. Monroe all the surface of the said one hundred and eighty acres, undivided, that was so conveyed to him by said Deison. This conveyance is for a valuable consideration, but the said Wilson retains the right to make and maintain on said tract On the 7th of April, 1893, John W. Monroe and his wife conveyed the said one hundred and eighty acres of land, to John J. Williams an undivided two-thirds interest and to William T. Williams undivided one-third interest, excepting and reserving therefrom the "Coal in and under the same as fully as the same has been heretofore conveyed, together with all mining rights and privileges granted and reserved in said deeds from Monroe to Wilson and from Wilson to Monroe, respectively, to all which deeds references are here: made." On the 12th day of June, 1899, Benjamin. Wilson and others, leased to the South Penn Oil. Company, its successors or assigns "For the, sole and only purpose of mining and operating for oil and gas and of laying pipe lines, building tanks," etc., four several tracts of land containing in the1 aggregate about five hundred acres, including the tract of one hundred, and eighty acres; the lessee to deliver to the credit of the lessors, their heirs or assigns free of cost, in the pipe lines the equal one-eighth part of all the oil produced and saved from, the leased premises and. to pay two hundred dollars per year for the gas from each and every gas well drilled on. the premises, the product from winch should be marketed and used off the premises. On the 21st day of June, 1899, John J. Williams and W. T. Williams, leased for the same purposes to the said South Penn Oil Co., the said tract of one hundred and eighty acres of land, the lessee covenanting "To deliver to the credit of the first parties, their heirs or assigns, free of cost, in the pipe line to which it may connect its wells, their proportionate share of the equal one-eighth part of all oil produced and saved from, the leased premises" and "To pay their proportionate share of two hundred dollars per year for the gas from each and every gas well drilled on said premises, the product from which is marketed and used off the premises." At the November Bules, 1900, John J. Williams and William T. Williams filed their bill against the South Penn Oil Co., the Eureka Pipe Line Co., Benjamin Wilson, and others, in the circuit court of Harrison County, claiming to be the sole owners of the one-eighth royalty of the oil and gas in the one hundred and eighty acres and praying that it might be so decreed to them, and. that there being no contention or controversy as to their being entitled to the one-half of said royalty, that the defendant, South Penn Oil Co., be required to deliver up to them the one-half of royalty or one-sixteenth of the oil. The defendant, South Penn Oil Co., fded its answer denying the allegation of the bill that it entered upon the said tract of land exclusively under the lease made by the plaintiffs, but that it entered under the said lease and also under the Wilson lease, denied that it had. failed or refused to sign the division order or orders under which the Eureka Pipe Line Co., could and would have delivered the one-eighth of royalty oil. of all. produced and being produced from the leased premises; but it was the truth that it had refused, to sign such order as demanded by plaintiffs under which they would have received the whole of the one-eighth royalty, and denied that it had covenanted in its lease to deliver the one-eighth royalty to plaintiffs; that it did not pretend to decide and say that plaintiffs might not be entitled to some part of said oil but if they had title to some part thereof that such part, if anything, was less than the amount or part claimed by them in their bill, and asked that plaintiffs be required to show to the court what interest they had in the royalty in the oil, as well as their proportionate share of two hundred dollars per year for the gas wells, and expressed their readiness to deliver the one-eighth royalty as the court might direct it to be distributed among the persons entitled to the same. Defendant, Benjamin Wilson, filed his separate demurrer and answer to the bill claiming to be entitled, with his co-lessors, to one-half the royalty and price of the gas produced from said one hundred and eighty acres and denied that he had conveyed to the said Monroe anything more than the surface of the one equal undivided moiety of said one hundred and eighty acres. On the 7th of February, the answers of the several defendants were filed to which plaintiffs replied generally and joined in the demurrer and there being no adverse claim to one-half of the royalty of the oil and one-half of the gas rental claimed by plaintiffs it was ordered to be delivered to them and the residue of the oil was directed to remain in the pipe lines until further orders from the court. On the 23d of May the death of defendant Benjamin Wilson was suggested and the cause revived in the name of his...
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