54 W. Va. 193 | W. Va. | 1903
Lead Opinion
By grant bearing date on the 1st day of July, 1851, there was granted by the Commonwealth of Virginia, to David Hall and Henly Chapman, a tract of land containing 1,750 acres, lying in the counties of Mercer and Tazewell, the greater part thereof being in Mercer. The boundaries are set out in the grant.
On the 5th day of April, 1856, Hall and wife, and Chapman, by their deed, granted to David K. Perdue,, for the consideration of $307.75, that part of-said tract lying in the county of
At the October Rules, 1893, A. A. Chapman, Charles T. Painter, S. W. Nowlin, and sixty-five others, filed their declaration in ejectment in the clerk’s office of the circuit court of Mercer County against the defendant, Mill Creek Coal and Coke Company, a corporation, alleging therein, that, “on the 1st day of May, 1893, the said plaintiffs were possessed in fee of a certain coal bank or coal seam, known as vein or seam number 3, in a certain parcel or tract of land, lying and being mainly in the said county of Mercer and State of West Virginia, containing nine hundred and twenty-five acres being the same land conveyed by Henly Chapman and David ITall to David N. Perdue by deed dated April 5, in the year 1856.” The metes and bounds as in said deed were then set out.
Afterwards, on the 24th day of February, 1894, by order of the Court, E. W. Clark, IT. M. Bell, and Joseph I. Doran, trustees of the Flat Top Coal Land Association, lanlords of the defendant, were made defendants with the said Mill Creek Coal and Coke Company.
After sundry orders had been made from time to time in the action, the defendants, at the May. term, 1902, entered their plea of not guilty, and issue being joined, a jury was selected and sworn to try the same. At the close of plaintiff’s evidence in chief, it was all stricken out by the court on motion of defendants. The plaintiffs then declining to take a non-suit, the jury being instructed by the court so to do, found a verdict for
To the judgment aforesaid, plaintiffs obtained a writ of error and supersedeas, and say, for assignment of error, that the verdict aforesaid is contrary to the law and the evidence; that it was error to exclude plaintiffs’ evidence from the jury and direct the jury to find for defendants; and that the refusal of the court to set aside the verdict and grant plaintiff a new trial,' was also error.
Plaintiffs are the descendants and heirs at law of grantors Hall and Chapman, and claim the said coal bank or coal seam by virtue of the reservation in the deed as aforesaid. The defendants claim under said deed, and contend that the reservation therein was and is void for uncertainty, and because it infringes the rule against perpetuities; that the right of selecting a “coal bank,” reserved to the grantors in the deed to Per-due, could be exercised by the grantors only, and did not survive them; that the right reserved to select a “coal bank” does not give the right to select a coal vein; that the right reserved as aforesaid is not sufficient to siipport an action of ejectment; and that, if the said reservation is a vested interest in the land, it has been forfeited to the State, for non-entry and non-payment of taxes thereon, according to law.
For the purposes of its consideration, it is immaterial whether that part of the deed of Hall and Chapman to Perdue, upon which plaintiffs predicate their action, is called an exception or reservation. Technically, they are different in moaning, but have often been used as synonymous. “Though apt words of reservation be used they will be construed as an exception, if such was the design of the parties.” Kister v. Reeser, 98 Pa. 1.
Tn order to determine the questions raised, it is necessary, first, to ascertain the meaning of the words employed by the parties to the deed. In doing so, we must take the language used, most strongly against the grantors. Hammon on Contracts states the following rules for the construction of deeds and othey
The foregoing rules will now be applied to the deed in question. The word “bank” is defined in standard dictionaries as “the face of a coal vein in process of being mined;” “the surface immediately about the mouth of a mine;” also “to form, or lie in banks.” In geology a thin layer or stratum or rock is called-a seam. The same term is applied to coal. Vein of coal, coal bed, and coal scam are used as equivalent terms.
In 1856, when the deed to Perdue was executed, that section of country, in which the land in question lies, was almost an uninhabited wilderness. So far as this record discloses, there was but one family living near the land. There were no roads to it. As a witness describes it, “there was nothing but cow paths. There was at that time an opening in the land, from which coal was taken for blacksmithing purposes.” Another witness says, “they just cut it out, (the coal) with a mattock or something like that. There was no place in under the ground at all, at tire time, and I don’t suppose that there was anybody in the county that would have gone under the ground ten feet then. They carried the coal away on their shoulders through bushes and brush. There was no use made of coal in that part of the county then except by blacksmiths.” He further states that he never knew anybody at that time to go there, (to the place of getting coal,) with a horse or wagon; that the coal could not
It is fair to presume that coal in that section at that time had no commercial value; and that no person then knew the land was underlaid with the deposits of coal which have since been discovered. Certainly the parties to the deed did not expect the mining devolpments and great increase in the value of coal and coal lands in that section of the State, which have taken place since that time.
It appears that six veins of coal underlie the land in controversy. Since the coal developments in that region, those veins have been numbered, and are known as “Coal veins” Nos. 1, 2, 3, 4, 5, and 6, respectively, the lowest one being No. 1, the highest No. 6. No. 2 is about forty feet below No. 3, and is thirty to thirty-six inches in thickness. No. 1 is fifty to sixty feet below No. 2. No. 6 is from one hundred and fifty to one hundred and seventy-five feet above No. 3, and is between three and four feet in thickness. The thickness of vein No. 3, the one in controversy, is from seven and one half, to eight feet.
Of the tract of 1,750 acres, Hall and Chapman conveyed 925, and retained 825, acres. They also expressly reserved to themselves, their heirs and assigns forever, the use^and occupancy of any of the coal banks on said land (conveyed) which they might at any time thereafter, or that either of them, or their heirs or assigns, might jointly, or severally, select, together with the right of way for ingress and egress to and from the bank so selected.
The exception for the use and occupancy of the coal bank and for the right of way, are in one sentence. “By the term, Tight of way,’ is generally meant a private way which is an incorporeal hereditament of that class of easements in which a particular person or particular description of persons, have an interest and a right, though another person is the owner of the fee of the land, in which it is claimed.” Angelí on Highways, 3 Ed. section 1. According to this author, the exception as to the “right of way,” reserves an incorporeal 'hereditament only and not the title to any
This language certainly does not confer upon the grantors, or those who claim under them, the right to pass over the tract of land, to the several openings of the various mines which might be necessary for the purpose of mining coal vein No. 3. It is shown that it would be impracticable to mine all of the coal in that vein from one opening.
Does this clause in the deed retain in the grantors the title to any coal, a!nd, if so, to how much? If it reserves to the grantors the title to any one of the coal veins, or coal beds on the land, it reserves the title to all. The selection was to be made in the future, and, on this theory, when the selection was made, if ever, the title to the coal veins not selected, remained in the grantors, their heirs or assigns, because “no estate of inheritance or freehold, or for a term of more than five years, shall be conveyed unless by deed or will.” Code, chapter 71, section 1; Code of Va. 1860, chapter 116, section 1. If under the deed, the title to the coal passed to Perdue, he or his assigns for the same reason, held the title after the selection was made by the heirs of Hall and Chapman.
In United States v. Grundy, 3 Cranch, 337, 352, the court says: “It seems to be the very nature of a right to elect one of two things, that actual ownership is not acquired in either until it be elected, and if the penalty of an offense be not the positive forfeiture of ,a particular thing, but one of two things, at the choice of the person claiming the forfeiture, it would seem to be altering materially the situation in which that person is placed to say that either is vested in him before he.makes that choice. If both are vested in him, it is not an election, which to take, but which to reject. It is not a forfeiture of one, of two things, but a forfeiture of two things, of which one only can be retained.”
In Sir Rowland Heyward’s Case, 2 Coke, 35a, it is held that: “If I have three horses, and I give you one of my horses; in this case, the election ought to be made in the lifetime of the parties, for inasmuch as one of the (horses is given in certainty, the certainty and thereby the property begins, by election."
If we hold that the title to the coal beds or any of them remained in Hall and Chapman, their heirs or assigns, until the
If grantors reserved the title to the coal, or any part thereof, neither Perdue nor his assigns could maintain an action against a person for the digging or removal thereof from any of the veins, until after a selection as aforesaid. The lien of a judgment against Perdue, or his heirs or assigns, would not have attached to any of the coal. “The lien of a judgment attaches to the precise interest or estate which the judgment debtor has, actually and effectively, in the land.” Black on Judg. section 420; Marshall's exr. v. Hall, 42 W. Va. 641; Cleavenger v. Felton, 46 W. Va. 249.
Henly Chapman one of the grantees, died in April, 1864, and David Hall, the other, died in Indiana in 1867. Their heirs and claimants under them, at the time of the trial of the action, resided in Arkansas, Idaho, Kansas, Missouri, West Virginia, and other sections of the country. The Hall heirs were represented by their agent and attorney in fact, D. H. Torbett, a grandson of David Hall. The grantors in the deed, before their deaths, and their heirs, at different times, had removed from the section of country in which the land is situated, seemingly leaving no interests behind them. Thirty-seven years had elapsed after the execution of the deed before their action of ejectment was commenced. The marvelous developments of the last twenty-five years in Mercer and adjoining counties had made the coal underlying that tract of land immensely valuable. Vein No. 3 the most valuable of the six had been opened, and in 1893, was being mined by persons holding under the title conveyed to Perdue. Plaintiffs then, for the first time, sought to make their selection, under the reservation in the deed; selected No. 3 as the “Coal Bank” referred to in the deed; and commenced their aforesaid action for its recovery. These are cir-
This language imports a future selection and does not indicate an intention of the grantors to hold the effect and operation of the deed in abeyance. To select is to make choice of that which is most desirable or suitable.' Selection does not carry with it the idea of ownership until the selection be made. The customer- selects the article desired from the stock of the merchant. The settler selects and takes up a parcel of land from the public domain, under the provisions of the Land Act.
Plaintiffs cite numerous authorities to support their contention, among which is Mapel v. John, 42 W. Va. 30. In the opinion at page 37, Judge Holt says: “This brings ús to the evidence. Joshua M. Ross sold and conveyed to Jesse Everly, by deed dated 16th February, 1860, the land now owned by plaintiff, Mapel. In it he makes-this reservation: “The said Ross excepts the privilege" of coal for his part of the farm at the bank now in use.’ What Ross did not then sell, which he calls f his part of the farm,’ is the land now owned by defendant, John.' As to the nature and extent of defendants right to mine coal on' plaintiff’s land, it is enough for our present purpose to say that the privilege to mine coal at the bank then in use was an easement annexed to defendant’s land, the dominant tenement, to mine coal at that open mine on plaintiff’s land, the servient tenement, which was only a privilege to take coal at a particular place for a particular purposeetc. We do not think-
Testing the language of the reservation in the deed, by the rules above laid down, and giving due consideration to the time when, and the circumstances under which the deed was executed, our conclusion is that Hall and Chapman did not, in and by said deed, reserve to themselves, their heirs or assigns, the title to the coal, Or any part thereof, underlying the said nine hundred and twentj'-five acre tract of land. We are further of opinion that the exception in the deed, if good for any purpose, reserved only the right to take coal for the purposes for which it was then used in that section from any of the coal veins on the said conveyed tract of land, to be selected by the persons mentioned in the deed; and that the terms, use and occupancy of any one of the coal banks on said land, must be restricted to the purpose of digging and removal of coal for the purposes aforesaid.
It follows, therefore, that the said action of ejectment cannot be successfully maintained. In Witten v. St. Clair, 27 W. Va. 770, 771, the Court, by Judge SnydeR, says: "Accordingly in order to enable the plaintiff to sustain this action it is essential that he be clothed with the legal title and the right of possession at the time the action is instituted. The plaintiff must always in the first instance make out a legal and posses-sory title to the premises in controversy, and the defendant’s evidence may be confined to the falsifying his adversary’s proofs, or rebutting the presumptions which may arise from them.” See also Suttle v. Railroad Co., 76 Va. 284; 18 L. R. A. 781; Am. & Eng. Enc. Law, 2 Ed. Vol. 10, 482; Waits’ Actions and Defenses, Vol 3, p. 10. A plaintiff in ejectment must at the time of instituting his action, and at the time of its trial, have a legal title to the land he sues for. Am. Dig. Cent. Ed, Vol 17, 1960.
In Pennsylvania, where great latitude obtains, there being no courts of chancery, it has been held that ejectment is almost the only action for trying title to land. “But the action will not lie for a mere privilege, or incorporeal hereditament. The general rule is recognized in Pennsylvania, as elsewhere, that ejectment will only lie for things whereof possession may be delivered by the sheriff. The case of common appendant or ap
The exception in the deed, being a privilege only, as the right to take water from a spring, or of watering stock at a stream on the lands of another, is an incorporeal hereditament, for which the action of ejectment will not lie. A decision of tire other questions presented is therefore unnecessary.
For the foregoing reasons, there is no error in the judgment complained of. It must be affirmed.
Affirmed.
Dissenting Opinion
(dissenting) :
Being of the opinion that the exception contained in the deed, though in form a reservation, docs not lack that certainty which is necessary to vest a title, and that, by its express terms, it carries an interest in, and not a mere right to do something upon, the land, I am compelled to dissent from the conclusion to which my associates have come.
This is not a case in which a choice to take one of several different things is'reserved or granted. It is an express exception, which is practically the same thing as a grant, of an interest in one thing which is made certain by the description found in the deed. That one thing is the tract of land. The only question left for determination is the extent of the interest excepted, or the particular designation of the part excepted. Nobody could hesitate in saying that it was competent for the grantors to reserve to themselves all the coal in the tract of land granted. Having the power to reserve all, can it be said that they had not the power to reserve part of the same thing? The case of the United States v. Grundy, 3 Cranch 337, and the hypothetical case put in Sir Rowland Hayward’s Case, 2 Coke 359, illustrate an entirely different proposition from the one involved
“And it was said, if a man gives two acres to another, habenr dum one acre to him in fee, and the other acre to him in tail, and he aliens both, and hath issue, and dies; in this ease, the issue may bring a formation in tiiscender for which acre he will, for the election is not determined by Ms death; for am estate< passes presently by the livery, and the issue shall take by descent.” Sir Rowland Heyward’s Case, 2 Co. 35a, 37a. At the same page, Lord Coke says: “When nothing passeth to the feoffee or grantee before the election, to have one thing or the other, there the election ought to be made in the life of the parties, and the heir or executor cannot make the election. But when an estate or interest passeth presently to the feoffee, donee, or grantee, there election may be made by them, or by their heirs or executors. When a thing passeth to the donee, or grantee and the donee or grantee hath election in what manner or degree he will take it, there the interest passeth presents ly, and the party, his heirs or executors, may make, election when, they will.”
This principle was applied in Anderson v. Donelsons Exrs., I Yerg. (Tenn.) 197, under the following conditions: Anderson had covenanted to convey to Donelson seven hundred acres of land to be selected in a square or oblong out of any one of the four comers of a large tract. After Donelsom’s death, his executor selected the land and Anderson refused to convey it. .Thereupon an action was brought on the covenants. In deciding the case, the judge quoted and applied a part of the language above quoted from Lord Coke, and then said: “It is a
This is not an exceptional case. A great many others so hold in several different states, some of which are cited in support of the following text, found in 17 Am. & Eng. Enc. Law 8 Ed. 663: “Where a conveyance is made of a certain number of acres of a tract of land, not described by metes and bounds, the grantee becomes a tenant in common with the grantor or the other owners, where the land is held in common, of the entire property, the extent of his interest being determined by the proportion which the number of acres conveyed bears to the number of acres in the entire tract.”
These decisions have settled what, in early times, was an open question, namely, whether in such case, there was a tenancy in common. “Upon a covenant, in consideration of marriage, to stand seized of so much land as shall be of the yearly value of forty marks; it hath been a question, whether they to whom the assurance was made, might enter into any part of the land of the value of forty marks, at their election, and hold the same in severalty; or if they should be only tenants in common with the other; and whether they may choose one acre in one place, and one acre in another; and so through the whole land where they please.” 3 Bac. Abr. 307, 308. The question was what the relation between the parties should be, but no doubt was expressed that an interest attached and passed by such a covenant, although far more uncertain in its nature than that which is excepted here by the clause in question.
As the relation of co-tenancy in the land is credited by this exception, it was in the power of Perdue, the grantee, or any person claiming under him, to compel, at any time, an election on the part of the grantors or their heirs, just as in any other case. One co-tenant may, by a proceeding for partition, have his interest set apart for his separate use and enjoyment.
Before the statute, authorizing conveyances of land by deed, without livery of seizin, this exception could hardly have been made, and if it could have been made, it would have failed, if
Nor do I think the exception can be limited to the creation of a mere incorporeal hereditament, the mere right to go upon the land and dig and carry away, in common with the other owners, coal. The exception is of the use and occupation of the coal bank. Occupancy, when applied to real estate, implies an estate in the land. An occupant of land is a tenant or an owner. If he occupies at the will of the owner, he has an estate at will or at sufferance; if for a period of years, an estate for years, if for a life time or any greater period, he has an estate of freehold. The mere right to go upon land and do certain acts, such as to take away the wood or coal, is not an estate in the land of any kind or character. Certain grants or reservations, in re
Rex v. Inhabitants of Eatington, 4 T. R. 178, holds that, “If A. residing in a cottage of his own grant it by lease and release to B. in fee, in consideration of £361, with a proviso That A. shall live in and occupy the said cottage with the appurtenances as he theretofore had done and then did for life;’ B. only takes an estate for life in A.” Lord Kenyon said: “If this question had depended on the first words in the proviso, I should have thought that they would have been satisfied by determining that only a liberty to inhabit the cottage was reserved to the father; but the word ‘occupy’ carries the interest reserved still farther, and shows that the whole estate was intended to be reserved to him.” Ashhurst, J., said: “The word ‘occupy’ in the proviso, is extremely material to show that the deed must have this operation; for it is a reservation of the thing itself, of the whole estate.” Buller, J., said: “Something more was meant than a bare license to inhabit or live in the house, for the word ‘occupy’ is added to them.” The same force was given to the word “occupy” in Rabbeth v. Squire, 4 De G. & J. 406, where a will gave a joint use and occupation of land. Applying the reasoning found in the above quotations to the language of this exception, it might be said that, if it had stopped with the word
Thus it, clearly appears that, unless a different intention on the part of the parties to the deed can be found, the coal bank itself was excepted. Where is this intention to be found? Not in the deed. In order to hold that less than an estate passes under the exception, it must be 'found that the words “use .and occupancy” were used in some sense different from their technical meaning. The only ground offered for this purpose is the fact that, at the time of the conveyance, the use of coal was limited, and it was not mined extensively, if at all, for commercial purposes, and not mined at all in that section of the country except for blaeksmithing purposes, and, therefore, the exception was only intended to give to the grantors the right to go upon the land and take coal for such purpose. Had Hall and Chapman been blacksmiths anA using a coal bank for that purpose, that fact might have given some color to this contention. But they were not so using it, nor were they blacksmiths. There was an opening on the land from which coal was taken for blaeksmithing purposes, and the inference to be drawn from these circumstances, if any, is that Hall and Chapman were receiving pay for the coal so taken and thus deriving an income from the land which they desired to continue. Moreover, they were lawyers and are supposed to have known the legal meaning and force of the terms used in the exception, a circumstance which strongly argues against any intent different than from that imported by the technical meaning of the terms used. I do not see that the purpose for which the coal was then used has any bearing upon the question. If it be true that only such use was made of this mineral at that time, might not the grantors just as well have reserved to themselves the exclusive right of one coal bank for that purpose as for any other purpose? If such ignorance of the use and value of the mineral obtained at that time, may we not well suppose that the parties were wholly ignorant of the extent of that mine and that the grantors, in order to assure themselves of a sufficient supply, were careful to reserve the whole of it to themselves? The grantee being equal
Again, it is said we must ascertain the intent by the conduct of the parties under the deed. What conduct? What use of this coal mine have the grantors or their heirs made? What act of theirs can be pointed to as indicating their construction of this language? Does it appear that, under it, they have confined themselves to the. exercise of a mere liberty in taking coal ? By no means. It appears that they have done nothing under it. Instead of conduct or acts under it, showing intent or construction, want of action appears. How then, can the rule of conduct be applied ? It appears that, since the deed was executed, some thirty-seven years have elapsed, in all of which there has been absolute silence and inactivity on the part of the grantors and their heirs, respecting the reserved coal mine.
A good illustration of the construction of a reservation determined by the acts of the parties under a deed is given in Jones on Beal Prop, in Conv., at section 523, where he says: "Thus, whore there was an exemption and reservation ‘of sixty-eight feet of land from the east end of the described premises/ and the grantor retained possession of a lot of that width along the whole east side of the land, putting the purchaser in possession of the remainder, and the parties built a fence along the line thus fixed, and the grantor built a house and bam on the portion held by him, and after many years conveyed the tract as being sixty-eight feet wide, it was held that the acts of the parties established the interpretation that the exception was of a strip sixty-eight feet wide along the east side of the lot, and not merely of sixty-eight square feet, which would be a strip of the width of only six inches.”
In that case there was action, not want of action; things done, not things omitted; affirmative conduct, not entire want of conduct.
The last epptentign is that, by 'the use of the wotds "one of
If the court had adopted this view, the result would have been embarrassing to the company now operating in the vein of coal for the recovery of which this suit was instituted. It would have been the result of their own lack of caution and prudence. They must have known this exception was in the deed under which they claimed, and, as prudent men, it was their duty to acquire that outstanding interest before expending their money in the development of the mine.
