271 F. 864 | 4th Cir. | 1921
The defendants below are plaintiffs in error here, but it will be more convenient to refer to them and to their adversary in accordance with the positions they had in the trial court.
The plaintiff in an ejectment suit sought to recover from the defendants a number of tracts of land aggregating upwards of 1,300 acres, all parts of what are known as the Samuel Smith grants, the exterior bounds of which inclose some 206,000 acres, but from which previously granted tracts having a combined surface of 86,000 acres had been excepted. Of the land in controversy the plaintiff claimed the full ownership of over 1,200 acres and the mineral rights under some 165 more. The court instructed a verdict for the defendants for 11 acres, and for the plaintiff for all the rest, except 4 acres, and the jury gave the last to the plaintiff. Such of the defendants as have sued out this writ of error seek the reversal of the entire judgment, in so far
Such of their objections as go to the whole case assail the admission of certain evidence given by the plaintiff for the purpose of sustaining the burden of proof resting upon it to locate the exterior boundaries of the'Smith grants, and to show that none of the land within those boundaries, but excepted from the grants, included any part of the land claimed by defendants. We cannot feel that there is any substantial merit in any of .them. The exterior lines of the Smith grant have been before established in other cases. There appears to be no real question as to their location. We do not find it necessary or expedient to consider whether any of the somewhat.meticulous objections made to some of the testimony of one of the surveyors produced by the plaintiff are as a matter of technical law well founded. If all of them in which there is any shadow of substance are sustained, there would be enough proof left to justify the instruction given by the court that the plaintiff had shown an undisputed record title to all those portions of the Smith grants included in this litigation. The evidence by which the plaintiff attempted to show that none of the land it sought to recover was included in any of the tracts excepted from the Smith grants was, under the West Virginia law as we understand it, both admissible and, in the absence of any attempt at rebuttal, conclusive. Winding Gulf Colliery Co. v. Campbell et al., 72 W. Va. 474, 78 S. E. 384; Hector Coal Land Co. v. Jones et al., 79 W. Va. 627, 92 S. E. 102.
“all the minerals, mineral substances and oils of every sort and description, * * ' with the privilege of mining, digging and excavating for said minerals, mineral substances and oils, and of boring and pumping for said oils, and of erecting and maintaining thereon all the necessary buildings, oil tanks, machinery and apparatus for working and operating all mines, pits, excavations and oil wells which now are or may be hereafter opened, worked and operated,” on any part of the real estate, and “for storing and taking proper care of the products thereof. * * * ”
^ The reservation also included all necessary rights of way, with the right and privilege to operate and maintain railroads and other roads and_ pipe lines, such as might be necessary to the successful and convenient discovery, working and operating of the mines, pits, excava
Some 13 years ago the Supreme Court of Appeals of West Virginia, upon full consideration, declined to follow Dunham & Shortt v. Kirkpatrick, supra, and held that a reservation of “all minerals” includes petroleum and natural gas, in the absence of anything- to the contrary in the deed itself, or fairly deducible from any facts within the knowledge of the parties, at the time. Sult v. A. Hochstetter Oil Co., 63 W. Va. 317, 61 S. E. 607. It is contended for the defendants that the mention in the reservations of mines, oil wells and oil tanks, and the silence as to gas and gas wells, shows that the parties had not gas in mind. That is certainly quite possible, and indeed highly probable. It is urged that they did not intend to reserve anything which could not be obtained by mining or boring oil wells, as distinguished from those for natural gas. Reliance is put upon the comparatively recent West Virginia case of Rock House Fork Land Co. v. Raleigh Brick & Tile Co., 83 W. Va. 20, 97 S. E. 684, in which it was said that the—
“term ‘mineral’ is not a definite one, capable of a definition of universal application, but is susceptible of limitation according to the intention of tlie parties using it, and in determining its meaning regard must be bad, not only to the language of the deed in which it occurs, but also to tlie relative position of the parties interested, and to the substance of tlie transaction which the deed embodies.”
In conformity with the doctrine thus laid down it was held that a grant of coal and all other minerals, as well as of certain rights to be enjoyed in the production of such minerals, the rights being those ordinarily required in mining operations, should be restricted to such minerals as are ordinarily procured by mining, and that fire clay was not included among them.
In the case at bar it must be remembered that gas as well as oil can be obtained by boring wells, and, what is obviously of importance, the right of the owner of the surface to its beneficial use is no more interfered with by the production of gas than it would be by that of oil, if as much. Under the settled law of West Virginia it would appear that the words of reservation used were in themselves adequate to cover natural gas, and the relation in wrhich the parties stood at the time the deeds were made makes this conclusion all the more reasonable. From the recitals in the grants it appears, as has already been stated, that the plaintiff’s predecessors in title had instituted ejectment proceedings against the defendants or their grantors, and a compromise was reached by which the plaintiff’s grantors conveyed to the defendants, or to those under whom they claim, the surface of the land of which they were
It follows that so much of the judgment in favor of the plaintiff against the defendant Minerva Adams as affects the 4 acres in question must be reversed, and that in all other respects and against all the other defendants it should be affirmed.