Hagan Co. v. Norton Coal Co.

| Va. | Sep 20, 1923

Sims, J.,

after making the foregoing statement, delivered the following opinion of the court:

The questions presented by the assignments of error ■will be disposed of in their order as stated below.

1. To what extent did the proposed sales of surface of land, injoined by the decree under review,, threaten to create, and to what extent would the execution and delivery of the deeds of conveyance of the form expected to be made in completion of such sales, have created a cloud upon the appellee’s title or right to-the use of the surface of, and other things on, the land embraced in the leases aforesaid?

In view of the evidence and of the authorities on the-subject, we are of opinion that the proposed sales of any portion of the surface of that portion of the land lying-south of the Steinman land, threatened to create, and that the conveyance of any portion of such surface by the form of the deeds in question, if made, would have-created, a cloud upon the title or right of the appelleein question.

. The evidence shows that the appellee was and is entitled under the provision of its leases, and for the purposes therein specified, to the use of all of the surface of' and also to the use of the timber (under the size mentioned) and the sand, stone and water on that portion of the land just mentioned, at and from the time -this-suit was brought until the operations of appellee under such leases are completed, which may continue for forty years from May 1, 1919.

Deeds of the form mentioned, when executed and delivered, would, as we think, have- been understood by the grantees as conveying to them a present right and title to the surface of land (and to the timber, sand, stone and water thereon as appurtenant thereto) therein purported to be conveyed, subject to be terminated for the time being, not at once, but only at some ‘future-time by the future coming into and during the existence-of the right of appellee to such surface, etc., or to some portion thereof, under the leases held by it referred to in the deeds. And we are of opinion that, on their face, such would be the proper construction of such deeds, and that the natural result of such deeds would be the taking and retention of possession by the grantees thereunder, unless and until prevented by litigation. Such deeds, therefore, would not have been void on their face, but they would have been apparently valid to convey a present right and title to the surface of the land, etc., purported to be conveyed thereby. It would have required extrinsic evidence in the future, other than the mere production of the leases referred to in the deeds, to defeat such operation of the deeds; namely, the production, in separate actions or suits against the several grantees, of the same character of •extrinsic evidence which has been introduced in the instant suit, showing that the appellee, at the time such deeds were made, held, under said leases, the prior right and title to the use of the surface, etc., purported to be ■conveyed by the deeds.

It is well settled that the court below had jurisdiction to injoin the sales in question of any of the surface, etc., mentioned, to the use of which the appellee was entitled at the time of suit, for the purpose of preventing a threatened cloud upon appellee’s right and title thereto (6 Pomeroy’s Eq. Jur. [3rded.], sec. 726; Pixley v. Huggins, 15 Cal. 127" court="Cal." date_filed="1860-07-01" href="https://app.midpage.ai/document/pixley-v-huggins-5434336?utm_source=webapp" opinion_id="5434336">15 Cal. 127); or for the purpose of ■preventing the lessor from violating the covenants of •said leases (5 Idem, sec. 286); or in order to prevent a multiplicity of suits, it being a case falling within the fourth classification of Pomeroy (1 Idem, sec. 255); or to prevent the disturbance of existing easements (6 Idem, sec. 545).

In section 726 of the learned work just quoted, this is «aid:

“See. 726. Prevention of threatened eloud.—Asa court of chancery may undoubtedly entertain a suit to remove an existing cloud upon a title, so also it may, in a proper ease, interpose its authority to prevent, by injunction, a threatened act from which such a cloud must necessarily arise. In such cases, however, ‘the danger must be imminent and not merely speculative or potential.’ ” Citing numerous cases, and among them Pixley v. Huggins, supra, 15 Cal. 127.

In the last named case, in the opinion delivered by Field, C. J., this is said: “The jurisdiction of the court to enjoin a sale of real estate is coextensive with its jurisdiction to set aside and order to be cancelled a deed of such property. It is not necessary for its assertion in the latter ease that the deed should be operative, if suffered to remain uneancelled, to pass the title * * * . It is sufficient to call into exercise the jurisdiction of the court that the deed creates a cloud over the title of the plaintiff. As in such case the court will remove the cloud, by directing a cancellation of the deed, so it will interfere to prevent a sale, from which a conveyance creating such cloud would result. (Petit v. Shepherd, 5 Paige, 501.) And every deed from the same source through which the plaintiff derives his real property must, if valid.on its face, necessarily have the effect of creating such eloud upon the title. * * *

“The true test, as we conceive it to be, by which the question, whether a deed would cast a eloud upon the title of the plaintiff, may be determined, is this: Would the owner of the property, in an action of ejectment brought by the adverse party, founded upon the deed, be required to offer evidence to defeat a recovery? If such proof would be necessary, the cloud would exist; if the proof would be unnecessary, no shade would be cast by the presence of the deed. If the action would fall of its own weight, without proof in rebuttal, no occasion could arise for the equitable interposition of the court; as in the case of a deed void upon its face, or which was the result of proceedings void upon their face, requiring no evidence to disclose their illegality. * * *”

The other grounds of jurisdiction above mentioned are so well settled that we need not quote from the authorities on those subjects cited above.

The application of the authorities which we have cited is not controverted in argument for the appellants as to any surface of the land, etc., to the use of which the appellee was entitled under the provision of the leases giving the appellee such right when “necessary or convenient,” for the purposes mentioned in the leases. The issue made by the pleading and the argument of counsel of the appellants on this subject is one of fact; and it is contended on behalf of the appellants, in substance, that the evidence for appellee tends to show that the appellee at the time of suit brought was not entitled, under the provision of the lease just mentioned, to the use of “all of the surface of the land,” because the same was not then “needed and never will be needed for the necessary operation of the coal mines;” but no definite position is taken for appellants as to what portion of the surface the evidence for appellee establishes as “necessary or convenient” for the purposes aforesaid.

The evidence on this subject consists entirely of the testimony introduced for appellee. The appellants introduced no testimony whatever on the subject. And the testimony for appellee is very definite and satisfactory with respect to the surface, etc., necessary or convenient for the aforesaid purposes, so far as the portion of the surface of the land lying south of the Stein-man land is concerned. It shows that, due to the different and very greatly enlarged plans of operation in the execution of which the appellee was engaged at the ‘time of suit, determined upon because of the comparatively recent discovery of a third vein of coal underlying the whole of such portion of the land, and to the objections which had been made to the further use of land owned by another corporation for dumping ground, for buildings, etc., etc., theretofore used for such purposes, in connection with the mining and coking operations of appellee on the portion of the land just mentioned, a much larger surface of land is necessary or convenient for appellee’s operations than was necessary or convenient before the said discovery of the additional vein of coal. And while it is a subject which admits of debate, after carefully considering the testimony introduced for the appellee with respect thereto, we are of opinion that to the extent of the portion of the surface just mentioned, the evidence is sufficient to show that the time had arrived, when the suit was instituted, when that much of the surface of the land, etc., was “necessary or convenient” for the purposes aforesaid. The great detail of this evidence and its volume makes it impracticable to discuss it in detail in this opinion.

In this connection, however, we wil-1 add this: “We think that the position taken for appellants, to the effect that the appellee is not entitled (under the provision of the lease giving it the right to the use of “so much of the surface of the land, * * * [etc.] as may be necessary or convenient for mining or coking coal and for the construction and repairing of buildings, roads, railroads, tipples, tramways, bridges, oven and other structures”) to any surface, or other things mentioned, unless and until actually “needed,” unduly restricts the meaning of the terms used in the leases. Certainly “necessary or convenient” is less restrictive in meaning than if the single*word “necessary” had been employed. Webster defines “convenient” as meaning “fit, or adapted to an end; suitable; * * * appropriate.” We think that the context in which the word “convenient” is found in the said leases limits its meaning so that it cannot be properly construed to embrace every use for which the surface may at any time in the future be convenient; but that it does embrace every use for which the surface, etc., was convenient at the time of suit and would be reasonably necessary in the immediate future following the institution of the suit, in order to carry into execution plans of the appellee already actually made and in process of execution for its mining and coking coal operations under said leases. And it is in the light of this meaning of the word “convenient,” as used in the said leases, that we have reached the conclusion we have as to the effect of the testimony on the question under consideration.

It is apparent, however, from the evidence, that it is as yet uncertain and speculative whether the use of the surface of the other lands involved in this suit (to-wit the A. W. Nash tract and the land north of the Steinman land) will ever be “necessary or convenient” for the mining or coking operations of the appellee. Meanwhile the appellants are entitled under said leases to such use of the surface of such other lands as may not, if terminated for the time being when the rights of the appellee accrue and while they exist under such leases, affect the latter rights; and the appellants may lawfully sell and convey such rights belonging to them.

If and when the rights of the appellee, or any of them, accrue as aforesaid, and while they exist, the grounds of jurisdiction above mentioned, for removal of existing cloud upon its right or title, or for preventing the violation of covenants of the leases, or for preventing multiplicity of suits, or disturbance of existing easements, will afford the appellee ample remedy in one suit against all of the grantees of the surface of the lands, etc., mentioned in the next preceding paragraph, and also against the appellants as to any of such surface, etc., remaining unconveyed away by the latter.

2. Did the proposed sales of the “mineral” underlying the land involved in suit, and “mining” rights therein, violate the provisions of the leases held by appellee?

The record is obscure with respect to what kind of sales and conveyances were threatened to be made of the “mineral” in question. On the face of the advertisement it appears that such mineral as underlay certain of the respective parcels advertised for' sale was proposed to be sold as appurtenant to’ such respective parcels. Coal is the only mineral disclosed by the record as is supposed to underlie the land. The sale of the mineral underlying the land would, therefore, have been the sale of the coal underlying it, which belonged to appellee or its successors during the life of the leases. Hence such sales and conveyances as advertised would have violated the provisions of the leases aforesaid.

If it was proposed to sell and convey to the purchasers of said respective parcels, as appurtenant thereto, separate interests in the rental and royalty return and in the supervisory rights of the appellants as lessors, that would have violated the provisions of the lease, which, in effect, rendered such rights of the lessors incapable of division into separate and distinct entities. Only the whole or definite undivided interests in such rights of the lessors, to be enjoyed and exercised in common, were capable of being sold in conformity with such rights as they are created and provided for in the leases.

However, the appellants were and are entitled to present and future rights or interests embraced in the leases mentioned in the next preceding paragraph, such as, for example, to the right to receive the rent or royalty accruing from the leases, and other rights or interests— and they had the right to sell and transfer the whole or definite undivided shares of such interests, to be enjoyed by the purchaser or purchasers during the life of the leases.

It follows from what we have said above that the decree under review is in part erroneous. We will, therefore, under the statute (Code, see. 6365), enter our decree reversing the decree under review and directing that the defendants and each of them, their agents, servants and employees, and each and every of them, be and they are enjoined and restrained from selling or offering to sell any of the surface of any of the portion of the land in the bill mentioned which lies south of the Steinman land, or any timber growing thereon, except such timber as exceeded twenty inches in diameter as of April 12, 1894, if any there be, or any sand, stone, or water thereon; and from selling or offering to sell any rights growing out of any of the lands involved in this suit and held by appellants as lessors under the leases mentioned in the bill, except as a whole, or in definite undivided shares, to be enjoyed and exercised in common, in pursuance of the provisions of the leases. But such decree will further provide that the appellants may sell or offer for sale as a whole, or in definite undivided shares, to be enjoyed and exercised as just stated, their rights just mentioned held as lessors, growing out of all of the lands in the bill mentioned; may sell or offer for sale, in any way they may choose, any reversionary interest they may have in all or any of the land in suit after the expiration of said leases, but not so as to authorize or allow the purchaser to take possession of or exercise any control whatever over the surface of any part of the land lying south of the Steinman land, so long as the said leases remain in force, and may sell or offer for sale any or all of the unsold surface of the A. W. Nash tract and of the other land in the bill mentioned which lies north of the Steinman land, provided the conveyance, or conveyances, of sueh surface to the purchaser, or purchasers, shall, in addition to such reservations as the appellants may make in their own behalf, expressly set out, in substance, that the conveyance, or conveyances, is or are made subject to the coal mining and coking leases of such land held by appellee or its successor, or successors, and sueh renewals thereof as have been or may be made, which are or may hereafter be recorded in the clerk’s office of Wise county, Virginia, with the further express provision that all the rights conveyed shall terminate for the time being if, and when, and to the extent, and during the time, they shall at any time thereafter conflict with the rights of appellee, or its successor or successors, held under said leases, or any renewal of any of them, and that the rights conveyed on the A. W. Nash tract and on the land north of the Steinman land, respectively, shall terminate for the time being, if they have not theretofore been affected as aforesaid, upon the beginning and during the coal mining operations of appellants or their successors under said leases or any renewal of any of them, upon sueh respective portions of land. Costs will be decreed in favor of appellants.

Reversed and final decree.