89 W. Va. 55 | W. Va. | 1921
A demurrer to the declaration was overruled, and the circuit court has certified its action in so doing to this court, and the sufficiency of the declaration is now under review.
Plaintiff filed its declaration in trespass on the case, alleging ownership of the surface of a .tract of land, the coal and all minerals under which, prior to his purchase of the surface had been sold by a former owner in the year 1898 to Harvey and Thurmond, with the right to mine and remove the same, the deed to which coal and all minerals' is filed with
Oyer was craved of the deed filed as a part of the declaration, whereupon it was produced and by order of the court made a part- of the declaration, and then defendant demurred to the declaration, which demurrer was overruled, issue joined and the case went to trial, resulting in a verdict in favor of the plaintiff of $100.00. Motion by defendant to set aside the verdict followed, and the court, without passing upon the motion, and believing the question of the sufficiency of the declaration of vital importance, on its own motion certified its action in overruling, the demurrer to this court for review, and stayed further prceedings.
Two deeds accompany the record, but as only one of them, the deed from Painter to Harvey and Thurmond in 1898, is’ referred to in the declaration, and that only could have been made a part of the declaration by Oyer, it, only, will be considered on demurrer.
It is well settled that papers attached to or made a part of a declaration, or exhibited therewith, cannot be considered upon a demurrer to the declaration. Such documents are evidence in support of the averments of the declaration and go to the jury. Pingley v. Pingley, 84 W. Va. 433. But inasmuch as oyer of this deed was craved without objection from plaintiff and the deed made a part of the declaration, defendant is entitled to whatever benefit he may derive therefrom. Chitty on Pleading, vol. 1, p. 431 (11th ed.) Tt seems that the parties and the court have tacitly agreed that the deed may be considered upon the demurrer, and in this particular instance, for the purposes of this case, it will be so considered.
It is also urged that inasmuch as the verdict has been rendered for $100.00, the amount in controversy is too small for appeal to this court, and no question on a pleading can be certified unless the pase is within the appellate jurisdiction of the Supreme Court. But what is the amount in controversy ? Does the verdict of the jury upon which the court has taken no action fix the amount in controversy. “All courts deny to a verdict the legal effect of a judgment" Hannah v. Bank, 53 W. Va. 86. The amount in controversy as to plaintiff is the sum for which he sues though judgment be rendered for á less sum or judgment be for the defendant. As to the defendant, it is the amount of the judgment as of its date. This is well settled. The eases cited by plaintiff, including Rymer v. Hawkins, 18 W. Va. 309; Faulconer v. Stinton, 44 W. Va. 546; and Greathouse v. Sapp, 26 W. Va. 87; are cases where judgments or decrees were rendered for less than the jurisdictional amount and the appellant was defendant below. Here neither party is appealing, but the circuit court, on its own motion and in its discretion, has certified its decision for review. Pending the motion for new trial, nothing is settled. The circuit court may of its own motion set aside the verdict. In the present status of this ease the amount in controversy is the ad dammim stated in the writ and declaration.
We come now to the question certified. Does the declaration and deed state a good cause for recovery? Defendant insists that the answer is in the negative under the decision of this court in Griffin v. Coal Co., 59 W. Va. 480. That case recognizes the rule well settled in England and the majority of the states that where one person owning the whole fee conveys the mineral therein, reserving to himself the surface, the grantee, in removing the mineral, is bound to furnish sub-jacent support for the surface in its then natural state, either by leaving sufficient of the ground to remain, or by substituting therefor adequate artificial support, unless there are eontraetural provisions either in the conveyance or otherwise
As before stated the Griffin Case turned upon the use of the word “all” in the mining clause which gave the vendee the right “to mine, excavate and remove all of said coal.” In this ease the language is different. The granting clause is: “do bargain, sell, grant and hereby convey the coal and all minerals in and upon the hereinafter described tract ’ ’; and the mining clause reads, “do also grant the right of mining, and removing the said coal and all minerals from said land”; and the warranty clause is “that they will warrant, with general warranty of title, the said coal, and other minerals, with the rights and privileges aforesaid hereby granted.” Here, the word all does not modify “coal.” The main and controlling subject about which the parties were contracting was the coal, but all minerals of whatever kind were also included, with the right to mine and remove, such as gold, silver, gas, petroleum and the like. Not only the coal was purchased but all minerals also. We think a proper construction of this deed, viewing the entire language and not any segregated words or clauses, evinces the intention of the parties to sell and purchase not only the coal, but all other minerals in the land with the right to mine and remove the same. It is easily distinguished from the Griffin Case.
Godfrey v. Weyanoke Coal and Coke Co., 82 W. Va. 665, has no application here. In that case there was an express agreement that the vendee should have the right to mine the entire amount and body of the coal, without being in any way
From what has been said, we do not find sufficient language in the deed under consideration which would deprive the grantor of his right to subjacent support in the removal of the coal by the grantee. The right of the grantee so to do is not expressed so plainly as to preclude doubt.
The demurrer to the declaration was properly overruled, and we so answer the question certified.
Affirmed.