63 W. Va. 218 | W. Va. | 1907
John Higgins has appealed from two .decrees of the circuit court of Marshall county, sustaining demurrers to his original and amended bills, seeking adjudication in his favor of title to the coal in a certain tract of land.
David Roberts, being the owner of 400 acres of land, bordering on the Ohio River, conveyed to Simon B. Purdy 13 acres and 87 poles thereof, by a deed,-dated January 7, 1843, and describing the same as follows: “ Beginning at
As bearing on the interpretation of this clause, under the, rule of practical construction and also on the defences of loss of title, by laches and non-user, if any was passed by it, the parties have deemed it'important to set forth the subsequent mutations of title of the several portions of the original tract. By a deed, dated September 24, 1845, Roberts and wife conveyed 228 1-2 acres of the residue to Elisha Lindsey. By a deed, dated May 4, 1855, Purdy conveyed the tract containing 13 acres and 81 poles to John C. Snyder, “with the privilege of mining for coal as-expressed in the deed from David Roberts and wife to said Purdy,” Snyder and wife having on the same day conveyed it to E. H. Caldwell, in trust to secure to Purdy payment of a certain sum of money, and afterwards made default, for which the trustee sold the property to Purdy,
Alleging intention on the part of said mining company to take and carry away the coal in question, under claim of title thereto, the plaintiff prayed an injunction, inhibiting and restraining it from so doing.
As bearing on the question of the intention of the parties to the deed conveying the 13 acres and 87 poles tract, together with the right to undermine the adjacent lands southward, the bill avers substantially that the land granted was. practically worthless for agricultural or any other purpose, except that a small portion thereof bordering on a creek emptying into the Ohio River, was suitable for the erection of buildings, tipples and other appliances necessary to the-operation of a coal .mine, and that, at the date of the deed, the only means of transporting coal from that neighborhood to distant markets was the Ohio River; and that, just back of the river hill on which the granted land lies for the-most part, the land is suitable for agricultural purposes. The bill further shows that extensions of the northern
If the clause, “should the said Purdy,-his heirs or assigns, open a coal mine on said tract of land,” states a condition precedent to the vesting of title to the coal in the adjoining lands, assuming, for the present, that the grant of the privilege of undermining amounts in law to a grant of the coal in place, the grant would no doubt fall within the rule against perpetuities; for, as no time is fixed, the coal mine might be opened in the remote future, a hundred or five hundred years hence, and so beyond the period of a life or lives in being, ten months and twenty-one years. Starcher v. Duty, 56 S. E. 524; London &c. Ry. Co. v. Gomm, 20 Chy. Div. 582. If, however, the clause, which, it is said, effected a grant of the coal in place, is susceptible of any construction which will pass title to something, either the coal, or a right to mine coal, the court is bound to give such construction, to the end that the intention of the parties may be effected and that the clause may not be invalid, agreeably to the maxim and rule of construction, ut res mac/is valeat quam pereat, meaning that the thing, the deed, shall avail rather than perish. Barbour, Stedman & Herod v. Tomkins, 58 W. Va. 572, 590. “ An instrument intended to operate as a deed should so operate, if not legally impossible for it to do so.” 13 Cyc. 604. This is a principle applicable to the construction of all instruments and especially statutes, which are always so construed, if possible as to avoid conflict with the constitution. “Where the language of an instrument is. susceptible of two constructions, one of which will render it valid and the other invalid, the former will be adopted. Likewise an instrument will be construed, if possible, as being made for a legal purpose rather than for an illegal purpose.” 17 Am. & Eng. Ency. Law 17, 18. This text is well sustained by numerous decisions cited for its support. “ When a contract is open to two
Though the deed does not expressly say the grantee shall have the right or privilege to mine, dig and carry away coal from the adjacent land, the language obviously relates to coal and nothing else. Coal is the subject matter thereof, and the undermining contemplated could mean nothing other than the. removal of the coal, The intention to grant a coal right or interest is so plainly indicated by the terms used, that the contrary cannot be supposed. The only limitations placed upon this right of undermining the adjacent land, by removing the coal therefrom, relate to the direction in which the mining shall be done and injury to the laúd. The limitation, concerning direction, is unimportant on the inquiry as to the nature of the right granted. That respecting injury to the tract of land cannot be taken in its literal sense, for the removal of any coal therefrom, even one ton, would work an injury to the land, viewed in the larger sense of the term, embracing everything from the surface to the center of the earth. Hence, land, as used in this clause, has a restricted meaning. As removal of coal from the tract, if done, to such extent and in such manner as not to injure or destroy the surface, was contemplated by the parties, the right to injure the land to that extent is one of the things expressly granted; and the limitation must therefore be confined to injury to the surface of the land and minerals, interests and elements thereof other than coal. Subject to this limitation, the right granted is full, complete and unconditional, and there is no reservation or stipulation in the deed, importing any intention contrary to the hypothesis of an absolute grant of the right to mine and take away all of
A clause in the will of David Roberts, devising to his daughter Olevia A. Stockett the residue of the 400 acre tract, as his hill farm, supposed to contain about 200 acres, for life, and directing it to be sold after her death, and further providing as follows: “ and when sold one half of the coal under the land to be reserved to pay Elisha Lindsey for a claim he holds against the coal under the land for about that amount which must be attended to before the land is sold. The above order is cancelled by giving her the four one acre lots bought of A. D. Baker and the house,” is relied upon by both parties as reflecting light on the intention of the grantor. The last clause of the above quotation is rendered intelligible by an explanation made by the bill, showing that, between the word “sold” and the words “and this,” the following provision was originally written and then canceled by drawing a pen through it: “And also I order that James and Jonathan each of them to give Olevia $600.00 apiece and her mother give her $500.-00 to build her a house.” It is also claimed that by an agreement between David Roberts and one Isaac Hoge, made on the 9th day of June, 1866, in contemplation of a sale of the 200 acre residue, the former., recognized the Purdy claim of title to the coal, by the insertion therein of the following clause: “And the party of the second part further agrees to release the party of the first part of the contract made between S. B. Purdy & said Roberts of mining for coal in Robert’s land now owned-by Elisha Lindsey for which Hoge agrees to release said Roberts. * * * Should no sale be made by the first-day of April, 1867, then this agreement is to be void.” Presumably no sale was made, as contemplated, and this agreement became, by its terms, ineffective and void, but remains as a circumstance, supposedly tending to sustain the
The clauses of the will and agreement, relied upon, seem to operate both for and against the plaintiff, and not to be decisive of anything. They indicate knowledge on the part of Roberts of the assertion of a claim of right under the Purdy deed, and recognition thereof by him, and the will seems to partially define that right as being, in his opinion, something other than title to the coal, but neither Purdy nor any one claiming under him was a party to the will. The agreement of June 9, 1866, defines it as a contract “of mining coal in Robert’s land” but not otherwise. What connection Hoge had with it does not appear, but the agreement indicates that he proposed to sell the land as agent on a commission, and, hence, the interpretation put upon the Purdy deed by him, in his agreement with Roberts, does not in any way bind Purdy or Lindsey, or indicate what estate or right they thought they held under it. We do not see in these papers anything bearing materially on the interpretation of the clause in question, or tending to raise an estoppel on the part of the defendants by conduct of their predecessor in title.
Indefiniteness of the language of the clause, concerning the area or portion of the adjacent land, covered by the grant of the coal, has occasioned much argument and contention. The land in question lies more nearly west than south of the 13 acre tract. The northern end of it lies almost directly west, while the central and southern portions lie southwest. ' The southeastern corner would be slightly cut by a line running on bearing S. 60° W. from the northwest corner of the 13 acre tract. The northern line of said tract extended would cut off a portion of the northern part. To limit the conveyance to land directly south of the 13 acre tract, would give the coal in only a very small portion of the original tract,- and none of that part now claimed by the defendant, the Round Bottom Coal and Coke Company. The clause under consideration gives the right to undermine “southward beyond the lines of said tract.” The use of the word “lines” instead of “line,” in connection with the general and indefinite term “ south
As the defense of non-user rests upon the view that the right granted was a mere easement, the construction we have given the clause under consideration, eliminates it. Such defense cannot be set up against title to corporeal property. Nor does the statute of limitations apply. Possession of the land by the grantor of the coal is not deemed in law adverse possession of the coal, no mine having been opened by him, nor any other act done indicating actual possession of the coal as a separate entity. Wallace v. Elm Grove Coal Co., 58 W. Va. 449.
What is here said is predicated on the allegations of the bill. The answer and evidence adduced hereafter, if any, may wholly alter the case.
Reversed,. Remanded.