157 S.E. 82 | W. Va. | 1931
Plaintiffs complain of an adverse judgment in ejectment.
In 1902, George W. Stockley and Oliva D. Stockley, his wife, executed a power of attorney to George W. McClintic authorizing him to sell and convey for them a tract of 4,000 acres of land in Roane and Clay Counties, excepting, however, from said power of attorney all minerals in and underlying said land, together with specified mining rights. Later the same year, Judge McClintic, acting under said power, sold and conveyed a parcel of 102 acres of the Stockley lands to one L. S. Boggs. Minerals and mining rights were excepted. Through mesne conveyances the plaintiffs have come into possession and ownership of 64 acres of said parcel of 102 acres, excepting minerals and mining rights. In 1907 Oliva D. Stockley, sole devisee of Geo. W. Stockley, deceased, acting through her attorney in fact, W. D. Stockley, executed a lease on the said 4,000 acre tract of land to the Hope Natural Gas Company for oil and gas purposes. Defendant, as assignee of the oil rights under said lease, entered upon the Stockley lands and drilled a large number of oil wells, but at the time of the institution of this suit had not drilled any wells upon the tract of 64 acres involved herein. Incident to the oil development of the said large acreage, the defendant found it convenient and expedient to place some tanks upon the 64 acre tract, into which tanks oil is carried by gravitation through "gathering lines" from certain of the oil wells on the Stockley lands other than the 64 acre tract. The presence of said tanks and the lines extending thereto *109 from other parcels of the Stockley lands is the cause of plaintiffs' complaint. Plaintiffs concede the right of the defendant to build tanks and structures and lay pipe lines upon the 64 acre tract for the purpose of taking care of oil produced thereon, but they contend that the defendant has no right to place oil tanks and pipe lines upon their lands for the purpose of taking care of oil produced from other portions of the Stockley lands.
In the said power of attorney of George W. Stockley and wife to Judge McClintic there is expressly excepted and not granted to the said attorney the power to sell any minerals "and reasonable rights of ingress and egress and use of sufficient surface of said land to drill or mine for and take away for use said gas, oil, coal or other minerals thereon or under." In the said deed from Judge McClintic to L. S. Boggs there is expressly reserved all minerals in and under said land "and use of sufficient surface of said land to drill or mine for and take away for use said gas, oil, coal or other minerals thereon or under according to the terms of said power of attorney, it being the intention of this conveyance to grant only such part of said lands as said power of attorney gives to said attorney in fact the right to grant and convey."
It is thus seen not only that the Stockleys in making the power of attorney to Judge McClintic excepted all of the minerals underlying the 4,000 acres of land with full rights to produce and carry away the same, but that Judge McClintic in conveying a part of said acreage to Boggs excepted the minerals and fully and explicitly safeguarded the rights of producing and carrying away the minerals just the same as those rights had been safeguarded by the Stockleys in the power of attorney. The minerals and the development rights remained intact as a whole in the Stockleys. Boggs and his successors in title acquired interests in the land subject to the exceptions and reservations explicitly set forth in the power of attorney and conserved with equal clarity in the deed of McClintic, attorney-in-fact, to Boggs. The situation stands upon express contractual basis, made so by the parties, and is bulwarked by the general provision of law that "the owner of the mineral underlying land possesses as incident to *110
this ownership the right to use the surface in such manner and with such means as would be fairly necessary for the enjoyment of the mineral estate." Squires v. Lafferty,
When the plaintiffs concluded the introduction of their evidence, the court sustained a motion of the defendant to direct a verdict for the defendant, and, upon the rendition of such directed verdict by the jury, the court entered judgment that the plaintiffs "take nothing by their declaration filed herein, or by their suit, and that their suit be and it is hereby dismissed, and that the defendant, South Penn Oil Company, a corporation, do go thereof without day," and that the defendant recover costs. What is the effect of this judgment? In the absence of disclaimer by the defendant, do not the verdict and judgment upon a general issue plea to a declaration wherein the plaintiffs assert and claim fee simple title, necessarily operate as an adjudication that the plaintiffs have no title to nor rights in the land, at least in so far as concerns the defendant and its successors? In ejectment "a general verdict and judgment thereon is thereafter conclusive between the parties and their privies in estate."Wilson v. McCoy,
At the conclusion of the introduction of evidence on behalf of the plaintiffs, instead of sustaining defendant's motion for a directed verdict, the court, on its own motion, should have dismissed the plaintiffs' action without prejudice, and have relieved the jury from rendering a verdict. The court might very properly have advised a non-suit, but it would have been a matter of election on the part of the plaintiffs as to whether they would suffer a non-suit or not. It is a settled rule in this jurisdiction and some other jurisdictions, though not universal, that the court may not enforce an involuntary non-suit. Ross v. Gill, 1 Wn. (Va.) 87; Thweat v. Finch, 1 Wn. (Va.) 217; Gunn v. Railroad Co.,
A dismissal without prejudice would have placed the parties in the same situation they were in before the suit was instituted. That is all that either of them has any legal right to require.
We therefore reverse the judgment, set aside the verdict and remand the case with costs in this Court to the plaintiffs and in the trial court to the defendant.
Reversed and remanded. *113