88 W. Va. 259 | W. Va. | 1921
The circuit court has certified to us the correctness of its ruling upon .the defendants’ demurrer to plaintiffs’ bill.
The main object of the bill was to set aside and have removed as clouds upon plaintiffs’ title to the coal under a tract of land known as the “Potts Tract’’, situated in Marshall County, two deeds dated April 14, 1919, of record in said county, in Deed Book Number 155, at pages 51 and 53 respectively; the first executed by defendant Kate Higgins,
The said bill also seeks to have cancelled and removed as clouds on plaintiffs’ title to the coal under the “Potts Farm” so much of two other deeds executed by the widow and heirs of said John Higgins since his death, the first a deed to J. M. Williamson in fee for the surface of 72.82 acres, recorded in said county in Deed Book No. 137 at page 280, the second to A. H. Ferris in fee for 169.22 acres of surface, which included the surface of the 13 acres and 87 poles, recorded in
The bill further alleges that the several deeds and proceedings which it seeks to have removed as clouds on plaintiffs’ title to the coal under the Potts Farm were made and executed since the decision here of the case of John Higgins v. The Round Bottom Coal & Coke Company, reported in 63 W. Va. at page 218, giving construction to the deed of David Roberts to Simeon B. Purdy, dated January 7, 1843, for the 13 acres and 87 poles, part of said 400 acre tract, as shown in the opinion in that ease, the particular provision in which, now relied on by defendants, thereby construed, is as follows: “Also the privilege, should the said Purdy, his heirs or assigns, open a coal mine on said tract of land, of undermining southward beyond the lines of said tract of land so far as not to injure the tract of land of which this was a part and now taken from.”
In the former case, as in this, the questions presented were
The question now certified is whether in view of our holding in the former case the present bill presents any basis for equity jurisdiction or for the relief prayed for. Construed in the light of the provisions of the deed there involved and the facts alleged in relation thereto, and particularly with reference to the map exhibited with the present bill purporting to show the location of the 13 acres and 87 poles with reference to the lines by -which the coal in question was to be determined, wo decided that the privilege or grant of coal beyond the lines of the tract specifically included the title to the coal in the residue of the larger tract of which the 13 acres and 87 poles was a part lying southwest as well as south of the granted parcel and withheld the right to make openings in said residue for mining purposes, by prescribing the mode of removal of the coal to be by means of an opening to be made in the parcel granted. That decision, as now interpreted by defendants, if they may rely thereon, would cover most if not all of the coal under the Potts Farm claimed by them. But the bill here exhibits a map or survey of the land granted, and of the lots into which the original 400 acres was divided, and with reference to which it is al
For fhe purposes of the demurrer all matters well pleaded must be taken to be true. The first point of demurrer is that the fact of actual possession by plaintiffs is not sufficiently alleged, wherefore the right to relief by removal of cloud is not shown by the bill. The bill here does allege that plaintiffs were in possession of the coal. In Sansom v. Blankenship, 53 W. Va. 411, following Moore v. McNutt, 41 W. Va. 695, we held that the allegation that plaintiffs were in possession, prima facie meant actual possession. So that on demurrer we must accept the allegation of the bill as to possession as the equivalent of an allegation of actual possession, and our opinion is that this point of demurrer was properly overruled by the circuit court. It is argued in this connection also that plaintiffs do not show clear title to the coal. But if the facts be as alleged, and as they must be regarded on demurrer, plaintiffs do have clear title to at least a greater part of the coal under the Potts Farm, not from Higgins or the Higgins heirs it is true, but by deed from J. B. Potts and wife, of April 1, 1903; and the only adverse title or claim of defendants, so far as the bill shows, was derived by the deed of the Higgins heirs, made subsequently
Plaintiffs’ counsel in argument have appealed to us to settle and adjudicate finally the rights of the parties on all issues presented by the bill and exhibits. This we can not do, of course. The demurrer was general and in no way limited to any particular issue. For instance, we are requested to decide whether or not the grant to plaintiff Wiley of the coal under the 13 acres and 87 poles and under the 228% acres divested the Higginses of all right and title to take coal from any of the land outside of or beyond the boundaries of those deeds and of all mining privileges to remove any coal through or over those tracts from adjoining lands. The defendants’ demurrer might have been both general and specific as to those questions, but It was general, and the general demurrer would not reach the specific questions sought to be presented. As we held in City of Wheeling v. Chesapeake & Potomac Telephone Co., 28 W. Va. 208, point 6 of the syllabus, “A general demurrer to a bill in equity setting up several grounds of relief challenges the sufficiency of the bill as a whole and does not call for adjudication as to the sufficiency of each one of the several parts.” If we might properly respond to the specific question thus sought to have decided, it would be inadvisable to do so, for the whole case may be changed on the answer and proofs at final hearing; and indeed on the question of possession the plaintiffs may not be able to establish by proof the fact of possession entitling them to relief in equity to remove a cloud, and the case may never reach a final decision on the rights of the parties.
Wherefore we are of opinion to affirm the ruling below on the demurrer, and to so certify our decision to the circuit court.
Affirmed.