| W. Va. | May 5, 1914
Lead Opinion
The deed of April 9, 1902, from plaintiff to Burlew, trustee, under which defendants claim title to the 2,080 acres of land conveyed, and also to the oil and gas involved in this suit, contains this provision, and upon which this controversy depends:
“Also Excepting and Reserving from this conveyance and the warranty herein, all of the estate, right title and interest in and to the premises above described which were conveyed by said Louisa D. Cracraft, deceased, to James Townsend Russell by and instrument in writing bearing date January 28, 1901, and also excepting and reserving all the rents, royalties and compensation reserved by and agreed to be paid to said Louisa D. Cracraft by said James Townsend Russell in and by said written Agreement.”
Alleging abandonment by Russell, lessee, after bringing in a gas well under said lease producing 250,000 cubic feet per day, and decree in her favor of December 1, 1908, in a suit brought by her in the circuit court to remove said lease as a cloud upon her title, and conceiving herself to be owner by virtue of said exception and reservation in her deed to Bur-lew, trustee, of all the oil and gas interest in said land, plaintiff filed her bill against defendants to also remove as clouds upon her title to said oil and gas a certain lease made by the Blue Creek Coal and Land Company, claiming under Burlew, trustee, to defendant, the Hope Natural Gas Company, purporting to cover said 2,080 acres, to enjoin operations for oil and gas under that lease, to quiet her title to said oil and gas, and for general relief.
The Blue Creek Coal and Land Company demurred to the bill and stood upon its demurrer not desiring to answer; the
The Blue Creek Coal and Land Company alone has appealed. As the Hope Natural Gas Company is protected by a lease from both claimants, subject to the decision of this case, its interests are not otherwise involved.
Both sides to the controversy agree that there is but one question presented, namely, what estate or interest in the oil and gas was reserved by Mrs. Updegraff in her deed to Bur-lew, trustee? The case has been twice argued orally by able counsel,- first when it was originally submitted for decision, and again on the rehearing ordered, and has also been fully covered by briefs and supplemental briefs on both sides deserving particular mention because of the care and legal ability displayed by counsel in their preparation.
The position of appellant’s counsel is, that the legal effect of said exception and reservation is the same or substantially the same as if in place of the terms actually employed Mrs. Updegraff had conveyed the land subject only to the lease to James Townsend Russell, and to the rents and royalties reserved therein which might accrue to her under that particular lease. On the other hand, she and her counsel contend that the effect thereof was as decreed by the court below
The deed from Burlew,- trustee, to the Eastern Coal and •Coke Company, his immediate successor in title, and the deed from the latter company to the Blue Creek Coal and Land Company, contain exactly the same exception and reservation as the deed to Burlew, trustee, so that we must determine the rights of the parties from the language employed in this exception and reservation, in the light of the facts alleged and the nature of the subject matter dealt with in the deeds and contracts.
We think the decree below in favor of plaintiff was clearly right. True what was excepted and reserved in Mrs. Upde-graff’s deed to Burlew, trustee, and excepted from her warranty, was, first, “all of the estate, right title and interest in and to the premises above described which were conveyed by said Louisa D. Craeraft” by the instrument of January 28, 1901, and, second, “all the rents, royalties and compensation reserved by and agreed to be paid” by lessee to lessor “by said written Agreement”. What did the-parties mean by these provisions? As we interpret the argument of counsel for appellant their position is that these exceptions and reservations were mainly, if not exclusively, for the benefit of the lessee, James Townsend Russell,'and as to the first exception at least, that if the oil company had at any time by purchase or release from him gotten in “all of the estate, right title and interest” which were conveyed to him, it would have held' the premises acquit of them, and now that his estate, &c., has been terminated by the terms of the lease or the decree of the court the same have dropped into its lap under the deed to Burlew, trustee, and that all rents, &e., have also lapsed with the lease.
We cannot accede to these propositions. First, let us inquire what was “all of the estate, right title and interest” conveyed to Russell? By the terms of the deed or lease “the exclusive right * * * * for the purpose of drilling for petroleum, gas and water”, also “to lay, maintain and remove lines of pipe”, &c., “for and during the term of one year, from the date hereof, or as long as oil or gas shall be
Besides the oil and gas rentals reserved in the deed of lease to Russell, it contained rights and reservations in favor of the lessor other than those already mentioned, and appurtenant to the estate and interest excepted and reserved by Mrs. Updegraff in her deed, manifesting to some extent at least the intent of the parties, namely, the right of the lessor to twelve and one half cents per acre, annual rental provided in the lease, the rental of one hundred dollars a year for each gas well, the right or option to sell the royalty in the event oil should be found, and other rights incident to such a lease.
We are not unmindful of the technical distinction between an exception and a reservation in a deed. The draftsman in' the deed from plaintiff to Burlew, trustee, used both terms conjunctively, both in respect to the estate, right, title and interest conveyed to Russell, and also in respect to the rents, royalties and compensation reserved in the deed of lease. It is argued by counsel that these terms were advisedly used by the draftsman because of the nature of the estate con
In our opinion the provisions in the deed involved here present a stronger case for the construction we have given it than was presented in Toothman v. Courtney. As the parties to that deed must have contemplated operations by Russell under his lease and the taking of the oil and gas according to its terms and provisions, and could not have been speculating on the chances of his doing so, no consideration could have been paid by Burlew, trustee, for any estate or interest in the oil and gas excepted, and it seems clear to us that justice and equity, as well as a proper construction of Mrs. Updegraff’s deed requires affirmance of the decree appealed from.
Affirmed.
Dissenting Opinion
(dissenting):
In my opinion the rules of interpretation and construction, applicable to deeds, do not sustain the conclusion expressed in the decision of this case, and, for that reason, I am unable to concur in it.
If the clause upon which the plaintiff relies was ambiguous and there remained a doubt as to its meaning after the application of the ordinary rules of interpretation, that doubt would have to be resolved against her, she being the grantor. Williams v. South Penn Oil Co., 52 W. Va., 181" court="W. Va." date_filed="1902-12-06" href="https://app.midpage.ai/document/williams-v-south-penn-oil-co-8175197?utm_source=webapp" opinion_id="8175197">52 W. Va., 181; Turk v.
But the clause in question is not in any sense ambiguous, and the effect accorded to it by the decision necessitates the reading thereof as if it contained words that are not found in it. The specific terms used, excepting the existing lease and reserving to the grantor the particular rentals, royalties and compensation provided for by it and nothing more, are by construction so broadened and extended as to make them reserve the oil and gas in place. There is not a word in it, applicable to the subject of oil and gas in place. Every word in it applies to the lease and goes not a whit beyond it. The first of its two parts excepts and reserves ‘ ‘ all the estate, right, title and interest in and to the premises above described which were conveyed by the said Louisa D. Cracraft, deceased, to James Townsend Russell by andI instrument in writing bearing date January, 28th 1901.” That instrument did not convey the oil and gas in place. It was nothing more than an oil and gas lease. Nobody seriously claims or pretends that it was, or that it passed title to the oil and gas in place. Nor could any such claim stand in the face of the authorities. Toothman v. Courtney, 62 W. Va. 167" court="W. Va." date_filed="1907-04-12" href="https://app.midpage.ai/document/toothman-v-courtney-8176070?utm_source=webapp" opinion_id="8176070">62 W. Va., 167; Harvey Coal Co. v. Dillon, 59 W. Va., 605" court="W. Va." date_filed="1905-06-16" href="https://app.midpage.ai/document/harvey-coal--coke-co-v-dillon-8175850?utm_source=webapp" opinion_id="8175850">59 W. Va., 605; State v. South Penn Oil Co., 42 W. Va., 80" court="W. Va." date_filed="1896-04-04" href="https://app.midpage.ai/document/state-v-south-penn-oil-co-6595399?utm_source=webapp" opinion_id="6595399">42 W. Va., 80.
No such doctrine is asserted in Wilson v. Youst, 43 W. Va. 826" court="W. Va." date_filed="1897-11-17" href="https://app.midpage.ai/document/wilson-v-youst-6595685?utm_source=webapp" opinion_id="6595685">43 W. Va., 826. That ease merely deals with rights in the product of mining operations under the lease, in view of its relation to the land before severance. It holds nothing more than that a widow is entitled to the use of one third of the royalties, because they represent something taken from the land of which she is dowable, in the exereise of the privilege conferred by the lease. Not a word in the opinion says the lessee obtains title to the oil and gas in place. His lease confers a right of severance. He has a mere working privilege and no title to the oil or gas, until he brings it to the surface.
Such a privilege forfeitable for non-compliance with onerous conditions is all that was “conveyed” to James Townsend Russell, and the clause relied upon excepts only the right, title and interest “which were conveyed” to him by that certain lease, (no other), “dated January 28th
The first part merely excepts the lease to the end that the grantor might not be liable on her warranty in consequence thereof,' for the deed would not have destroyed it, had no such exception been made. The second part had for its purpose the avoidance of the legal effect of the conveyance, upon such rents and royalties as might possibly arise or accrue by reason of the lease. "Without a reservation thereof, they would have passed to the grantee, under the legal rule that the owner of land, in the absence of a stipulation to' the contrary, is entitled to the rents, issues and profits thereof, arising under a lease thereon previously made. Here are two plain purposes for the clause, one for each part thereof and the terms used are so limited as to accomplish those purposes and nothing more.
Notwithstanding the use of the word, “reserving,” as well as the word, “excepting,” in the first part, it can mean nothing more than “excepting.” As this part contemplated only a thing antecedently created by the lease and already existent, it cannot be created by the deed. It existed independently of the deed. In other words, the thing “reserved” was in its nature the- subject matter of an exception as the term is defined in law, and if, in such cases, the word, “reserve,” is used instead of “except,” it has the same effect necessarily as if the proper word had been used. The thing done, not the form of expression used, governs and controls. A reservation creates a new right respecting the thing granted and withholds it to the grantor. That was an impossibility in this
To say she reserved that which had not been granted to Bussell or something more than she had granted to him, plainly conflicts with the terms of the clause, for it excepts and reserves only estate, right, title and interest “which were conveyed ***** hy an instrument in writing bearing date January 28th 1901,” the lease. It does not except all that estate, right, title and interest in respect of which she had granted something to him, the land, oil and gas. She never conveyed any of them to him. She conveyed only a lease of the land with a conditional working privilege in the minerals, and that is all the terms of the exception cover.
The conduct of the parties and the other extraneous evidence relied upon are wholly immaterial and inadmissible. A plain, clear, unambiguous contract must speak for itself and parol evidence is not admissible to vary or contradict its terms. No matter what the parties did or said contemporaneously or subsequently, such a contract must be permitted to operate and be enforced according to its legal effect deduced from the written or printed words. Uhl v. Ohio River R. Co., 51 W. Va., 106; Crislip v. Cain, 19 W. Va., 483; West Va. Trans. Co. v. Pipe Line Co., 22 W. Va., 614; Tucker v Cocke, 2 Band. 51. Such evidence is let in only to interpret ambiguous or doubtful contracts. Consideration of the antecedent contract with Dickinson, Trustee, is barred by the same general principle. If it had been between the grantor and Burlew, Trustee, and the deed made in pursuance thereof, it would be inadmissible and inefficacious to control the plain terms of the latter. It was merged in the deed and, in so far as its terms differ from the deed, they were annulled by it, and the deed became the last, final and controlling embodiment of the contract. Thereafter, the preliminary contract became functus officio. Newberger v. Wells et als., 51 W. Va., 624" court="W. Va." date_filed="1902-06-07" href="https://app.midpage.ai/document/newberger-v-wells-8175175?utm_source=webapp" opinion_id="8175175">51 W. Va., 624, 629; 28 Am. Eng. Ency. L. 132, 140. If the deed were uncertain as to its meaning, the antecedent contract
An erroneous view of counsel as to the right of the grantee in the deed, respecting the lease, if any, is a matter of no consequence. If the lease contained no covenant binding the lessee to drill or operate, and, in consequence thereof, the grantee, by the purchase of Russell’s leasehold, would have been in a position to avoid it or render it unfruitful by mere non-action, failure to oper'ate, that circumstance is entitled to no weight in the consideration of the clause in question. It cannot extend the terms of the lease. What right the lease created, be it small or great, is all that was excepted. If Russell had proceeded with his exploration and found oil or gas in large quantities, the grantor in the deed would have derived a very substantial benefit. As it turned out, she had a contingent right, a supposedly valuable one at the time, wherefore the argument reductio ad absurdum, clearly has no application. Had Russell developed and made the lease fruitful and refused to sell to the grantee, the latter could not in any way have destroyed the right reserved by the grantor as I interpret the exception.
Had there been a reservation in terms of all rentals and royalties, as in the lease construed in Toothman v. Courtney and some others, I would readily concur in the decision, but there is nothing of the kind. Only the rentals and royalties to accrue under a particular and specified lease were reserved. No case has been found, or can be, in my opinion, that goes as far as this decision.
For these reasons, Judge Williams and I dissent from the opinion and decision of the majority of the court.