Chapman v. Mill Creek Coal & Coke Co.

MilleR, Judge: By grant bearing date on the 1st day of July, 1851, there was granted by the Commonwealth of Virginia, to David Hall and Henly Chapman, a tract of land containing 1,750 acres, lying in the counties of Mercer and Tazewell, the greater part thereof being in Mercer. The boundaries are set out in the grant. On the 5th day of April, 1856, Hall and wife, and Chapman, by their deed, granted to David K. Perdue,, for the consideration of $307.75, that part of-said tract lying in the county of — 194 — Mercer containing about 925 acres, described in the deed by metes and bounds. The deed contains the following exception or reservation: “Excepting always that the parties of the first part hereby expressly reserve to themselves, their heirs and assigns forever the use and occupancy of any one of the coal banks on said land that they may at any time hereafter or that either of them or their heirs or assigns may jointly or severally select together with right of way for ingress and egress to and from same, and the said parties of the first part for themselves, their heirs, etc., hereby alien and convey to the saicli party of the second part, all the right, title and interest which they acquired in and to the said parcel of 925 acres of land by virtue of their grant as aforesaid; and they will warrant and defend the title to the same, with the reservation as aforesaid, against all persons claiming by, through or under them, and from none else.” At the October Rules, 1893, A. A. Chapman, Charles T. Painter, S. W. Nowlin, and sixty-five others, filed their declaration in ejectment in the clerk’s office of the circuit court of Mercer County against the defendant, Mill Creek Coal and Coke Company, a corporation, alleging therein, that, “on the 1st day of May, 1893, the said plaintiffs were possessed in fee of a certain coal bank or coal seam, known as vein or seam number 3, in a certain parcel or tract of land, lying and being mainly in the said county of Mercer and State of West Virginia, containing nine hundred and twenty-five acres being the same land conveyed by Henly Chapman and David ITall to David N. Perdue by deed dated April 5, in the year 1856.” The metes and bounds as in said deed were then set out. Afterwards, on the 24th day of February, 1894, by order of the Court, E. W. Clark, IT. M. Bell, and Joseph I. Doran, trustees of the Flat Top Coal Land Association, lanlords of the defendant, were made defendants with the said Mill Creek Coal and Coke Company. After sundry orders had been made from time to time in the action, the defendants, at the May. term, 1902, entered their plea of not guilty, and issue being joined, a jury was selected and sworn to try the same. At the close of plaintiff’s evidence in chief, it was all stricken out by the court on motion of defendants. The plaintiffs then declining to take a non-suit, the jury being instructed by the court so to do, found a verdict for — 195 — the defendants, to which the plaintiffs excepted and moved the court to set it aside and to grant them a new trial. This motion being also refused by the court, the plaintiffs • again excepted, and the court then rendered judgment against them on the verdict. All of the evidence introduced on the trial is certified in a bill of exceptions and is a part of the record. To the judgment aforesaid, plaintiffs obtained a writ of error and supersedeas, and say, for assignment of error, that the verdict aforesaid is contrary to the law and the evidence; that it was error to exclude plaintiffs’ evidence from the jury and direct the jury to find for defendants; and that the refusal of the court to set aside the verdict and grant plaintiff a new trial,' was also error. Plaintiffs are the descendants and heirs at law of grantors Hall and Chapman, and claim the said coal bank or coal seam by virtue of the reservation in the deed as aforesaid. The defendants claim under said deed, and contend that the reservation therein was and is void for uncertainty, and because it infringes the rule against perpetuities; that the right of selecting a “coal bank,” reserved to the grantors in the deed to Per-due, could be exercised by the grantors only, and did not survive them; that the right reserved to select a “coal bank” does not give the right to select a coal vein; that the right reserved as aforesaid is not sufficient to siipport an action of ejectment; and that, if the said reservation is a vested interest in the land, it has been forfeited to the State, for non-entry and non-payment of taxes thereon, according to law. For the purposes of its consideration, it is immaterial whether that part of the deed of Hall and Chapman to Perdue, upon which plaintiffs predicate their action, is called an exception or reservation. Technically, they are different in moaning, but have often been used as synonymous. “Though apt words of reservation be used they will be construed as an exception, if such was the design of the parties.” Kister v. Reeser, 98 Pa. 1. Tn order to determine the questions raised, it is necessary, first, to ascertain the meaning of the words employed by the parties to the deed. In doing so, we must take the language used, most strongly against the grantors. Hammon on Contracts states the following rules for the construction of deeds and othey — 196 — written instruments: “Ambiguous .words are to be taken most strongly against tire person using them. Section 413, and cases cited. * * * This rule is applied to exceptions and provisos in deeds. They are taken most favorably to the grantee. Id. note 132. * * * ' Conditions, exceptions, reservations, and provisos are to be strictly construed against the person in whose favor they are introduced; nor will the law permit a thing which is expressly granted, covenanted, or promised to be defeated by the subsequent restrictions. Section 411. * * * * Contemporaneous construction of a contract is that drawn, from the time when, and the circumstances under which, the contract originated. It is of great weight in determining the intent of the parties. * * * And the state -of the country and of the manners of society at the time the contract was made is also to be regarded in giving it a construction.” Section 398. These principles are supported by Hurst v. Hurst, 7 W. Va. 299; Gibney v. Fitzsimmons, 45 W. Va. 342. The foregoing rules will now be applied to the deed in question. The word “bank” is defined in standard dictionaries as “the face of a coal vein in process of being mined;” “the surface immediately about the mouth of a mine;” also “to form, or lie in banks.” In geology a thin layer or stratum or rock is called-a seam. The same term is applied to coal. Vein of coal, coal bed, and coal scam are used as equivalent terms. In 1856, when the deed to Perdue was executed, that section of country, in which the land in question lies, was almost an uninhabited wilderness. So far as this record discloses, there was but one family living near the land. There were no roads to it. As a witness describes it, “there was nothing but cow paths. There was at that time an opening in the land, from which coal was taken for blacksmithing purposes.” Another witness says, “they just cut it out, (the coal) with a mattock or something like that. There was no place in under the ground at all, at tire time, and I don’t suppose that there was anybody in the county that would have gone under the ground ten feet then. They carried the coal away on their shoulders through bushes and brush. There was no use made of coal in that part of the county then except by blacksmiths.” He further states that he never knew anybody at that time to go there, (to the place of getting coal,) with a horse or wagon; that the coal could not — 197 — ¡have been taken in that way; that there was a path which crossed the ridge between a quarter and a half mile from the coal opening; that it wasn’t much more than a path, because there was at that time very few people there to use it (the path); and it was used only for going to mill and such things.” It is fair to presume that coal in that section at that time had no commercial value; and that no person then knew the land was underlaid with the deposits of coal which have since been discovered. Certainly the parties to the deed did not expect the mining devolpments and great increase in the value of coal and coal lands in that section of the State, which have taken place since that time. It appears that six veins of coal underlie the land in controversy. Since the coal developments in that region, those veins have been numbered, and are known as “Coal veins” Nos. 1, 2, 3, 4, 5, and 6, respectively, the lowest one being No. 1, the highest No. 6. No. 2 is about forty feet below No. 3, and is thirty to thirty-six inches in thickness. No. 1 is fifty to sixty feet below No. 2. No. 6 is from one hundred and fifty to one hundred and seventy-five feet above No. 3, and is between three and four feet in thickness. The thickness of vein No. 3, the one in controversy, is from seven and one half, to eight feet. Of the tract of 1,750 acres, Hall and Chapman conveyed 925, and retained 825, acres. They also expressly reserved to themselves, their heirs and assigns forever, the use^and occupancy of any of the coal banks on said land (conveyed) which they might at any time thereafter, or that either of them, or their heirs or assigns, might jointly, or severally, select, together with the right of way for ingress and egress to and from the bank so selected. The exception for the use and occupancy of the coal bank and for the right of way, are in one sentence. “By the term, Tight of way,’ is generally meant a private way which is an incorporeal hereditament of that class of easements in which a particular person or particular description of persons, have an interest and a right, though another person is the owner of the fee of the land, in which it is claimed.” Angelí on Highways, 3 Ed. section 1. According to this author, the exception as to the “right of way,” reserves an incorporeal 'hereditament only and not the title to any — 198 — portion of the land. Again, this clause reserves “the right of way for ingress and egress to and from” the coal bank which might be so selected. This language certainly does not confer upon the grantors, or those who claim under them, the right to pass over the tract of land, to the several openings of the various mines which might be necessary for the purpose of mining coal vein No. 3. It is shown that it would be impracticable to mine all of the coal in that vein from one opening. Does this clause in the deed retain in the grantors the title to any coal, a!nd, if so, to how much? If it reserves to the grantors the title to any one of the coal veins, or coal beds on the land, it reserves the title to all. The selection was to be made in the future, and, on this theory, when the selection was made, if ever, the title to the coal veins not selected, remained in the grantors, their heirs or assigns, because “no estate of inheritance or freehold, or for a term of more than five years, shall be conveyed unless by deed or will.” Code, chapter 71, section 1; Code of Va. 1860, chapter 116, section 1. If under the deed, the title to the coal passed to Perdue, he or his assigns for the same reason, held the title after the selection was made by the heirs of Hall and Chapman. In United States v. Grundy, 3 Cranch, 337, 352, the court says: “It seems to be the very nature of a right to elect one of two things, that actual ownership is not acquired in either until it be elected, and if the penalty of an offense be not the positive forfeiture of ,a particular thing, but one of two things, at the choice of the person claiming the forfeiture, it would seem to be altering materially the situation in which that person is placed to say that either is vested in him before he.makes that choice. If both are vested in him, it is not an election, which to take, but which to reject. It is not a forfeiture of one, of two things, but a forfeiture of two things, of which one only can be retained.” In Sir Rowland Heyward’s Case, 2 Coke, 35a, it is held that: “If I have three horses, and I give you one of my horses; in this case, the election ought to be made in the lifetime of the parties, for inasmuch as one of the (horses is given in certainty, the certainty and thereby the property begins, by election." If we hold that the title to the coal beds or any of them remained in Hall and Chapman, their heirs or assigns, until the — 199 — reserved right of election, was exercised, it follows that the deed to Perdue, was and is, in effect, nugatory, as to the coal underlying the land, because grantee could not lawfully sell or use it, until the reserved interest was definitely ascertained, which might not be done within a hundred years or more. “A deed should be considered as intended to have some effect, and a construction making it operative will be preferred to one rendering it void. Some effect will, if possible, be given to the instrument, for it will not be intended that the parties meant it to be a nullity.” Devlin on Deeds, Yol. 2. section 850. ■ If grantors reserved the title to the coal, or any part thereof, neither Perdue nor his assigns could maintain an action against a person for the digging or removal thereof from any of the veins, until after a selection as aforesaid. The lien of a judgment against Perdue, or his heirs or assigns, would not have attached to any of the coal. “The lien of a judgment attaches to the precise interest or estate which the judgment debtor has, actually and effectively, in the land.” Black on Judg. section 420; Marshall's exr. v. Hall, 42 W. Va. 641; Cleavenger v. Felton, 46 W. Va. 249. Henly Chapman one of the grantees, died in April, 1864, and David Hall, the other, died in Indiana in 1867. Their heirs and claimants under them, at the time of the trial of the action, resided in Arkansas, Idaho, Kansas, Missouri, West Virginia, and other sections of the country. The Hall heirs were represented by their agent and attorney in fact, D. H. Torbett, a grandson of David Hall. The grantors in the deed, before their deaths, and their heirs, at different times, had removed from the section of country in which the land is situated, seemingly leaving no interests behind them. Thirty-seven years had elapsed after the execution of the deed before their action of ejectment was commenced. The marvelous developments of the last twenty-five years in Mercer and adjoining counties had made the coal underlying that tract of land immensely valuable. Vein No. 3 the most valuable of the six had been opened, and in 1893, was being mined by persons holding under the title conveyed to Perdue. Plaintiffs then, for the first time, sought to make their selection, under the reservation in the deed; selected No. 3 as the “Coal Bank” referred to in the deed; and commenced their aforesaid action for its recovery. These are cir200 eumstances against the contention of plaintiffs that they have a vested right in the land, the coal in place being a part of the freehold. “Tell me,” said Lord Chancellor Sugden, “what you have done under such deed, and I will tell you what the deed means.” Capertons Admr. v. Caperton's Heirs, 36 W. Va. 486, and authorities there cited. Plaintiffs’ action is brought on the assumption that Hall and Chapman reserved the title to this coal vein, and that the title thereto descended to them. If we adopt this construction of the reservation in the deed, we must say that instead of a reserved right of selection, the grantors, and their heirs, had and have the right of rejection of five of the six coal veins. But the language is, “excepting always that the parties of the first part hereby expressly reserve to themselves their heirs and assigns forever, the use and occupancy of any one of the coal banks on said land that they may at any time hereafter * * * select,” etc. This language imports a future selection and does not indicate an intention of the grantors to hold the effect and operation of the deed in abeyance. To select is to make choice of that which is most desirable or suitable.' Selection does not carry with it the idea of ownership until the selection be made. The customer- selects the article desired from the stock of the merchant. The settler selects and takes up a parcel of land from the public domain, under the provisions of the Land Act. Plaintiffs cite numerous authorities to support their contention, among which is Mapel v. John, 42 W. Va. 30. In the opinion at page 37, Judge Holt says: “This brings ús to the evidence. Joshua M. Ross sold and conveyed to Jesse Everly, by deed dated 16th February, 1860, the land now owned by plaintiff, Mapel. In it he makes-this reservation: “The said Ross excepts the privilege" of coal for his part of the farm at the bank now in use.’ What Ross did not then sell, which he calls f his part of the farm,’ is the land now owned by defendant, John.' As to the nature and extent of defendants right to mine coal on' plaintiff’s land, it is enough for our present purpose to say that the privilege to mine coal at the bank then in use was an easement annexed to defendant’s land, the dominant tenement, to mine coal at that open mine on plaintiff’s land, the servient tenement, which was only a privilege to take coal at a particular place for a particular purposeetc. We do not think201 tbat this ease adds any strength to the contention of the plaintiffs. „ ! Testing the language of the reservation in the deed, by the rules above laid down, and giving due consideration to the time when, and the circumstances under which the deed was executed, our conclusion is that Hall and Chapman did not, in and by said deed, reserve to themselves, their heirs or assigns, the title to the coal, Or any part thereof, underlying the said nine hundred and twentj'-five acre tract of land. We are further of opinion that the exception in the deed, if good for any purpose, reserved only the right to take coal for the purposes for which it was then used in that section from any of the coal veins on the said conveyed tract of land, to be selected by the persons mentioned in the deed; and that the terms, use and occupancy of any one of the coal banks on said land, must be restricted to the purpose of digging and removal of coal for the purposes aforesaid. It follows, therefore, that the said action of ejectment cannot be successfully maintained. In Witten v. St. Clair, 27 W. Va. 770, 771, the Court, by Judge SnydeR, says: "Accordingly in order to enable the plaintiff to sustain this action it is essential that he be clothed with the legal title and the right of possession at the time the action is instituted. The plaintiff must always in the first instance make out a legal and posses-sory title to the premises in controversy, and the defendant’s evidence may be confined to the falsifying his adversary’s proofs, or rebutting the presumptions which may arise from them.” See also Suttle v. Railroad Co., 76 Va. 284; 18 L. R. A. 781; Am. & Eng. Enc. Law, 2 Ed. Vol. 10, 482; Waits’ Actions and Defenses, Vol 3, p. 10. A plaintiff in ejectment must at the time of instituting his action, and at the time of its trial, have a legal title to the land he sues for. Am. Dig. Cent. Ed, Vol 17, 1960. In Pennsylvania, where great latitude obtains, there being no courts of chancery, it has been held that ejectment is almost the only action for trying title to land. “But the action will not lie for a mere privilege, or incorporeal hereditament. The general rule is recognized in Pennsylvania, as elsewhere, that ejectment will only lie for things whereof possession may be delivered by the sheriff. The case of common appendant or ap — 202 — purtenant is said to be in some degree an exception; but then the officer, by giving possession of the land, gives possession of the common.” Tyler on Eject & Ad. Enjoy. 59. On page 37, the same author says: “By the common law, and the general rule, an ejectment will not lie for anything wherever an entry cannot be made, or of which the sheriff cannot deliver possession. It would follow, therefore, by this rule, that ejectment is only maintainable for corporeal hereditaments.” “Ejectment will not lie for an incorporeal hereditament.” Am. Dig. Cent. Ed. Vol. 17, 1954. The exception in the deed, being a privilege only, as the right to take water from a spring, or of watering stock at a stream on the lands of another, is an incorporeal hereditament, for which the action of ejectment will not lie. A decision of tire other questions presented is therefore unnecessary. For the foregoing reasons, there is no error in the judgment complained of. It must be affirmed. Affirmed.