PRESENT: Lemons, Goodwyn, Millette, Mims, and Powell, JJ.,
and Russell and Koontz, S.JJ.
SWORDS CREEK LAND PARTNERSHIP
OPINION BY
v. Record No. 131590 SENIOR JUSTICE CHARLES S. RUSSELL
September 12, 2014
DOLLIE BELCHER, ET AL.
FROM THE CIRCUIT COURT OF RUSSELL COUNTY
Michael L. Moore, Judge
This appeal requires us to revisit the questions arising
from the interpretation of a severance deed conveying ownership
of, and the right to remove, coal and timber. The dispute
before us is between the present owners of the surface of the
land and the successors-in-interest to the grantees of the coal
rights. The parties assert conflicting claims to royalties
generated by the extraction of coal bed methane gas (CBM) from
the coal seams underlying the property.
Facts and Proceedings
There are no material facts in dispute. In 1887,
Christopher Richardson and Amanda Richardson, his wife, owned a
891 3/4-acre tract of land in Russell County. On February 7,
1887, they executed a deed conveying to Joseph I. Doran and W.
A. Dick
all of the coal, in, upon or underlying a
certain tract of land and the timber and
privileges hereinafter specified as
appurtenant to said tract of land [metes and
bounds description follows] to enter on,
over, upon, and through said tract of land
for the purpose of digging, mining, or
otherwise securing the coal and other things
in and on said tract of land hereinbefore
specified, and removing the same from off
said land . . . .
And, as appurtenant to said tract of land,
and the rights hereinbefore granted, all the
timber except as hereinbefore excepted on
said tract of land that may be necessary to
use to successfully and conveniently mine
said coal and other things above mentioned
and granted; and the right to the said
[grantees and their assigns] to enter on,
over, upon, and through said tract of land
for the purpose of digging, mining, or
otherwise securing the coal and other things
in and on said tract of land hereinbefore
specified, and removing the same from off
said lands; the right to pass through, over,
and upon said tract of land by railway or
otherwise, to reach any other lands
belonging to the said [grantees] for the
purpose of digging for, mining, or otherwise
securing the coal and other things
hereinbefore specified, and removing same
from off such other land . . . .
This severance deed included a general warranty of title and
covenants of quiet possession and freedom from encumbrances.
The parties to this appeal are Dollie Belcher, Doris E. Dye
and Ruby Lawson, successors-in interest to the grantors named in
the 1887 severance deed (the Surface Owners) and Swords Creek
Land Partnership, successor-in-interest to the grantees named in
the deed (the Coal Owner).
In 1991, the Coal Owner entered into a lease with
Pocahontas Gas Partnership, granting to the lessee "all rights
[the lessor] has" to all the natural gas, including CBM,
2
underlying the Russell County tract described in the 1887
severance deed. The lease was for a term of 10 years and was to
continue thereafter as long as gas production or drilling and
other exploratory operations should continue. The lessee was to
pay the Coal Owner a royalty of 12.5% of the value of the gas
produced. The lease granted the lessee the exclusive right to
enter, drill, inject liquids into, explore and have access to
the coal seams under the land. CNX Gas Company, LLC. (CNX) is
the successor-in-interest to the original lessee. Neither CNX
nor its predecessor lessees acquired any rights from the Surface
Owners.
The Virginia Gas and Oil Act, Code §§ 45.1-361.1 et seq.
(the Act), first adopted in 1982, was amended in 1990 to permit
CBM production to go forward in cases in which there was
conflict or uncertainty as to the ownership of the CBM produced.
Code § 45.1-361.22 permits a CBM well operator, such as CNX in
the present case, to produce and sell CBM when any claimant
petitions the Virginia Gas and Oil Board (the Board), after
giving notice to all other claimants, to enter a "pooling
order." The claimants' interests are "pooled" by the Board's
order and an interest-bearing escrow account for the benefit of
all claimants is established. Id. The well operator is
required to pay into the escrow account a royalty of 1/8 of the
value of all CBM produced. Id. The funds remain in escrow
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until all claimants have either reached a voluntary settlement
of their claims, the interests of the claimants have been
finally determined by a court of competent jurisdiction, or a
final award of arbitration has taken effect pursuant to Code §
45.1-361.22:1. Id.
On the petition of CNX, the Board entered such a pooling
order on June 16, 1992, followed by several supplemental orders.
Since that date CNX has been producing CBM from the coal seams
underlying the land and paying the required royalties into the
Board's escrow account. At the time of the circuit court's
hearing, CNX was operating six gas wells on the property.
On April 25, 2011, the Surface Owners filed this action in
the circuit court against the Coal Owner, seeking a declaratory
judgment. The Surface Owners contended that they were the sole
owners of the CBM produced from their land and entitled to all
the royalties therefrom, including those held in escrow by the
Board and those yet to accrue. CNX was not made a party.
Because the parties agreed that no material facts were in
dispute, the court heard the case on the Surface Owners' motion
for summary judgment. On September 17, 2013, the court, by a
letter opinion, held that the 1887 severance deed was
unambiguous, that it conveyed to the Coal Owner only coal,
timber and access rights pertaining to those two commodities and
that CBM is a "distinct mineral estate" that was not conveyed by
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the severance deed. The court entered an order declaratory of
the Surface Owners' ownership of the CBM and right to receive
the royalties therefrom. We awarded the Coal Owner an appeal.
Analysis
The dispositive question in this appeal is whether the
granting clause in the 1887 severance deed embraced CBM as well
as coal. A decade ago, we considered a case involving the same
legal question and very similar facts. Harrison-Wyatt, LLC v.
Ratliff, 267 Va. 549, 593 S.E.2d 234 (2004), was a dispute
between surface owners and a coal owner over escrowed funds held
by the Board as royalties accruing from the production of CBM.
The decision depended upon the interpretation of a 19th century
severance deed that conveyed to the coal owner's predecessor
"all the coal in, upon, and underlying" the land. Id. at 551,
593 S.E.2d at 235. After considering the scientific evidence in
the record, the decisions of the highest courts of sister states
and the Supreme Court of the United States, Justice Stephenson
wrote, for a unanimous Court:
We do not believe the term "coal," as it was
used in the late 19th century, is ambiguous.
As commonly understood at the time, the term
"coal" meant a solid rock substance used as
fuel, and nothing in the record indicates
that CBM is a part of coal itself. On the
other hand, although CBM has a weak physical
attraction to coal and escapes from coal
when coal is mined, it is a gas that exists
freely in the coal seam and is a distinct
mineral estate. Moreover, the parties could
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not have contemplated at the time the
severance deeds were executed that CBM would
become a very valuable energy source. We
hold, therefore, that title to the CBM did
not pass to the Coal Owner. . . . 1
Id. at 556, 593 S.E.2d at 238 (citations omitted).
We adhere to that holding. The Coal Owner argues, however,
that Harrison-Wyatt is inapposite because that case involved the
production of CBM from "gob wells" where the gas had "migrated"
away from the coal and had collected elsewhere in the mine,
while the CBM in the present case remains within the coal seam
until the seam is fractured or otherwise disturbed. Because of
our view that CBM is not a constituent part of coal at any time
but rather is a separate mineral estate, we do not agree with
the Coal Owner.
We therefore turn to the four corners of the severance deed
to ascertain whether its granting clause can be construed to
convey any mineral estate beyond coal. The Coal Owner contends
that it is ambiguous, requiring resort to traditional rules of
construction. (Wh. Br. 15-20) In CNX Gas Company, LLC v.
Rasnake, 287 Va. 163, 166-67, 752 S.E.2d 865, 867 (2014), we
stated the following: "Where the language of a deed clearly and
1
In 2010, the General Assembly added Code § 45.1-361.21:1 to the
Act, which provides in part: "A conveyance, reservation, or
exception of coal shall not be deemed to include coalbed methane
gas." See 2010 Acts chs. 730, 762.
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unambiguously expresses the intention of the parties, no rules
of construction should be used to defeat that intention. Where,
however, the language is obscure and doubtful, it is frequently
helpful to consider the surrounding circumstances and probable
motives of the parties." In that case, decided earlier this
year, we found the granting clause under consideration to be
ambiguous, capable of reasonable interpretation in at least
three different ways. It required us to go outside the four
corners of the deed in order to ascertain the intent of the
parties. Id. at 167-69, 752 S.E.2d at 867-68. Examination of
the granting clause in the present case brings us to the
opposite conclusion and, accordingly, to the opposite result.
We agree with the circuit court's conclusion that the
granting clause is an unambiguous grant of coal, timber and
access rights to those two commodities. While not concise, its
frequent references to "other things" and "rights and
privileges" are invariably limited by such qualifying phrases as
"hereinafter specified," "hereinbefore specified," "hereinbefore
granted," and "above mentioned." Each of these qualifying
phrases refers the reader back to coal, timber, and access
rights pertaining to those commodities. In light of the 19th
century understanding of the meaning of the word "coal," there
is no ambiguity as to the intentions of the parties to the
severance deed.
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The Coal Owner finally contends that it has conferred a
benefit upon the Surface Owners by causing CBM to be produced
from their property, resulting in unjust enrichment to the
Surface Owners. The Coal Owner argues that the circuit court
erred in refusing to impose a constructive trust on the
royalties in its favor. We agree with the circuit court's
ruling that this contention lacks merit.
We hold that the CBM was at all times the property of the
Surface Owners, and the Coal Owner conferred no benefit upon the
Surface Owners. The Coal Owner further argues that it had the
"exclusive right of access" to the coal seam under the severance
deed and that the Surface Owners could never have obtained CBM
from it without the Coal Owner's consent. That argument
overlooks the fact that the Coal Owner's right of access to the
coal seam is limited by the severance deed to access for the
sole purposes expressed in the deed, namely, the mining,
extraction and removal of coal, together with limited quantities
of timber.
In Harrison-Wyatt, we declined to consider the issue
whether the surface owner has the right to fracture a coal seam,
because the issue had not been raised by the parties at trial or
on appeal. 267 Va. at 557 n.3, 593 S.E.2d at 238 n.3. That
issue is not before us in the present case because here the Coal
Owner, by entering into its lease with CNX, permitted the
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fracturing of the coal seam without any participation by the
Surface Owners. 2 We find no evidence in the record from which it
may be inferred that the Surface Owners could reasonably be
expected to repay the Coal Owner for the inevitable release of
CBM as a result of the fracturing of the coal seam by the Coal
Owner's lessee. Therefore, the Coal Owner has no equitable
claim against the Surface Owners for unjust enrichment.
Conclusion
We conclude that the Surface Owners have at all times owned
all mineral estates within their lands except coal, and are
entitled to all royalties accrued from the production of CBM
therefrom and those yet to accrue. For the reasons stated, we
will affirm the judgment.
Affirmed.
2
CNX is not a party to this case and our holding has no effect
upon the mutual rights and obligations arising under its lease.
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Swords Creek Land P'ship v. Belcher
Combined Opinion