PRESENT: Lemons, C.J., Goodwyn, Millette, Mims, Powell, and
Kelsey, JJ., and Koontz, S.J.
MALVA BAILEY
OPINION BY
v. Record No. 141702 JUSTICE S. BERNARD GOODWYN
April 16, 2015
CONRAD SPANGLER, DIRECTOR OF
THE VIRGINIA DEPARTMENT OF
MINES, MINERALS AND ENERGY
UPON QUESTIONS OF LAW CERTIFIED BY
THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Pursuant to Article VI, Section 1 of the Constitution of
Virginia and our Rule 5:40, we accepted the following certified
questions from the United States District Court for the Eastern
District of Virginia:
(1) Did the enactment of Virginia Code section
55.1-154.2 1 in 1981, see Acts of Assembly 1981, c.
291, change the ownership of the shell, container
chamber, passage, and space opened underground for
the removal of the minerals to the owner of the
minerals for coal severance deeds executed before
July 1, 1981 that did not otherwise provide for
ownership of the shell, container chamber, passage,
and space opened underground for the removal of the
minerals? In other words, does the presumption of
mine void ownership created by the statute apply to
deeds executed before July 1, 1981?
1
Because Code § 55.1-154.2 does not presently exist in the
Code of Virginia, we interpret the federal district court’s
reference to the relevant statute as a reference to Code § 55-
154.2. We note that all other references to this statute in
the federal district court’s order are to Code § 55-154.2.
(2) If the answer is yes, and the presumption
applies to coal severance deeds executed before July
1, 1981, and assuming that a predecessor in interest
executed a valid coal severance deed in 1887, then
under Virginia law what, if any, ownership interest
in the mine voids would a subsequent grantee surface
owner take if she were deeded the land in 1983?
Would that grantee have any rights to the mine void
under Clayborn v. Camilla Red Ash Coal Co., 128 Va.
383 (1920)?
Factual Background
On May 5, 1887, George W. Sutherland and his wife severed
the mineral estate underlying their parcel of property in
Dickenson County, Virginia, from the surface estate 2 (Sutherland
surface estate) and conveyed “all the coal, iron, petroleum oil
and Gass [stet] and other ores and minerals lying and being in
upon and under all that certain tract of land” to the Virginia
Coal and Coke Company. The severance deed did not specify who
would own the resulting mine void 3 after all of the ores and
minerals were removed. On May 10, 1983, Malva Bailey (Bailey)
2
“‘Surface estate’ is a term intended generally to refer
to the rights of the owner of that portion of the original
tract of land that has not been severed by deeds granting
rights in the mineral estate or other resources of the tract of
land.” Levisa Coal Co. v. Consolidation Coal Co., 276 Va. 44,
57 n.5, 662 S.E.2d 44, 51 n.5 (2008).
3
As the federal district court indicates in its order
certifying the questions to this Court, “mine voids” are “those
spaces or passageways created from the removal of coal hundreds
of feet below the surface.” Bailey v. Spangler, No. 3:14-cv-
00556, at *1 (E.D. Va. filed Dec. 1, 2014).
2
and her husband acquired ownership of a portion of the
Sutherland surface estate.
Procedural Background
On July 7, 2014, Bailey filed a civil complaint in the
Circuit Court of the City of Richmond, asking the court for a
declaratory judgment in her favor, pursuant to 42 U.S.C. § 1983
(2012 & Supp. I 2013), regarding the alleged taking of her real
property by Conrad Spangler (Spangler), the Director of the
Virginia Department of Mines, Minerals and Energy. She alleged
that by issuing mining permits authorizing Dickenson-Russell
Coal Company, LLC (Dickenson-Russell) “to conduct mine
operations” in the mine void beneath her property, Spangler
took her private property rights for private use, purportedly
pursuant to Code § 55-154.2. 4 Bailey asked the court to declare
“Chapter 695, Virginia Acts of Assembly 2012 Session, an act to
amend and reenact §§ 45.1-181 and 55-154.2 of the Code of
Virginia, relating to mine voids” unconstitutional both
facially and as applied because it deprived her of her private
4
Bailey’s constitutional challenge now pending before the
federal district court is directed at the 2012 Act that amended
and reenacted Code § 55-154.2. 2012 Acts ch. 695. Code § 55-
154.2 was originally enacted on July 1, 1981. 1981 Acts ch.
291. The federal district court’s certified questions pertain
to a provision of Code § 55-154.2 as enacted in 1981. Thus,
references to the statute in this opinion are to the 1981
version of the statute unless otherwise noted.
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property rights in the mine void underneath her property in
violation of the Fifth and Fourteenth Amendments to the
Constitution of the United States.
Spangler removed the case to the United States District
Court for the Eastern District of Virginia. He then filed a
motion to dismiss, arguing that Bailey did not own the mine
void beneath her property because Code § 55-154.2 divested her
predecessors in title of ownership of the mine void before
Bailey acquired her property in 1983. According to the federal
district court, under Spangler’s view, “the coal owner became
the actual owner [of the mine void] on July 1, 1981,” when Code
§ 55-154.2 went into effect.
Analysis
In Clayborn v. Camilla Red Ash Coal Co., 128 Va. 383, 390,
105 S.E. 117, 119 (1920), a case of first impression, this
Court held that a surface estate owner retains ownership of a
mine void if the severance deed does not expressly convey the
mine void to the mineral estate owner. Code § 55-154.2,
originally enacted by the General Assembly in 1981, is entitled
“Presumption regarding estate of owner of mineral rights” and,
in contravention to the holding in Clayborn, states as follows:
Except as otherwise provided in the deed by which the
owner of minerals derives title, the owner of minerals
shall be presumed to be the owner of the shell,
container chamber, passage and space opened
underground for the removal of the minerals, with full
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right to haul and transport minerals from other lands
and to pass men, materials, equipment, water and air
through such space. No injunction shall lie to
prohibit the use of any such shell, container chamber,
passage or space opened underground by the owner of
minerals for the purposes herein described. The
provisions of this section shall not affect
contractual obligations and agreements entered into
prior to July one, nineteen hundred eighty-one.
Bailey argues that Code § 55-154.2 explicitly states that
it does not apply to deeds that were executed before the
statute became effective in 1981 and that Code § 55-154.2 did
not divest her predecessors in title of their ownership of the
mine void underlying the surface estate. Moreover, Bailey
contends that interpreting Code § 55-154.2 to apply to deeds
that were executed before 1981 would give “retroactive effect”
to the statute, which is disfavored by this Court. Because the
relevant severance deed in this instance was executed in 1887,
she argues that this Court’s rule from Clayborn applies and
that she owns the mine void beneath her portion of the
Sutherland surface estate.
According to Spangler, the purpose of Code § 55-154.2 “was
to facilitate mineral extraction from mines” by removing the
ability of a surface owner, without an express grant of
ownership of a mine void, to impede mining operations.
Spangler contends that deeds are not “contractual obligations
and agreements” in the context of Code § 55-154.2. He claims
that exempting severance deeds executed prior to July 1, 1981,
5
from the application of the statute would frustrate the purpose
of the statute because most severance deeds predate the
effective date of the statute. Thus, he concludes that the
presumption of mine void ownership in Code § 55-154.2 applies
to the 1887 deed and that Bailey has no ownership interest in
the mine void below the surface estate she purchased in 1983.
Certified Question (1)
The first certified question of law relates to whether the
presumption of mine void ownership created by Code § 55-154.2
applies to deeds executed prior to July 1, 1981.
Our goal in statutory interpretation is to carry out the
General Assembly’s intent “as expressed by the language used
unless a literal interpretation of the language would result in
a manifest absurdity.” Board of Supervisors v. Windmill
Meadows, LLC, 287 Va. 170, 179-80, 752 S.E.2d 837, 842 (2014)
(citation and internal quotation marks omitted). We apply the
plain meaning of unambiguous statutory language. Newberry
Station Homeowners Ass’n v. Board of Supervisors, 285 Va. 604,
614, 740 S.E.2d 548, 553 (2013).
Virginia law does not favor retroactive application of
statutes. Windmill Meadows, 287 Va. at 180, 752 S.E.2d at 843
(collecting cases). For this reason, we interpret statutes to
apply prospectively “unless a contrary legislative intent is
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manifest.” Id. (citation and internal quotation marks
omitted). “[N]ew legislation will ordinarily not be construed
to interfere with existing contracts, rights of action, suits,
or vested property rights . . . .” Harbour Gate Owners’ Ass’n
v. Berg, 232 Va. 98, 103, 348 S.E.2d 252, 255 (1986); see also
Gloucester Realty Corp. v. Guthrie, 182 Va. 869, 875, 30 S.E.2d
686, 688-89 (1944) (“The general rule is that no statute,
however positive in its terms, is to be construed as designed
to interfere with existing contracts, rights of action, or
suits, and especially vested rights, unless the intention that
it shall so operate is expressly declared.”). Absent an
express manifestation of intent by the legislature, this Court
will not infer the intent that a statute is to be applied
retroactively. See Ferguson v. Ferguson, 169 Va. 77, 87, 192
S.E. 774, 777 (1937) (“It is reasonable to conclude that the
failure to express an intention to make a statute retroactive
evidences a lack of such intention.”).
The last sentence of Code § 55-154.2 exempts from the
statute’s application “contractual obligations and agreements
entered into prior to [July 1, 1981].” Bailey asserts that a
deed is clearly a contractual obligation or agreement and that
the provisions in Code § 55-154.2 concerning the presumption of
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mine void ownership should not apply to deeds executed before
July 1, 1981.
Spangler argues that the plain meaning of “contractual
obligations and agreements” in Code § 55-154.2 does not include
severance deeds. Spangler also argues that the General
Assembly purposefully differentiated between deeds on the one
hand and contractual obligations and agreements on the other,
and he notes that the General Assembly uses the terms within
two sentences of each other in different ways. It is pointed
out that the 1981 statute uses the word “deed” in the “except
as” provision but the words “contractual obligations and
agreements” in the “shall not affect” provision, and Spangler
asserts that the Court should assume that different terms in
the same statute are presumed to have different meanings. See
Klarfeld v. Salsbury, 233 Va. 277, 284-85, 355 S.E.2d 319, 323
(1987). Spangler concludes that the natural reading of Code §
55-154.2 is that the statute applies retroactively to all deeds
(unless the deed itself provides for ownership or use of the
mine void) but not to “contractual obligations and agreements
entered into prior to July 1, 1981.”
The Court need not parse the language of the statute
because we are of the opinion that both interpretations reach
the same result. If, as Bailey contends, a “deed” is a
8
“contractual obligation” or “agreement” within the context of
Code § 55-154.2, then the statute is explicitly nonretroactive.
However, even assuming as Spangler contends, that a “deed” is
not a “contractual obligation” or “agreement,” there remains no
manifest statement concerning the retroactive application of
the statute to deeds.
We may not infer the retroactive application of Code § 55-
154.2 to deeds executed prior to July 1, 1981, based upon the
statute’s express exemption of contractual obligations and
agreements entered into prior to that date. Also, we are
unpersuaded by the argument that exempting deeds executed prior
to the statute’s enactment will unduly limit the statute’s
application. That result in itself is not indicative of a
contrary intent by the General Assembly because the legislature
could have expressly stated that the statute retroactively
applies to deeds, if it had desired to do so.
Nothing in the language of Code § 55-154.2 indicates a
manifest legislative intent to retroactively apply the
presumption of mine void ownership to deeds executed before the
date the statute was enacted. Therefore, we hold that the
presumption of mine void ownership created by Code § 55-154.2
does not apply to deeds executed before July 1, 1981.
The first certified question is thus answered in the
negative.
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Certified Question (2)
Having answered Certified Question (1) in the negative,
the Court concludes that Certified Question (2) is now moot.
Certified Question (1)answered in the negative.
10