dissenting:
By her original and amended bills plaintiff, claiming title to certain conveyances to the coal and mining rights and privileges in a tract of one hundred and ten acres of land in Monongalia County, sought to have construed the deeds with some of their particular provisions under which the defendant claims title to the same coal and mining rights, and prayed that those deeds be removed as clouds upon her title to said coal and mining rights.
The answer of- the South Penn Oil Company denied the construction put upon the deeds by plaintiff and put in issue all extraneous facts showing or tending to show that those deeds should receive a construction different than that claimed by them, and according to their plain terms and conditions.
The claims of both parties to this coal and said mining rights originated in the deed of June 14, 1889, and from el. T. Morris’ heirs to Culver G. Thyng and Thomas Loan, trading as C. G. Thyng & Company, whereby the grantors, in consideration of nine thousand dollars, conveyed to the grantees with covenants of special warranty by metes and bounds the said tract, described as containing one hundred and ten acres.
The deed next in order of time, and the one upon which *106the parties differ in their respective contentions, is the deed from C. G. Thyng & Company to Lewis Lemley and David E. Lemley, dated June 19, 1889, only four days after the date of the first -deed referred to, and whereby in consideration of the sum of four thousand dollars, the receipt whereof was thereby acknowledged, the said grantors thereby did “grant and convey unto the said Lewis Lemley and David E. Lemley all that surface of a certain tract or parcel of land containing 110 acres lying- on the head waters of Dolls Run, Monongalia County, "West Virginia, known as the tract of land that F. M. Meredith Guardian &c. and Mary F. Mlorris conveyed to the said grantors on the 14th day of June; 1889, subject to ingress.and egress 'and water privilege for drilling gas and oil wells on the same and the right to lay pipes to convey oil and gas therefrom;” said tract being bounded as in the first deed referred to; and then containing these additional provisions: “And’ it is further understood and agreed that said grantees take the surface of said tract of land subject to the lease thereon to David W. Morris to the first day of March, 1890, for Two Hundred Dollars and said rent from the 14th day of June, 1889, is payable to said grantees, but from the first of March, 1889, to said 14th day of June, 1889, is payable to F. M. Meredith Guardian &c., and that the said grantors in retaimng the oil and gas under said tract, shall have the right to go on said land, erect and place the proper machinery thereon for drilling for oil and gas and ha/ve sufficient water supply for removing gas or oil therefrom or over said land doing no more damiage to the surface of said farm than is necessary to develope and remove said oil or gas from under said farm or tract of land.”
The next deed in order of those exhibited with the bill is that of said C. G. Thyng & Company to South Penn'Oil Company, dated June 20, 1889, whereby in consideration of the sum of seventeen hundred and sixty-two dollars and fifty cents, receipts whereof was thereby acknowledged, the grantors did thereby “grant unto the said grantee, three eighths (%) of the petroleum oil and gas in or under a certain tract or parcel of land containing 110 acres,” and further describe,d *107as the same tract granted to the grantors June 14, 1889, and with the same rights and privileges as their grantors conveyed to them. .
The next deed in the chain of title of defendant company sought to have removed as a cloud upon plaintiff’s title so far as it may affect 'her alleged .right and title to the coal and mining rights and privileges, is a deed dated August 21, 1894, from John D. Case, Trustee, Jason D. Case and Helen Case, his wife, and Culver G. Thyng and Mildred K. Thyng, his wife, to the South Penn Oil Company, whereby in consideration of the sum of three thousand dollars, the receipt whereof was thereby acknowledged, the grantors thereby “sold, assigned, transferred and set over, with covenants of special warranty, unto the said party of the second part the following described ¡real ¡estate, ¡situate, lyhng and being in the County of Monongalia,” and by metes and bounds described as in the previous deeds, and as containing 110 acres, more or less. After the description of the land is the following: “The right and interest hereby conveyed to the above described lands is all the right, title and interest of the said parties of the first part, of in and to said premises, which is the right and title to all the 'minerals, oil and gas in, upon, or under said lands, the title to which lands is held by Lewis Lemley, and David E. Lemley. The said parties of the first part do hereby grant unto the said party of the second part, all their right, title, interest of, in & to all the petroleum oil and gas in and under that.certain other tract or parcel of land in Monongalia County, and State of West Virginia, ■ containing one hundred and fifty-four acres, more or less, with the right of ingress and egress upon said land, sufficient water privileges necessary to the operation thereon, together with the right to all pipes to convey oil and gas, and the right to remove machinery, and fixtures, which tract of land contains in all one hundred and seventy-four acres, more or less, reserving and excepting twenty acres hereafter .mentioned, leaving one hundred and fifty-four acres conveyed hereby, and said certain tract of land adjoins the following named lands, to-wit ;• other lands of the two Lemleys above *108named, Jefferson-Tennant, Asa Sntton, John Barraekman and Sanford Barraekman, excepting and reserving twenty acres therefrom by actual measurement on the north east corner of said tract of land but said twenty acres is not to extend further south than the sugar house on said premises.”
The plaintiff claims that at the time C. G. Thyng & Company, by their deed of June 19, 1889, conveyed to the Lem-leys the tract of 110 acres, described as “all that surface of a certain tract or parcel of land,” the Lemleys by their deed-of the same date, and as a part consideration of the said grant to them, conveyed to C. G. Thyng & Company the oil and gas with like mining rights in and under their adjoining tract of 154 acres, more or less, mentioned in said deed of August 21, 1894. We do not find this Lemley deed in the record. Their theory of the transaction is that these deeds were intended to leave vested in C. G. Thyng & Company only the oil and gas in the 110 acres and to invest in them the oil and gas with like mining rights in the 154 acres as those reserved in their deed for the 110 acres.
The Soiith Penn Oil Company, in its answer, besides the deeds already referred to and exhibited with the bill pleads and relies on the deed of William H. C. Thyng and others, described as the children and heirs at law and devisees of the said C. G. Thyng, deceased, dated June 30, 1920, whereby said grantors, for the' consideration of ‘ ‘ one dollar and of other valuable considerations paid by the party of the second part to the parties of the first part the receipt whereof •is hereby acknowledgjed, as wiell as 'Other iconsiderations moving them” thereto, did “sell, grant and convey unto said party of the second part all of their right, title and interest in and to all the minerals, including all the veins and seams of coal', in, upon and underlying all that certain tract of land lying and situate on the head of Doll’s Run in the County of Monongalia,” and describing the land by the same metes and bounds contained in the prior deeds, and as containing 110 acres, “excepting the oil and gas underlying said land, ’ ’ with covenants of special warranty, and referring for their title to said land to the deed granting the same *109to said Culver G. Thyng and Thomas Loan by F. M. Meredith and others, of June 14, 1889.
It is conceded by counsel for plaintiffs that whatever right, title and interest remained in the said C. G. Thyng & Company, their heirs, devisees and grantees not conveyed to the said Lewis Lemley . and David E. Lemley by the deed of June 19, 1889, has by the several deeds under which it claims title become thereby vested in the defendant South Penn Oil Company. And we understand it is likewise conceded that whatever right and title to the said tract was conveyed by the said C. G. Thyng & Company to the said Lewis Lem-ley and David E. Lemley by the deed of June 19, 1889, has by the various deeds under which she claims thereby become vested in the plaintiff Blake Lemley Ramage, and that if she has thereby. become vested with right and title to the coal and mining rights in and under the said tract of 110 acres, she is entitled to the relief prayed for and granted by the decree appealed from.
It is therefore apparent that the rights of the parties, for the most part, depend on the true construction of the provisions of the deed from C. G. Thyng & Company to Lewis and David E. Lemley, of June 19, 1889, whcih have been heretofore recited. Such rights, title and interest as were not conveyed by that deed to the Lemleys, of course remained in the grantors and have come down to the South Penn Oil Company. It will again be observed that the deed by its terms purports to convey “all that surface of a certain tract or parcel of land containing 110 acres * * * subject to ingress and egress and water privilege for drilling gas and oil wells on the same and the right to lay pipes to convey oil and gas therefrom or over the same and to work upon said land in drilling said wells, or removing any and all machinery therefrom.” And that deed also contains this further covenant: “And it is further understood and agreed that said grantees take the surface of said tract of land subject to the lease thereon to David Morris to the 1st day of March 1890.”' And furthermore; that “the said grantors in retaining the oil and gas under said tract, shall have the *110right to go on said land, erect and place proper machinery thereon for drilling for oil and gas and have sufficient water supply for running said machinery * * * doing no more damage to the surface of said farm than is necessary to develop e and remove said-oil or gas from under said farm or tract of land.”
Prom the written opinion of the judge of the circuit court it would seem that the decree was rested mainly on what the court regarded as the local meaning of the term “surface” in Monongalia County, which the court regarded as controlling, regardless of the prior decisions of this court to be presently referred to. If this proposition he sound, then as suggested in argument, every case of this kind would have to be 'determined by reference to the local meaning of the words employed in the instrument and not according to their plain and ordinary meaning as defined by lexicographers and others. Such a view of the law would, it seems to me, be building property rights upon foundations of sand, which ought not to be regarded with favor by the courts. The defendant company plants itself and predicates its rights on the principles of Williams v. South Penn Oil Company, 52 W. Va. 181 and Dolan v. Dolan, 70 W. Va. 76, 79, 82. On the other hand counsel for plaintiff contend that the first of these cases has been .practically overruled by the second, and besides, that the principles of these cases are inapplicable to the deed here in question, but that the proper rules laid down for the interpretation of instruments of this character are those pronounced in Rock House Fork Land Co. v. Raleigh Brick & Tile Co., 83 W. Va. 20; that the term “surface” in the present deed is ambiguous and uncertain, and that to properly interpret this deed the count should look to the conditions surrounding the parties at the time of the contract and the purposes contemplated and that were in the minds of the parties at the time of entering into the contract.
In Williams v. South Penn Oil Company, the provisions of the deed under consideration were so nearly like those in the present deed that whatever rules ought to govern the one should certainly control the construction of the other *111We find no attempt by counsel for plaintiff to differentiate them by tbe slight difference in verbiage, or otherwise. In that case, after the conveyance of the surface, the rights specifically reserved pertained to coal; in this ease they relate to the oil and gas. In the former case the controversy was over .the right to the oil and gas; in this case it is a controversy respecting the right to the coal claimed by the plaintiff under a deed granting only the surface. So that there are no distinguishing characteristics between them. In the Williams case it was decided that the grant of the “surface”, though only mining rights to take the coal were reserved, did not carry with it the right to the oil and gas as a part of the grant; that the reservation only of the mining rights pertaining to the coal in a grant of the surface did not indicate an intention to convey title to all the other minerals. If such was the proper construction of the deed involved in the Williams case, it must control the interpretation of the deed here in question, so as to leave invested in the grantors C. G. Thyng & Company everything except the surface as defined in that and other cases to be referred to, .and not as including any of the coal or coal seams granted to the defendant company.
But was the Williams case overruled by Dolan v. Dolan? The opinion in that case distinctly negatives this proposition. It says that that case was decided right, and instead of overruling it, it approves it! The only thing in that case relied on by plaintiff’s counsel is, that it is there said that the statement of the law in the first point of the syllabus is inaccurate. That point is as follows: “The word ‘surface’ when specifically used as a subject of conveyance has a definite and certain meaning, and means only that portion of the land which is or may be used'for agricultural purposes.” In the Dolan case Judge Beannon, after referring to the Williams' case and to other judicial decisions and text writers, ^concludes from them that a conveyance of the surface of land without more, means all the solum, the land except the mineral. And in answer to the question, “Why?” he says: “Because the word ‘land’ is not used; if it were, it would take the minerals. *112The word ‘surface’ is used, more limited, and the courts have said it excepts minerals. ”' In the Dolan case the first point of the syllabus is a “Quaere”, not a point of decision, as follows: “Quaere. What does the word’‘surface’ alone, without qualifying words, in a devise of land mean? Does it pass minerals in the land?” The only point of decision is the second one, as follows: “The will in this case confers upon Michael P. Dolan the land devised to him, including minerals, except coal. ’ ’ The fourth clause of the will in that case was: “I will and devise to my son, Michael P. Dolan, in fee the surface of my farm at Wolf Summit containing three hundred and seventeen acres, also six acres of the coal underlying the same”, etc. Distinguishing that case from- the Williams case, Judge BRANNON has recourse to the fact that it was a will he was dealing with and not a deed, and that the presumption against intestacy had to be regarded. To have decided otherwise would have left the testator intestate as to the minerals not reserved and devised to his daughter where there was manifest intention in the will to dispose of the whole estate and leave nothing undis-posed of thereby. And besides this feature of the will, it appears that the testator, in the seventh clause, in devising the coal to his daughter, had recourse again to the fourth clause, and therein declared that by the fourth clause he had devised the said tract of three hundred and seventeen acres of “land,” not “surface”. These and ether provisions of the will were, in the opinion of the court, sufficient to differentiate-that case from the Williams case. So the Dolan case must not be regarded as overruling or affecting the authority of the Williams case, so far as the principles which controlled its decision are concerned. The effect of that decision, and of the Dolan case approving it, is that there were not in the deed under construction any words or provisions denying the word “surface” the effect of its plain -and ordinary meaning, when employed in a deed of conveyance. Who could say, who would say, in these days, when the right to segregate and convey the surface and all of the many strata, coal, oil, gas, iron, salt and other minerals and to hold them in severalty is fully recognized -and protected, that. a conveyance of the *113“surface” without more would take with it all the minerals not specifically excepted? It may he true, as counsel argue, that in 1889 coal was not in the minds of the contracting parties and that it was not known to exist in the 110 acres of land. It may now be true also that there are many other minerals existing in the land, but unknown; but would it be contended that this fact would give to the grantee of the surface all minerals not within the knowledge of the parties to the contract, which would except the minerals? A number of our decisions say that a grant or reservation of all the minerals in or underlying a tract of land will carry all minerals existing therein although their presence was unknown at the time of the grant. “Ordinarily,” says one of our decisions, “in the interpretation of a deed or other instrument, intention indicated only by an unnecessary inference or implication, is not allowed to prevail over a different intention expressed in the words.” White Flame Coal Co. v. Burgess. 86 W. Va. 16. And again in King v. Smith, 88 W. Va. 312, we held that: “The courts will not, by construction, enlarge the estate, conveyed by a deed, where the langauge of the grant is clear, plain and free from ambiguity.” In Rock House Fork Land Co., v. Raleigh Brick & Tile Co., supra, it is said that, “where language of certain import is used it will be presumed that the parties intended the language to have its ordinary and accepted meaning, unless there is a clear expression of intent that the language was used in a different sense. ”
As against this construction of the deed of June 19, 1889, to the Lemleys, already indicated, and the prior' decisions relied on, plaintiff’s counsel say that if the case of Williams v. South Penn Oil Company be not overruled in Dolan v. Dolan, it is repudiated, if not overruled, by the cases of Rock House Fork Land Co. v. Brick & Tile Co., just referred to, and by Horse Creek Land & Mining Co. v. Midkiff, 81 W. Va. 616. I have already referred to the first ease. The meaning of the term “surface” used in a grant was not there involved. The court was there dealing with the term “minerals” and what the parties meant by the words “other minerals” used in the *114grant. The question in that case was whether those terms included a “certain seam of clay;” and construing the deed with reference to other provisions defining the mining rights, we held, point 2 of the syllabus: “Where a deed grants the coal and other minerals in a tract of land, as well as certain rights to be enjoyed by the grantee in the production of such minerals, and the rights so granted are of the character which are necessary to be enjoyed, and which are ordinarily enjoyed, in the production of minerals from mines, that is, by the process of shafting and tunneling-therefor, and there is nothing else showing just what substances the parties intended to include by the language of the grant, the intention of the parties as to the extent of the minerals granted may be determined from the language of the mining rights granted as incident thereto, and such grant limited to such minerals as are ordinarily produced by the exercise of such mining rights as are granted by the deed.” There is nothing in that case in conflict with either the Williams or Dolan case. Indeed these cases are not even referred to, or any effort made to distinguish them. The same may be said of Horse Creek Land & Mining Co. v. Midkiff; for in that case the Williams and Dolan cases are not mentioned, nor any indication of an intention to change or affect their authority. The only application the latter case can have to the case at bar would be to that provision of the' deed of August 21, 1894, from John D. Case and others to the defendant company, defining the right and interest thereby conveyed, and already quoted, “which is .the right and title to all the minerals, oil and gas in, upon or'under said lands, the title to which lands is held by Lewis Lemley, and David E. Lemley.” It is said that the words, “oil and gas in,” are placed in apposition to the words “all the minerals” and are descriptive of the kind of minerals intended by the instrument, as well as the word “coals” after the words “all minerals” in the Horse Creek Land Company case, and justifies the conclusion in this case as in the former, that only the oil and gas were intended by the grant. But it seems to us to be a sufficient answer to this proposition that it matters not what the *115grantors in the deed in which these words occur intended thereby. The question here is, what did the Lemleys get by the deed to them of June 19, 1889 ? In that deed no such appositive words occur. Besides, the defendant company does not rely alone on the deed of August 21, 1894. It has obtained and impleaded in support of its right and title the deed of June 30 ,1920, already quoted; and unless the plaintiff acquired from the Lemleys and her intermediate grantors the right to the coal, undoubtedly the defendant got the coal, if not before by its other deed, certainly by the later deed of June 30, 1920.
Two other points are made against defendant’s claim of title, which perhaps should be mentioned: First, that in the deed of August 21, 1894, the mineral rights granted are described as “upon, or under said lands, the title to which lands is held by Lewis Lemley, and David E. Lemley.” But if only the title to the surface thereof passed to them by the deed of June 19, 1889, the recital in the deed of August 21, 1894, would not change the fact nor operate as an admission or be matter of estoppel on defendant or its grantors. This recital is not inconsistent with its claim to the minerals, for they did and do underlie the land to which the Lemleys had title to the surface.
The second proposition is that not until 1914 did either the Thyng heirs, the South Penn Oil Company or any intermediate holder cause the coal or other minerals to be separately assessed and pay the taxes thereon. Since and including that year, however, there has been separate assessment of the minerals and mineral rights, and the taxes have been paid by the defendant company, and not by the plaintiff or her predecessors.
This opinion was prepared with the expectation that it was to become the opinion of the majority, but afterwards those concurring in reversing the decree below came to a different conclusion, and a new opinion was concurred in by them, in which Judge Lively and I can not concur; and he and I have agreed to file this opinion as expressive of our views on the question involved. We think the ease on which our *116former decisions were predicated, so elaborately reviewed and sought to be differentiated by Judge MeREdith, sustains the principles laid down in our former decisions, including •the case which the opinion of the majority undertakes to overrule, and that that case became a rule of property which ought not to be disturbed.
Lively, Judge, concurs in this opinion.