Present: All the Justices
DELORES B. VICARS, ET AL.
v. Record No. 941447 OPINION BY JUSTICE ELIZABETH B. LACY
June 9, 1995
FIRST VIRGINIA BANK-
MOUNTAIN EMPIRE, ET AL.
FROM THE CIRCUIT COURT OF WISE COUNTY
J. Robert Stump, Judge
In this appeal, we consider whether general language in a
deed was sufficient to convey mineral interests in a tract of
land which was not specifically identified in the deed.
This controversy arose when Dennis Barnette, trading as
Kodiak Mining Company (Kodiak), removed coal from a 71.75-acre
tract of land in Wise County. Kodiak paid First Virginia Bank-
Mountain Empire (the Bank) $189,799.59 in production royalties
based on the Bank's claim that it owned the mineral interests
in the tract. The Bank's ownership claim was disputed by the
appellants, Delores B. Vicars, June B. Belcher, Mickey B.
Hicks, John D. Baker, Jr., and Eva A. Baker (the Baker family).
The Baker family maintained that the Bank had only a one-half
interest in the tract's mineral rights and that they owned the
other one-half interest. The Baker family filed suit against
Kodiak and the Bank, alleging that the coal was removed without
the Baker family's permission and seeking damages for
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intentional trespass and waste.
1
The Baker family originally sought an injunction to stop the
mining of the coal but, on learning that the mining had
terminated, the request for an injunction was withdrawn. The
trial court then granted the Baker family's motion to transfer
the case to the law side of the court.
Prior to trial, Kodiak and the Bank filed a motion for
partial summary judgment on the issue of damages. The trial
court granted the motion, holding that the Baker family
consented to the mining of the coal and agreed to the royalty
rate paid by Kodiak mining. Based on this holding, the Baker
family's potential damages were limited to damages based on
their claimed ownership interest only: fifty percent of the
royalties paid by Kodiak mining for the removal of the coal
from the disputed tract, calculated to be $94,899.79.
The case proceeded to trial on the issue of the parties'
ownership interests in the 71.75-acre tract. The trial court,
citing Amos v. Coffey, 228 Va. 88, 320 S.E.2d 335 (1984),
concluded that a 1923 deed from J.L. Litz and his wife (J.L.),
the Baker family's predecessor in title, to A.Z. Litz (A.Z.), a
predecessor in title to the Bank, conveyed J.L.'s interest in
the 71.75-acre tract to A.Z. Therefore, the trial court held
that the Baker family had no interest in the mineral rights of
the tract and was not entitled to any damages stemming from the
removal of coal from that tract. The Baker family appealed,
assigning error to the trial court's decisions on both the
ownership and damages issues. We consider these assignments in
order.
I.
The ownership rights at issue initially depend on the
construction of the 1923 deed. The Bank claims that the trial
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court correctly held that this deed conveyed the mineral
interests of J.L. in the 71.75-acre tract to A.Z. and, as
successor in title to A.Z., the Bank now owns those interests.
The Baker family asserts that the 1923 deed did not convey any
interests in the 71.75-acre tract but that J.L. retained those
interests until he died intestate in 1940. The Bank's interest
in the mineral rights in the tract, the Baker family contends,
did not arise until 1948, when J.L.'s daughter and sole
surviving heir, Mabel Litz Baker, and her husband executed a
deed conveying a one-half undivided interest in the mineral
rights of the 71.75-acre tract to A.Z. Litz, Jr.
In construing deeds, the intent of the grantor should be
ascertained through the words used in the conveyance, where
possible. Trailsend Land Co. v. Virginia Holding Corp., 228
Va. 319, 325-26, 321 S.E.2d 667, 670 (1984). The trial court
held that the 1923 deed was not ambiguous and neither party
contends otherwise. Where the terms of a deed are not
ambiguous, we "look no further than the four corners of the
instrument under review." Id. at 325, 321 S.E.2d at 670.
Therefore, we confine our review to the provisions of the 1923
deed.
The 1923 deed stated, in pertinent part, that J.L.
conveyed "all of those certain tracts pieces or parcels of land
lying and being situate in the county of Wise, Virginia, and
more particularly bound and described as follows." This
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language was followed by seven paragraphs, each of which
described certain tracts of land by deed book reference and
acreage. The referenced deeds were those used to convey the
property to a predecessor in title, Milburn Gilliam. The
disputed 71.75-acre tract was not among those tracts listed and
described in the deed. The seventh paragraph of the deed, in
addition to describing a parcel of land conveyed to Gilliam by
W.J. Ireson and his wife, contained the following language:
all the descriptions in the above given references
are made a part and embodied as a part of this
conveyance, and the intention of this deed is to
convey all the rights, title and interest acquire[d]
by [J.L.] from the wife and heirs of Milburn
Gilliam's estate.
The Bank argues that the general language in the seventh
paragraph referring to the conveyance of all the rights, title,
and interest acquired from Gilliam included J.L.'s mineral
rights in the 71.75-acre tract even though that tract was not
specifically described or mentioned in the deed. This
construction of the deed's language, the Bank contends, is
supported by the decision in Amos v. Coffey, 228 Va. at 94, 320
S.E.2d at 338.
The deed in Amos conveyed specific parcels, identified by
metes and bounds descriptions, "in or near the Town of Gretna"
in Pittsylvania County. Id. at 90, 320 S.E.2d at 336. After
specifically identifying the parcels in Gretna, the deed
provided:
It is the intention of the parties of the first
part to convey to the party of the second part all
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the real estate which they now own in Pittsylvania
County, Virginia, including but not restricted to the
lands described above.
Id.
We held that the deed not only conveyed the identified
parcels, but also conveyed the grantors' one-twelfth undivided
interest in a farm located near Gretna, even though the farm
was not specifically identified in the deed. The transfer of
this property was accomplished by the general words of
conveyance contained in the deed. Id. at 94, 320 S.E.2d at
338.
Amos, however, is inapposite because there are significant
differences between the intention and conveyance language in
the two deeds. Not only does the Amos deed recite the
intention of the grantors to convey "all" interests in land in
Pittsylvania County, it unequivocally expands the conveyance to
property beyond that specifically described in the deed. No
analogous language is found in the deed at issue here.
A second and equally significant difference between Amos
and the instant case is found in the language of conveyance.
The Amos deed conveyed parcels located "in or near" Gretna. In
Amos, the Court found that the property identified by the metes
and bounds descriptions exhausted the class of property to be
conveyed "in" Gretna. The general language in the deed
identified a second class of property to be conveyed "near"
Gretna. The grantors' interest in the farm in Pittsylvania
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County located "near" Gretna was part of the second class of
property conveyed. Id. at 94, 320 S.E.2d at 338.
In the instant case, there is only one class of property
involved: "all of those certain tracts § of land lying § in
the county of Wise, Virginia, and more particularly bound and
described as follows" (emphasis added). The identification of
the 11 specific tracts of land exhausted the class of tracts
"in the county of Wise, Virginia and more particularly bound
and described," as the Bank notes. However, unlike Amos, in
which two classes of property were involved, the 1923 deed in
this case does not identify any other class of property through
which the mineral rights in the disputed tract could have been
conveyed.
Furthermore, the phrase "all the rights, title and
interest acquire[d] § from the wife and heirs of Milburn
Gilliam's estate" does not describe the physical property
conveyed but rather involves the nature of the ownership
rights, or estate, conveyed. J.L. could convey mineral rights
only, not a fee simple interest.
Considering the language used, we conclude that J.L. did
not convey his interest in the 71.75-acre tract to A.Z. by the
1923 deed. The grantor's intention, as reflected in the 1923
deed, was to convey all his interest acquired from the wife and
heirs of Gilliam's estate in those tracts in Wise County which
were specifically described in the deed. Accordingly, the
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Bank's interest in the mineral rights of the 71.75-acre tract
is limited to the one-half undivided interest acquired by its
predecessors in title through the 1948 deed from Mabel Litz
Baker.
II.
The Baker family also assigns error to the trial court's
action in granting the Bank's motion for partial summary
judgment limiting damages to one-half of the mining royalties
paid by Kodiak. The Baker family contends that "material facts
were in dispute concerning the issue of trespass or waste
damage." We disagree.
As the basis for granting the motion for partial summary
judgment, the trial court relied on a January 6, 1992 letter
from the Baker family's attorney to the Bank's attorney. 2 That
letter stated, in part, "my clients do not wish to impede the
mining on the tract while these title questions are being
reviewed." Kodiak received a copy of this letter.
The Baker family states on brief that they agreed that
they "would not stop efforts to strip mine the tract," but
qualified that agreement by limiting it to "a short time while
counsel for the Bank provided proof that the Baker family did
2
This correspondence was attached to the Baker family's
response to the Bank's request for admissions. These responses
were before the trial court for determination of the motion for
partial summary judgment.
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not own a one-half interest in the subject mineral tract."
This limitation, however, is not contained or reflected in the
January 6, 1992 letter, and subsequent correspondence between
counsel for the Bank and the Baker family contained no
reference to, or indication of, any change in the position
taken in the letter regarding the mining operation. The focus
of the entire correspondence concerned the title dispute.
Furthermore, the Baker family does not claim that they told the
Bank or Kodiak that they had changed their position and wanted
the mining operations terminated.
We agree with the trial court that the statement in the
January 6, 1992 letter, as a matter of law, constituted consent
by the Baker family to the mining operations. It is axiomatic
that a party cannot collect damages based on theories of waste
or trespass when the party consented to the very actions
alleged to constitute trespass or waste. See, e.g., Cooper v.
Horn, 248 Va. 417, 423, 448 S.E.2d 403, 406 (1994)("trespass is
an unauthorized entry"); Chosar Corp. v. Owens, 235 Va. 660,
664, 370 S.E.2d 305, 308 (1988)(mining without consent of all
co-tenants constituted waste). Accordingly, any dispute in
material facts relating to the issue of trespass or waste
damages was irrelevant.
For the reasons stated, we will reverse the trial court's
judgment denying the Baker family's claim to an undivided one-
half interest in the minerals and mineral rights on the 71.75-
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acre tract, affirm the judgment with respect to the damage
issue, and enter final judgment.
Affirmed in part,
reversed in part,
and final judgment.
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