Black Wolf Rod & Gun v. International Dev. ( 2016 )

J. A18021/16
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
BLACK WOLF ROD & GUN CLUB, INC., : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
INTERNATIONAL DEVELOPMENT :
CORPORATION, PENNLYCO, LTD., :
SOUTHWESTERN ENERGY : No. 1972 MDA 2015
PRODUCTION COMPANY, AND :
VIRGINIA ENERGY CONSULTANTS, LLC :
Appeal from the Order Entered October 19, 2015,
in the Court of Common Pleas of Lycoming County
Civil Division at No. 15-00411
BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., AND STEVENS,* P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED OCTOBER 25, 2016
Appellant Black Wolf Rod & Gun Club, Inc. (“Black Wolf”), appeals from
the October 19, 2015 order entered in the Court of Common Pleas of
Lycoming County that granted the preliminary objections in the nature of a
demurrer of appellees International Development Corporation (“IDC”);
Pennlyco, Ltd. (“Pennlyco”); and Southwestern Energy Production Company
* Former Justice specially assigned to the Superior Court.
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(“SWN”)1 (collectively, “appellees”) and dismissed Black Wolf’s complaint
with prejudice.2 We affirm.
The trial court set forth the following in its October 19, 2015 order,3
granting preliminary objections in the nature of a demurrer:
On February 11, 2015, Black Wolf filed a one
count complaint seeking to quiet title pursuant to
Pa.R.C.P. 1061 and the Declaratory Judgment Act,
42 Pa.C.S.A. §§ 7532, et seq. as to the oil, gas and
other minerals (“Subsurface Rights”) underlying
property known as warrant numbers 1602 and 1605,
consisting of about 1,717.37 acres located in Pine
and Jackson Townships in Lycoming County
(collectively, “Property”).[Footnote 2] Black Wolf
claims ownership in fee simple to the Property by
virtue of a deed from B.L. Miller, et ux., et al[.] to
Black Wolf dated April 26, 1926, recorded in the
Lycoming County Recorder of Deeds at Deed
Book 264, Page 395 (“1926 Deed”). Black Wolf’s
source of title to the Property arises from a serious
[sic] of deed transfers, summarized as follows.
[Footnote 2] SWN references the
Property as consisting of about
1,958.5 acres.
1893 Deed from Samuel P. Davidge,
et[] ux., et al., to Elk Tanning Co.[;]
1
The record reflects that effective November 24, 2014, Southwestern
Energy Production Company became SWN Production Company, LLC.
2
The record reflects that Virginia Energy Consultants, LLC, did not join in
the preliminary objections of IDC, Pennlyco, and SWN.
3
The record reflects that the trial court dated the order granting preliminary
objections in the nature of a demurrer October 16, 2015, but filed the order
on October 19, 2015.
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1894 Treasurers Deed (tax sales) to
G.W. Childs as to a portion of Warrant
No. 1605;
1898 Quit Claim Deed transferring above
tracts from G.W. Childs to Elk Tanning
Co.;
1903 Deed from Elk Tanning Co. to
Central Pennsylvania Lumbar [sic]
Company ([“]CPLC[”]);
1906 Treasurer Deed (tax sale) to
Calvin H. McCualey, Jr., as to Warrant
No. 1602;
1908 Treasurer Deed (tax sale) to
Calvin H. McCualey, Jr. as to Warrant
No. 1605;
1908 Quitclaim Deed from Calvin H.
McCualey, Jr., et[] ux. to CPLC as to
Warrant 1602;
1910 Quitclaim Deed from Calvin H.
McCualey, Jr., et[] u[x]. to CPLC as to
Warrant 1605;
1925 Deed from CPLC to R.N. Miller,
et[] ux., et[] al.;
1926 Deed from B.L. Miller, et ux.,
et al[.] to Black Wolf.
The [1893] Deed provides the following in
pertinent part.
Excepting and reserving, however
from this conveyance on all the lands
described above for the benefit of the
said parties of the first part, their heirs
and assigns forever, all minerals, oils and
gases in, upon or under said lands with
the perpetual right of ingress egress and
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regress over, upon and across said lands
for the purpose of mining, boring for and
removing said minerals, oils or gases.
The parties agree that the 1893 Deed from
Samuel P. Davidge created a horizontal severance of
the Subsurface Rights. However, since the severed
oil and gas interests were not separately assessed
from the surface of the property and since the
Property constituted unseated lands pursuant to An
Act Directing the Mode of Selling Unseated Lands for
Taxes, Act of 3 April 1804, 4 Sm. L. 201, as
amended (“1804 Act”), the effect of the tax sales
under the 1804 Act was that the horizontal
severance was extinguished by the tax sales of the
Property to Calvin H. McCauley [sic] and the surface
and subsurface estates of the Property merged. As a
result, Warrant 1602 and Warrant 1605 were
conveyed to CPLC with the Subsurface Rights in
1908 and 1910 respectively.
All parties claim title to the Property from CPLC
and all parties agree CPLC owned the Subsurface
Rights to the Property by the conveyances in 1908
and 1910. [Appellees] contend that the 1925 Deed
severed and reserved the Subsurface Rights in and
under the Property to CPLC in the same manner that
the 1893 Deed did for Samuel P. Davidge.
Black Wolf contends that the 1925 Deed from CPLC
to R.N. Miller, et[] ux., et[] al. did not effectuate a
severance of the Subsurface Rights because the
1925 Deed excepted and reserved the Subsurface
Rights only “as fully as” those rights were excepted
and reserved by the 1893 Deed and the Subsurface
Rights excepted and reserved in the 1893 Deed were
subsequently extinguished by the tax sales of 1908
and 1910.
[The] 1925 Deed from CPLC to R.N. Miller,
et[] ux., et[] al. states the following[:]
THE two pieces of land above described
being part of the same lands conveyed
by Samuel P. Davidge et[] al. to the
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Elk Tanning Company by deed dated
December 7th, 1893 recorded in the
office for the Recording of deeds in and
for the County of Lycoming in Deed
Book 600 No. 139 at page 259 on
January 19th, 1894 and part of the same
lands conveyed by the Elk Tanning
Company to the Central Pennsylvania
Lumber Company by deed dated May 25,
1903, recorded in the office for the
recording of deeds in and for the County
of Lycoming in Deed Book 183 at
page 328 on June 12, 1903. This
conveyance is subject to all the
reservations in said last recited deed.
EXCEPTING AND RESERVING, however,
from this conveyance on all the lands
above described, all minerals, oils, and
gases in, upon or under said lands, with
the perpetual right of ingress, egress and
regress over, upon and across said lands,
for the purpose of mining, boring for and
removing said minerals, oils, or gases
as fully as said minerals, oils and gases
and rights were excepted and reserved in
deed from Samuel P. Davidge et[] al. to
the Elk Tanning Company dated
th
December 7 , 1893 above recited.
ALSO excepting and reserving unto the
Central Pennsylvania Lumber Company,
its successors and assigns all necessary
rights of way for wagon roads, sled
roads, log slides and tramroads
through[,] over and across the lands
above described for the purpose of
getting to and from other lands now
owned by the Central Pennsylvania
Lumber Company, or hereafter acquired
by said Lumbar [sic] Company.
THIS conveyance is made and delivered
in pursuance of an agreement between
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the Central Pennsylvania Lumbar [sic]
Company, of the first part and R.N. Miller
and B.L. Miller, co-partners of the second
part, dated June 24, 1920. (emphasis
added)
Black Wolf contends ownership of the
Subsurface Rights by the conveyance by the 1926
Deed from B.L. Miller to them. [Appellees] contend
that the Millers never had ownership of the
Subsurface Rights under the 1925 Deed and
therefore had no interest to convey to Black Wolf.
Instead, [appellees] claim ownership of the
Subsurface Rights through a serious [sic] of deed
transfers, beginning with the 1942 Deed from CPLC.
Pennlyco claims ownership of an undivided
12.5% interest in the Subsurface Rights to the
Property by Deed in 1984 and corrective deed in
1992 from Kenneth F. Yates to Pennlyco. Similarly,
IDC claims ownership of an undivided 87.5% interest
in the Subsurface Rights to the Property by Deed
dated August 3, 2005 from Gerard J. Barrios,
Administrator for the Estate of Clarence W. Moore to
IDC. Finally, SWN and Virginia Energy claim an
interest in the Subsurface Rights underlying the
Property pursuant to an Oil and Gas Lease between
IDC and Virginia Energy, dated December 1, 2005,
recorded at Book Volume 6197, Page 327.
Preliminary Objections
On March 5, 2015, IDC filed a preliminary
objection in the nature of a demurrer to the
complaint in essence contending that the deeds of
record established IDC’s interest in the Subsurface
Rights by establishing that the Subsurface Rights
were severed by the 1925 Deed and reserved by
CPLC and subsequently transferred to them through
a chain of title in the amount of 87.5%. On
March 18, 2015, [SWN] filed preliminary objections
in the nature of a demurrer on the grounds that the
action must be commenced by an ejectment action
rather than a quiet title action, that Black Wolf failed
to name and joined [sic] all necessary parties and
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that the exception and reservation language in the
1925 Deed reserved the Subsurface Rights in and
under the Property to CPLC, from whom a chain of
title resulted in their lease to the rights. On
March 26, 2015, [Pennlyco] joined the preliminary
objections of IDC and SWN.
Order of court, 10/16/15, at 1-5.
Appellant raises the following issue for our review:
Did the Trial Court err when it sustained a
preliminary objection to the Complaint raised
pursuant to Pa.R.A.P. [sic] 1028(a)(4) and dismissed
the Complaint with prejudice based upon the Trial
Court’s conclusion that a provision addressing oil,
gas and minerals in a Deed executed in 1925 was an
affirmative exception and reservation of the oil, gas
and minerals underlying the property at-issue, when
such conclusion was not supported by the language
in the instrument itself or the circumstances
surrounding its execution?
Appellant’s brief at 4.
We set forth our standard of review, as follows:
When reviewing the dismissal of a complaint based
upon preliminary objections in the nature of a
demurrer, we treat as true all well-pleaded material,
factual averments and all inferences fairly deducible
therefrom. Where the preliminary objections will
result in the dismissal of the action, the objections
may be sustained only in cases that are clear and
free from doubt. To be clear and free from doubt
that dismissal is appropriate, it must appear with
certainty that the law would not permit recovery by
the plaintiff upon the facts averred. Any doubt
should be resolved by a refusal to sustain the
objections. Moreover, we review the trial court’s
decision for an abuse of discretion or an error of law.
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B.N. Excavating, Inc. v. PBC Hollow-A, L.P., 71 A.3d 274, 277-278
(Pa.Super. 2013) (citations omitted). “A demurrer should be sustained only
when the complaint is clearly insufficient to establish the pleader’s right to
relief.” Id. at 278 (citation omitted).
Here, no dispute exists that the 1893 deed from Samuel P. Davidge to
Elk Tanning Company horizontally severed the land and that the language of
that conveyance created a subsurface estate in favor of Davidge and
conveyed a surface estate to Elk Tanning Company. The parties also agree
that under then-existing law, the subsequent tax sales in 1906 and 1908
merged the surface and subsurface estates. See Herder Spring Hunting
Club v. Keller, 93 A.3d 465 (Pa.Super. 2014), affirmed, 2016 Pa. LEXIS
1512 (Pa. July 19, 2016) (confirming that under the tax plan in place in the
1800s, a tax sale of land, absent proof of payment of tax within two years,
caused the surface and subsurface land rights to merge). Therefore, as
Black Wolf concedes, “the core question in the case at-bar regrading [sic]
the ownership of the oil, gas and minerals underlying the Property, is
focused on evaluating a single instrument: the 1925 Deed.” (Appellant’s
brief at 14.)
When construing a deed,
a court’s primary object must be to ascertain and
effectuate what the parties themselves intended.
The traditional rules of construction to determine
that intention involve the following principles. First,
the nature and quantity of the interest conveyed
must be ascertained from the deed itself and cannot
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be orally shown in the absence of fraud, accident or
mistake. We seek to ascertain not what the parties
may have intended by the language but what is the
meaning of the words they used. Effect must be
given to all the language of the instrument, and no
part shall be rejected if it can be given a meaning. If
a doubt arises concerning the interpretation of the
instrument, it will be resolved against the party who
prepared it . . . . To ascertain the intention of the
parties, the language of a deed should be interpreted
in the light of the subject matter, the apparent
object or purpose of the parties and the conditions
existing when it was executed.
Pa. Servs. Corp. v. Tex. E. Transmission, LP, 98 A.3d 624, 630
(Pa.Super. 2014), quoting Consolidation Coal Co. v. White, 875 A.2d 318,
326 (Pa.Super. 2005). Whether a deed is ambiguous is a question of law for
the court. Pa. Elec. Co. v. Waltman, 670 A.2d 1165, 1169 (Pa.Super.
1995). When interpreting an unambiguous deed, a court is limited to the
deed itself and cannot consider parol evidence. Id.Here, Black Wolf complains that the language of the subsurface rights
clause in the 1925 deed was ineffective to horizontally sever the property
and reserve the subsurface rights in favor of the grantor, CPLC, for four
reasons. First, Black Wolf claims that because the 1925 subsurface rights
clause referred back to the 1893 subsurface rights clause and the 1893
subsurface rights were extinguished and merged with surface rights as a
result of the subsequent tax sales and were, therefore, nonexistent, the
1925 subsurface rights clause that referred back to that nonexistent 1893
clause renders the 1925 subsurface rights clause ineffective. Second, Black
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Wolf contends that because the 1925 subsurface rights clause referred back
to and used language from the 1893 deed, the 1925 subsurface rights clause
demonstrates CPLC’s intent to reserve the subsurface rights in accordance
with the 1893 conveyance which was a nullity and, therefore, renders the
1925 subsurface rights reservation a nullity. Third, Black Wolf argues that
because the 1925 access road clause is unambiguous and the subsurface
rights clause is ambiguous, this is “proof that the intent was not to
affirmatively except and reserve those interests.” (Appellant’s brief at 25.)
Finally, Black Wolf complains that because the 1925 access road clause
contained words of heirship and the 1925 subsurface rights clause did not,
this is “proof” that the 1925 subsurface rights clause “did not function as an
affirmative exception and reservation of the oil, gas and minerals.” (Id. at
29.)
Transfer of the surface estate with the intent to retain rights in the
mineral estate requires explicit deed language. See Sheaffer v. Caruso,
676 A.2d 204 (Pa. 1996) (holding that by using the term “reserving,” [in the
deed] [the grantor] created in herself an estate in the oil and gas”).
Language such as the following has been held to be sufficient to reserve a
subsurface estate:
EXCEPTING AND RESERVING from First Tract and
Second Tract all the coal and mining rights and the
oil and gas as fully as the same have been excepted
and reserved or conveyed by former owners.
Id. at 205.
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Here, in construing the plain meaning of the 1925 deed, the trial court
concluded that the subsurface rights clause undoubtedly reserved subsurface
rights as a result of the “excepting and reserving” language and that by
using the words “as fully as,” the grantor intended to reserve those
subsurface rights in the same manner as was done by the grantor in the
1893 deed. Our supreme court’s decision in Sheaffer, supra, supports the
trial court’s interpretation of that language.
Additionally, the trial court interpreted the access road clause
contained in the 1925 deed as creating an easement. Although Black Wolf
takes issue with inclusion of words of heirship within that clause while those
words are excluded from the subsurface rights clause, the trial court
recognized that the 1893 deed created no easement. As such, unlike the
subsurface rights clause, CPLC was unable to refer back to the 1893 deed to
except and reserve certain rights of way as fully as were excepted and
reserved in a prior estate.
Although Black Wolf has advanced many theories as to what the
grantor may have intended by the 1925 deed language, the trial court
properly ascertained the meaning of the words used in the deed.
Consequently, it is certain that upon the facts averred, the law would not
permit Black Wolf to recover. Therefore, the trial court neither abused its
discretion nor committed an error of law when it dismissed Black Wolf’s
complaint based upon preliminary objections in the nature of a demurrer.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/25/2016
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