Bruen v. Thaxton , 126 W. Va. 330 ( 1943 )

I am in full agreement with the conclusion reached by the majority of the Court, but, without questioning the accuracy of the result, I am not in harmony with the majority's method of treatment and think that what is, to my mind, a much simpler and more direct process can be used to reach the same end.

It is well settled in this State that in giving effect to a conveyance or deed, the intention of the parties is the governing and controlling principle for the courts to apply. We have a controlling statute. Code, 36-3-4. That being true, the meaning of the words and phrases used is to be inquired into and fixed according to the current usage at the time the instrument was executed. Otherwise, in many instances, the effect of a written instrument would undergo continual alteration, and would have no permanence. In order to apply that rule it is not necessary that the instrument contain a possible double meaning. We are not, here, engaged in construing an ambiguity. Our inquiry is simply to arrive at the expressed intention of the parties. I therefore agree with the contention of the appellant that the phrase contained in the reservation under consideration, "coal and iron minerals", is to be read in the light of its meaning at the time of the execution and delivery of the Bruen deed to the grantee, Thaxton, or in the year 1854. See Chapman v. Mill Creek Coal and Coke Co., 54 W. Va. 193,196, 46 S.E. 262. Further, the known circumstances surrounding the parties at that time as shown by authoritative local history are to be considered without allegation and proof thereof.

The question to be determined is: What did the seller intend to retain and what did the buyer know he was not purchasing at the time of the deed?

Since in 1854 both coal and iron were thought to underlie this section in commercially paying quantities, there, of course, is no doubt that the reservation was intended to include them, and all of the kindred natural resources which preceded both in point of development. But it is equally clear that some minerals were to pass by virtue of the granting clause in the Bruen deed. Otherwise the reservation would not have been limited to coal and iron minerals. The logical result is that all minerals not specifically covered by the reservation were intended to pass to the grantee. Certainly that is true of all minerals known then to be of commercial use. That can be determined by taking judicial notice of the commonly known and uncontroverted local history as stated in John P. Hale's "Trans-Allegheny Pioneers" and in "West Virginia Handbook" of 1870 compiled by our then Commissioner of Immigration.

Petroleum or oil had then been known for centuries as a lubricant and was generally known to underlie this section to such an extent that the Kanawha River became popularly called "Old Greasy", due to the quantity of oil discovered, but not saved, in drilling salt wells. Natural gas had been known for many years and it had been drilled for and found as a frequent incident in connection with the salt industry for the purpose of using its rock pressure underlying the salt brine to force the brine to the surface, and for the further purpose of using it as fuel in salt furnaces. In my opinion there can be no doubt that at the date of the deed under consideration the average person in this community knew of the commercial use of coal, iron, oil and gas and also knew that they underlay the surface in supposedly usable quantities. That being so it follows as a matter of course that the reservation contained in the deed now before the Court includes only the known minerals expressly specified, and excludes at least the then known minerals not expressly named.

I believe also that the foregoing viewpoint expressed touches on the generally recognized principle that the law favors the vesting of estates and therefore disfavors the splitting of fee ownership and for this reason reservations are to be strictly construed. Adkins v. Huff, 58 W. Va. 645, 650, 52 S.E. 773, 3 L.R.A. (N.S.) 649; Chapman v. Mill Creek Coal and Coke Co.,54 W. Va. 193, 196, 46 S.E. 262. This rule of construction is, of course, not to be confused with that to the effect that incase of doubt the language of a deed is to operate against the interest of the grantor. To bring the last stated rule into play requires a balanced meaning, the rule simply tipping the balance. Here we have not reached that point, but are striving to determine the intention of the parties in order to avoid doubtful meanings.

We are urged by the appellant to consider the fact that Bruen would not have intended, as the owner of the fee, to have divided a tract of approximately forty-seven thousand acres "through unnecessarily variant reservations" into estates of different kinds. That is exactly what Bruen did. Some of his "outsales" had no mineral reservations of any sort. Others, as is shown by this record, contained reservations differently worded in at least a dozen ways, so that there was no over-all standard adopted nor followed by Bruen. Under those conditions the courts will not create nor impose their own standards. To my mind, it does not strengthen appellant's position to so urge.

We are also urged to consider the subsequent deeds beginning with that of Bruen's immediate grantee, as placing a practical construction upon the meaning of the language used by Bruen in 1854. Of course, at best from the standpoint of appellant, this can be done only in order to resolve an ambiguity. If there is an ambiguity, the first principle to be followed is to construe the instrument as against the interest of the grantor, and even with the concession that there is an ambiguity, in my opinion, the solution would be reached under admitted methods of construction considerably before applying the extremely attenuated idea that the course of conduct followed by one party to a bilateral contract can be accepted as disclosing an effective meeting of minds (note the plural) in which process he could, without the participation of Bruen, represent one side only. Bruen's practical interpretation might be said to rest upon his long delayed assertion of ownership.

Citing 17 Corpus Juris Secundum at page 724, Page on Contracts and Elliott on Contracts as authority for the transposing of words in a written contract to arrive at the intention of the parties, the appellant asserts that by transposing the word "and" the reservation before us would be made to read, "all coal and iron and minerals". It will be noted that adopting that reading is not simply altering the structure of the same wording, but involves the supplying of an additional word, "and". I do not believe that the method suggested is sustained by the text citations used because it is not a transposition. It is an interpolation of the word "and", a practice which is rarely, and only in extremely clear cases, permitted by the courts.

It is rather difficult to apply the holdings in recent cases in this jurisdiction having to do with the meaning of the word "minerals" and at the same time to reason that the correct way to reach the sense of language is to read it in the light of the meaning when used. The difficulty is increased by the fact that in the decided cases the language is not the same and the further fact that the cases we are asked to apply, in effect, overrule previous cases the effective date of which more nearly coincides in point of time with the year 1854, The decisions of the courts fixing the meaning of words as used in different instruments at different times cannot be binding, although persuasive, when it comes to fixing the meaning of a paper executed by different parties under different circumstances and at different times. If we were dealing with words used in a scientific sense, the meaning of which is to remain permanent if possible, the rule stated in the first point of the syllabus would apply. But we are not. We are here dealing with words of art as distinguished from scientific terms. Such must be viewed with the knowledge that they are subject to continual change and the courts should not attempt to fix their meaning as a matter of law. To my mind, it is an extremely refined abstraction to be guided by the common usage in 1854 for the meaning of the words used in this reservation and for the same purpose to be bound by implied reversals in opinions of this Court announced in 1937.

It will be seen from the foregoing that I am not in agreement with a number of statements in, and inferences to be drawn from, the majority opinion, among which are: that oil and gas were unknown in this area in 1854; that the rule relating to ancient documents is used other than as a rule of evidence; and that there must be a special showing of intention to do so by the parties to the instrument before the courts will apply to the words used in the instrument the meaning which attached to them at the time of their use. I am of opinion that the exact contrary of the rule last stated is well sustained by the decided cases and that if a different meaning from that at the time of submission can be shown by well recognized authority, or by the historic circumstances surrounding the parties at the date of the instrument, the courts, if urged to do so, will take judicial notice of it. In addition, I fear that the wording of the first point in the syllabus may lead to it being misunderstood.

As stated, I agree with the Court's conclusion.