The Preston County Circuit Court of West Virginia (the ?Court?) was recently charged with determining the ownership of a one-seventh interest in a 225 acre oil and gas tract. The deed purported to convey ?the surface only.? Under the facts and circumstances of the case, the Court held that the oil and gas also passed unto grantee. At issue was the conveyance of:
"one-seventh interest in the surface only with the hereditaments and appurtenances1 thereto belonging, (the coal and mining privileges having been previously sold)."
The deed did not contain an express reservation of oil and gas under the property. The Court held that the one-seventh interest in oil and gas in place passed unto the grantee.
The Court determined that the grantor?s intent could not be discerned within the four corners of the deed, and that the conveyance language was ambiguous, thus, permitting the Court to consider extrinsic evidence of the grantor?s intent.
In the case, the plaintiff and the defendants offered competing interpretations of the legal impact of the conveyance. The plaintiff asserted that the grantor?s intent was to vest all right, title, and interest in the property, including oil and gas, in the plaintiff's predecessor in title. The defendants, of course, asserted that the conveyance was, true to its face, of the ?surface only,? with the grantor effectively reserving a one-seventh interest in the oil and gas underlying the property.
Ultimately, the Court construed the term ?hereditaments and appurtenances? as including the oil and gas within and underlying the property. As such, the Court determined that the grantor?s intent was to vest all right, title, and interest to the oil and gas underlying the property in the plaintiff via his predecessors in interest. Therefore, the defendants? claims of ownership were extinguished.
In making its determination, the Court was persuaded that the grantor and her successors in interest did not act in a manner consistent with an intent to retain an ownership interest in the oil and gas. Neither the grantor, nor her successors, conveyed, devised, leased, or mortgaged their purported interest in the oil and gas; nor did they ensure the interest was properly assessed for real property tax purposes on the Preston County landbooks.
The holding in this case is limited to the facts of the case and provides a view as to how the Circuit Court of Preston County of West Virginia would view similar cases with similar facts. However, it also provides some guidance on the value of extrinsic evidence, or lack thereof: while a court of competent jurisdiction will always be the final arbiter in determining whether a document is ambiguous, landmen, abstractors and title attorneys should locate and analyze all information that is available in the county courthouse including assessment history and leasing history when conducting title examination.
1 ?Hereditament? includes real property; land, Black?s Law Dictionary 743 (8th ed. 2007). ?Appurtenance? is ?something that belongs to or is attached to something else, Black?s Law Dictionary 111 (8th ed. 2007). W.Va. Code ? 36-3-10 (1923) (Repl. Vol. 2005) states ?Every deed conveying land shall, unless an exception be made certain therein, be construed to include all buildings, privileges, and appurtenances of every kind belonging to the land therein embraced.?