Filed: Mar. 30, 2016
Latest Update: Mar. 02, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-1446 JUSTIN D. THOMAS; IRENE S. THOMAS, Plaintiffs – Appellants, v. CARMEUSE LIME & STONE, INCORPORATED; O-N MINERALS (CHEMSTONE) COMPANY, Defendants – Appellees, v. THOMAS M. HELMS, SR., Intervenor/Defendant – Appellee. No. 15-1447 JUSTIN D. THOMAS; IRENE S. THOMAS, Plaintiffs, v. CARMEUSE LIME & STONE, INCORPORATED; O-N MINERALS (CHEMSTONE) COMPANY, Defendants – Appellants, v. THOMAS M. HELMS, SR., Intervenor/Defendant –
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-1446 JUSTIN D. THOMAS; IRENE S. THOMAS, Plaintiffs – Appellants, v. CARMEUSE LIME & STONE, INCORPORATED; O-N MINERALS (CHEMSTONE) COMPANY, Defendants – Appellees, v. THOMAS M. HELMS, SR., Intervenor/Defendant – Appellee. No. 15-1447 JUSTIN D. THOMAS; IRENE S. THOMAS, Plaintiffs, v. CARMEUSE LIME & STONE, INCORPORATED; O-N MINERALS (CHEMSTONE) COMPANY, Defendants – Appellants, v. THOMAS M. HELMS, SR., Intervenor/Defendant – A..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1446
JUSTIN D. THOMAS; IRENE S. THOMAS,
Plaintiffs – Appellants,
v.
CARMEUSE LIME & STONE, INCORPORATED; O-N MINERALS
(CHEMSTONE) COMPANY,
Defendants – Appellees,
v.
THOMAS M. HELMS, SR.,
Intervenor/Defendant – Appellee.
No. 15-1447
JUSTIN D. THOMAS; IRENE S. THOMAS,
Plaintiffs,
v.
CARMEUSE LIME & STONE, INCORPORATED; O-N MINERALS
(CHEMSTONE) COMPANY,
Defendants – Appellants,
v.
THOMAS M. HELMS, SR.,
Intervenor/Defendant – Appellee.
Appeals from the United States District Court for the Western
District of Virginia, at Roanoke. Glen E. Conrad, Chief
District Judge. (7:12-cv-00413-GEC)
Argued: January 27, 2016 Decided: March 30, 2016
Before DUNCAN and DIAZ, Circuit Judges, and Loretta C. BIGGS,
United States District Judge for the Middle District of North
Carolina, sitting by designation.
Vacated in part and affirmed in part by unpublished opinion.
Judge Duncan wrote the opinion, in which Judge Diaz and Judge
Biggs joined.
ARGUED: Jeffery Scott Sexton, Scott Andrew Stephenson, GENTRY
LOCKE, Roanoke, Virginia, for Appellants. Robert Cameron Hagan,
Jr., Fincastle, Virginia, for Intervenor/Appellee. Thomas Moore
Lawson, LAWSON & SILEK, P.L.C., Winchester, Virginia, for
Appellees/Cross-Appellants. ON BRIEF: Joshua E. Hummer, LAWSON
& SILEK, P.L.C., Winchester, Virginia, for Appellees/Cross-
Appellants.
Unpublished opinions are not binding precedent in this circuit.
2
DUNCAN, Circuit Judge:
This appeal involves a trilateral dispute over
approximately 150 acres of limestone-rich land in Botetourt
County, Virginia (“the Property”). Plaintiffs-Appellants Justin
and Irene Thomas own the surface rights to the Property.
Defendants-Appellees Carmeuse Lime & Stone, Inc. (“Carmeuse”)
and Thomas M. Helms share ownership of the Property’s mineral
estate. 1 The Thomases disagree with Carmeuse and Helms about the
extent of their mineral rights and about the extent to which
Carmeuse and Helms may disturb the Property’s surface in order
to extract the stone underneath. Carmeuse and Helms disagree
with each other about what portion of the mineral estate each of
them owns.
In ruling on the parties’ cross-motions for summary
judgment, the district court decided four specific issues that
are before us on appeal. First, the district court declared
unenforceable a restriction in an 1849 deed that purports to
prohibit the owners of the Property’s mineral estate from
quarrying in the vicinity of a historic house and yard on the
Property (the so-called “Yard Restriction”). Second, the
1Title to Carmeuse’s portion of the mineral estate is
actually held by Carmeuse’s wholly owned subsidiary, O-N
Minerals (Chemstone) Co., which is also a Defendant–Appellee. We
use the term “Carmeuse” to refer collectively to both Carmeuse
Lime & Stone, Inc. and O-N Minerals (Chemstone) Co., as well as
Carmeuse’s predecessor corporations.
3
district court held that Carmeuse and Helms are entitled to use
modern quarrying techniques to extract minerals from the
Property. Third, the district court held that the mineral
estate owned by Carmeuse and Helms includes all of the stone on
the Property, rejecting the Thomases’ contention that Carmeuse
and Helms own only a particular vein of limestone that runs
through the Property’s southwestern portion. Fourth, the
district court determined how ownership of the Property’s
mineral estate is divided between Carmeuse and Helms.
For the reasons stated below, we vacate the district
court’s holding that the Yard Restriction is unenforceable, and
affirm as to the remaining issues.
I.
The Thomases purchased the Property’s surface estate in
2002. At the time, Carmeuse already owned and operated a
limestone quarry across the road from the Property. In their
pre-purchase investigation, the Thomases discovered that
Carmeuse also owned some portion of the Property’s mineral
estate, but were told by Carmeuse that it had no immediate plans
to do any quarrying on the Property.
An eighteenth-century stone house sits on the northwestern
portion of the Property. The Thomases initially intended to
renovate the house so that they could use it as their primary
4
residence. That plan never came to fruition, partly because the
Thomases were unable to overcome opposition from Carmeuse to
their efforts to have the property rezoned as residential, and
partly because, in 2007, the family moved to North Carolina so
that Justin Thomas could take a job there. Currently, the
Thomases use the Property and the stone house for recreational
purposes.
During the decade after the Thomases purchased the
Property’s surface estate, Carmeuse’s plans for the Property
evolved, and by 2012, Carmeuse had begun preparing to extract
the limestone it owned on the Property. Upon learning of
Carmeuse’s intentions, the Thomases initiated this lawsuit,
seeking several declaratory judgments to clarify the nature of
Carmeuse’s rights to the Property. Although the Thomases
initially sued only Carmeuse, Helms intervened to protect his
interest in the Property’s mineral estate.
II.
The parties’ disputes center on how to interpret deed
language from three transactions in the history of the
Property’s ownership: (1) the initial severance of the
Property’s mineral estate from its surface estate in 1849,
(2) the mineral estate’s sale at public auction in 1901 and
1902, and (3) the conveyances of the mineral estate to its
5
current owners, Helms and Carmeuse, in 1992. In this section,
for each of those three transactions, we set out the specific
language over which the parties disagree, explain the parties’
disagreements, and discuss the district court’s resolution of
each.
A.
We discuss first the initial severance of the Property’s
mineral estate from its surface estate in 1849. Before 1849,
Greenville B.W. Reynolds owned both mineral and surface rights
to a large, contiguous swath of land, of which the Property was
a part. In 1849, Reynolds granted to James S. Wilson full
rights (surface and mineral) to much of that land. But as to
one 200-acre tract (“the Reynolds Tract”), Reynolds retained the
surface estate for himself, conveying only the mineral estate to
Wilson. The 200-acre Reynolds Tract is essentially the same
piece of land as the 150-acre Property; it simply includes an
additional 50 acres for which the surface estate was split off
at some point before the Thomases purchased the Property’s
surface estate in 2002. Carmeuse and Helms are the present
owners of the mineral estate underlying the entire Reynolds
Tract.
The 1849 deed memorializing the Reynolds–Wilson transaction
described the mineral estate conveyed to Wilson as containing
“all the stone or rock of every kind, and particularly all
6
limestone, or quarries of limestone, or other kind of stone, in
and upon every portion” of the Reynolds Tract. J.A. 244. So
that Wilson could access that mineral estate, the 1849 deed
further granted him “the privilege . . . of free ingress,
egress, and regress, at all times, to enter and quarry, and take
the [stone] away, or to construct kilns and burn the same into
lime” on the Reynolds Tract. Id.
The 1849 deed qualified these broad mineral and access
rights, however, through several other provisions meant to
protect the interests of Reynolds and his heirs in the surface
estate. One of those provisions was what the parties have
referred to as the “Yard Restriction,” which reads as follows:
[I]t is also agreed and understood between the parties
that the said Wilson, his heirs or assigns, is not to
blast, or quarry, or take away, any stone within the
enclosure of the yard attached to the said Reynolds’
present dwelling house; this provision is inserted to
protect the family of the said Reynolds, and of his
heirs or assigns, or other persons who may be in the
occupancy of the house, from annoyance.
J.A. 240. It is unclear whether the stone house that currently
sits on the Property is the “dwelling house” referred to in the
Yard Restriction. It is also unclear how large “the enclosure
of the yard attached to” the house was in 1849.
The parties have presented two disputes associated with the
1849 severance deed. First, the parties disagree about the
validity of the Yard Restriction. Carmeuse contends that the
7
Yard Restriction is invalid because it irreconcilably conflicts
with the 1849 deed’s grant of “all the stone or rock of every
kind” underlying the Property, and because the Thomases’ current
inability to use the Property for residential purposes renders
the Yard Restriction obsolete. The Thomases disagree, arguing
that the Yard Restriction is valid and prohibits Carmeuse from
quarrying in the vicinity of the stone house that currently sits
on the Property. The district court agreed with Carmeuse, and
declared that the Yard Restriction “is not a valid restriction
applicable to the surface estate owned by [the Thomases] and
against the mineral estate owners and that the owners of the
stone and quarrying rights are not prohibited from disturbing
the surface of [the Property], even including within the
enclosure of the yard.” 2 J.A. 1774.
Second, the parties disagree about the extent to which the
1849 deed limits what techniques Carmeuse and Helms may use to
extract the minerals they own today. The Thomases contend that
the parties to the 1849 deed would not have contemplated the
destructiveness of modern limestone techniques, and that
Carmeuse and Helms should therefore be barred from using them.
2Because the district court declared the Yard Restriction
invalid, it did not address the parties’ factual disputes
concerning the size of the yard and whether the stone house
currently on the Property is the “dwelling house” referred to in
the Yard Restriction.
8
Carmeuse and Helms argue that the 1849 deed does not limit their
use of modern quarrying techniques. The district court agreed
with Carmeuse and Helms, and declared that they “may use modern
quarrying techniques” to extract the minerals they own.
J.A. 1775.
B.
We next explain the parties’ dispute associated with the
sale of the mineral estate underlying the Reynolds Tract at
public auction in 1901 and 1902. After the death of James S.
Wilson, the grantee in the 1849 deed, several of Wilson’s heirs
filed suit to have his estate sold and distributed. Thus, the
Botetourt County Chancery Court divided Wilson’s land holdings
into two parcels and sold them by public auction. The mineral
estate underlying the Reynolds Tract was split between the two
parcels, each of which also contained full rights to portions of
the adjacent land that Wilson had also owned. A single group of
Wilson’s heirs bought both parcels, but the parcels were
conveyed in separate deeds.
The first parcel was conveyed to the group of heirs through
a deed dated December 23, 1901. This 1901 deed described the
mineral rights it conveyed as follows:
the right to all the limestone on the land of the late
G.B.W. Reynolds [i.e., the Reynolds Tract] . . . and
along the vein of grey limestone, on said Reynolds
lands extending in a South-Westerly direction, to a
line three hundred feet from [the Reynolds Tract’s
9
southwestern boundary]; together wi[th] all the rights
of ingress, egress, and regress, and all the
privileges and rights of quarrying, and using, and
burning, and removing the stone on [the Reynolds
Tract], accorded said John S. Wilson in [the 1849
deed].
J.A. 441–42. Thus, the 1901 deed conveyed mineral rights
underlying the entire Reynolds Tract, except for a 300-foot
strip along the tract’s southwestern boundary.
The mineral rights to that 300-foot strip were included in
the second parcel, which was conveyed through a deed dated
July 26, 1902. That 1902 deed described the relevant mineral
rights as follows:
all the stone on [the Reynolds Tract], from line of
[the parcel conveyed through the 1901 deed], . . .
thence South West to [the Reynolds Tract’s
southwestern boundary]; together with all rights of
ingress, egress and regress to said lands, and all
other rights and appurtenances, as to quarrying, and
burning said stone, and all other rights as to said
stone, and said land, . . . which rights, were
conveyed to said John S. Wilson by G.B.W. Reynolds in
[the 1849 deed].
J.A. 445.
The parties dispute precisely what mineral rights were
conveyed through the 1901 and 1902 deeds. Because Helms and
Carmeuse trace their titles to the 1901 and 1902 deeds, they can
own no more today than was conveyed through those deeds. The
Thomases contend that the deeds conveyed an interest only in
“the vein of grey limestone” referred to in the 1901 deed, and
that ownership of the remaining stone on the Reynolds Tract
10
therefore reverted to the surface-estate owners. Carmeuse and
Helms, in contrast, contend that the 1901 and 1902 deeds
conveyed an interest in all the stone underlying the Reynolds
Tract, and that therefore they own all the stone underlying the
Reynolds Tract today. The district court agreed with Carmeuse
and Helms, and declared that “the 1901 and 1902 Deeds
collectively conveyed the entirety of the mineral estate
originally conveyed by the 1849 Deed, and that Carmeuse and
Helms own all of the stone and quarrying rights granted by the
1849 Deed.” J.A. 1775.
C.
We turn now to the 1992 conveyances of the mineral estate
to its current owners. Sometime after 1902, Wilson’s heirs had
recombined the two parcels they had purchased at public auction
and sold them to the Wilson Lime Company. See J.A. 1250–51.
Wilson Lime Company held that property until 1992, when it
conveyed part of it to Carmeuse and part of it to Helms.
Wilson Lime Company’s conveyance to Carmeuse was
memorialized in what the parties have referred to as the “1992
James River Deed.” That deed conveyed full rights to a 316-acre
tract that it described as being the same property that had been
conveyed through the 1901 deed. J.A. 247-48. Additionally, in
a separate provision, the deed conveyed
11
all of the mineral rights including all rights and
privileges necessary to quarry and remove the stone,
on half the veins of limestone on [the Reynolds Tract]
. . . said half to be measured along the veins of
limestone from the [Reynolds Tract’s northeastern
boundary] in a southwesterly direction; said stone
rights to include the use of any water rights [Wilson
Lime Company] may have, or be entitled to in [the
Property].
J.A. 248–49.
Wilson Lime Company’s conveyance to Helms was memorialized
in what the parties have referred to as the “1992 Helms Deed.”
The 1992 Helms Deed did not specifically mention any mineral
estate in its description of the property conveyed; the
description focused on the adjacent land for which the full
estate was conveyed. The deed did, however, state that “[i]t is
the purpose of this Deed to convey all of the property in this
area owned by Wilson Lime Company, Inc., not previously conveyed
by [the 1992 James River Deed].” J.A. 481. The parties agree
that that statement of purpose was sufficient to convey to Helms
whatever mineral rights underlying the Reynolds Tract Carmeuse
did not already own.
These deeds are the source of the dispute between Helms and
Carmeuse about how the mineral estate underlying the Property is
divided between them. Carmeuse contends that, because the 1992
James River Deed refers to the 1901 deed, it conveyed the same
mineral rights as were included in the 1901 deed; that is,
mineral rights to the entire Reynolds Tract, except those
12
underlying a 300-foot strip along the southwestern property
line, and that Helms owns mineral rights only to that 300-foot
strip. Helms, in contrast, contends that the 1992 James River
Deed’s reference to “half the veins of limestone” on the
Reynolds Tract means that the mineral rights underlying the
Reynolds Tract are split evenly between he and Carmeuse. The
district court agreed with Helms, declaring that “Carmeuse and
Helms each own an equal one-half portion of the veins of
limestone” on the Reynolds Tract, “with Carmeuse’s half to begin
at the northern boundary of [the Reynolds Tract], and measured
along the veins of limestone in a southwesterly direction.”
J.A. 1775.
III.
The Thomases appealed three of the district court’s
rulings, namely (1) that the 1849 deed’s Yard Restriction is
invalid, (2) that Carmeuse and Helms are entitled to use modern
quarrying technology on the Property, and (3) that Carmeuse and
Helms together own all of the stone underlying the Property, not
just a particular vein of limestone. Carmeuse appealed the
district court’s ruling that Helms owns half of the mineral
estate underlying the Reynolds Tract, not just a 300-foot strip
along the tract’s southwestern border.
13
This court reviews de novo a district court’s disposition
of motions for summary judgment. Calderon v. GEICO Gen. Ins.
Co., 809 F.3d 111, 120 (4th Cir. 2015). “Summary judgment is
appropriate ‘if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.’”
Id. (quoting Fed. R. Civ. P.
56(a)). Because our jurisdiction rests in diversity, we apply
Virginia substantive law. See, e.g., Liberty Univ., Inc. v.
Citizens Ins. Co. of Am.,
792 F.3d 520, 528 (4th Cir. 2015).
Below, we address each of the four issues decided by the
district court in turn.
A.
We address first the district court’s declaration that the
Yard Restriction does not bar Carmeuse from quarrying in the
vicinity of the old stone house on the Property. The district
court provided two justifications for that conclusion, both of
which Carmeuse advances on appeal. First, the district court
reasoned that the Yard Restriction was void under the doctrine
of repugnancy because “the granting clause expresses that Wilson
would own all the stone, which includes the stone within the
enclosure of the yard, but the Yard Restriction suggests that he
14
could not quarry there.” 3 J.A. 1756. Second, it reasoned that
“even if the Yard Restriction was not void from the outset”
under the doctrine of repugnancy, “it is no longer a valid,
enforceable reservation” because “no one occupies or has
occupied the house for some time.” J.A. 1757 (footnotes
omitted). We disagree with Carmeuse and the district court on
both counts.
In interpreting a deed, we are to give effect “to every
part of the instrument, if possible,” and we are to interpret
the deed’s terms “to harmonize them, if possible, so as to give
effect to the intent of the parties.” CNX Gas Co. LLC v.
Rasnake, 752 S.E.2d 865, 868 (Va. 2014) (en banc). Such
harmonization, however, may not always be possible. Thus, under
the doctrine of repugnancy, “where there is an irreconcilable
conflict between the granting clause and other parts of the
deed, and it is impossible to discover with reasonable certainty
the intention of the parties, . . . the granting clause
prevails.” Goodson v. Capehart,
349 S.E.2d 130, 133 (Va. 1986).
Goodson provides an example of what Virginia courts
consider to be an irreconcilable conflict between deed
provisions. In that case, the Supreme Court of Virginia
3Limestone can be accessed only by quarrying, and it is
impossible to quarry without disturbing the surface. Thus, if
one is unable to disturb the surface in a particular area, one
is unable to access the limestone in that area.
15
considered a deed whose granting clause provided for a fee
simple estate in the property at issue, but whose preamble said
the grantee was receiving only a life estate. 349 S.E.2d
at 131–32. Those two provisions could not both be true: the
grantee could have received either a fee simple estate or a life
estate, but not both. Because of this irreconcilable conflict,
under the rule of repugnancy, the granting clause prevailed.
Id. at 133–34.
Here, the statement in the 1849 deed’s granting clause that
Wilson would own “all the stone or rock of every kind” does not
irreconcilably conflict with the Yard Restriction’s prohibition
on quarrying within the historic Reynolds dwelling house’s yard.
Unlike the provisions at issue in Goodson, the 1849 deed’s
granting clause and the Yard Restriction can both be true: it is
a commonplace in property law for a person to hold formal title
to property yet be unable to use some portion of it in his or
her preferred manner, whether because of a deed restriction,
government regulation, or some other reason. See, e.g., Yukon
Pocahontas Coal Co. v. Ratliff, 24 S.E.2d 559, 563 (Va. 1943)
(enforcing deed restrictions that prevented a mineral-estate
owner from accessing certain parts of that estate). Thus, the
Yard Restriction is not void under the doctrine of repugnancy.
Nor is the Yard Restriction void simply because the house
on the Property is not currently being used as a residence. The
16
operative language of the Yard Restriction prohibits the
mineral-estate owner from “blast[ing], quarry[ing], or tak[ing]
away, any stone within the enclosure of the yard.” J.A. 240.
Nothing in that language suggests that the parties intended for
the Yard Restriction’s protections to be conditional upon the
house being used as a residence. 4 Moreover, it makes little
sense to suggest that temporary conditions such as the
Property’s current zoning or the Thomas’s current need to live
out of state for career-related reasons could permanently
deprive them of the rights to which they were entitled when they
purchased the Property’s surface estate.
The district court suggested that its decision to
permanently void the Yard Restriction based on the nature of the
Thomases’ current use of the Property was “buttressed by the
case of Bradley v. Va. Ry. & Power Co., 87 S.E. 721 (Va. 1916),”
J.A. 1758, and Carmeuse cites Bradley again on appeal. But
Bradley is inapposite. That case involved a dispute between
Virginia Railway & Power Company, which owned a 106-acre tract
4The 1849 deed does mention occupancy of the house when it
justifies the Yard Restriction, explaining that it was “inserted
to protect the family of the said Reynolds, and of his heirs or
assigns, or other persons who may be in the occupancy of the
house, from annoyance.” J.A. 240. But even if this language
were interpreted to affect the substantive scope of the Yard
Restriction, it evinces an intent to protect the families of
Reynolds’s heirs and assigns regardless of whether they occupy
the house; the only group for whom it requires occupancy are
“other persons.”
17
near Richmond, and Bradley, who claimed to own a fee-simple
interest in a 1/4-acre lot within the Railway’s larger tract,
and sought to “erect a building on the lot for business
purposes.” 87 S.E. at 721. Bradley traced that purported fee-
simple interest to an 1867 deed in which the grantor included a
provision “reserving the family burying ground and also the
servants’ burying ground, each to contain one-eighth of an acre,
with the right of free ingress and egress to and from the same.”
Id. The court held that this provision was not intended to
retain fee-simple title to the 1/4-acre burial grounds such that
Bradley could use that land for whatever purpose he wanted, but
rather was intended “as a reservation of one-fourth of an acre
for burial purposes and none other, for the use of the grantor’s
family.”
Id. at 723. Thus, Bradley had no right to use the
1/4-acre lot for his business purposes.
Bradley would help Carmeuse if it had held that the 1/4-
acre lot could no longer even be used as a family graveyard.
But that is not what the Bradley court did; it simply held that
having the right to use that lot as a graveyard was not the same
as having the right to use it to operate a business. Here, the
Thomases do not seek to assert a new right outside the scope of
the Yard Restriction; they seek only to enforce the protection
the Yard Restriction has provided to the owners of the
Property’s surface estate since 1849.
18
The 1849 deed granted Wilson the full mineral estate
underlying the Reynolds Tract, but the Yard Restriction
prohibited the destruction of the portion of that tract on which
Reynolds’s dwelling house sat. The Yard Restriction is not void
under the doctrine of repugnancy, nor is it void because the
Thomases do not currently use the house on the Property as their
residence. Thus, we vacate the district court’s declaration
that the Yard Restriction is invalid. 5
B.
We address next the district court’s declaration that
Carmeuse and Helms are entitled to use modern quarrying
techniques to access the mineral estate underlying the Property.
The Thomases contend that the parties to the 1849 severance deed
would not have contemplated that the mineral-estate owner would
use such techniques, which the Thomases contend are more
destructive to the surface than the quarrying techniques
available in 1849 would have been.
Under Virginia law, the owner of a mineral estate “may
occupy so much of the surface, adopt such machinery and modes of
mining and establish such auxiliary appliances as are ordinarily
5It remains unclear whether the stone house that currently
sits on the Property is actually the historic Reynolds dwelling
house, and if it is, what area around the house is within the
historic “yard.” But those are factual issues that the district
court did not address at the summary judgment stage, and that we
therefore do not address today.
19
used,” and “is not limited . . . to such appliances as were in
existence when the grant was made, but may keep pace with the
progress of society and modern inventions.” Oakwood Smokeless
Coal Corp. v. Meadows, 34 S.E.2d 392, 395 (Va. 1945) (citation
omitted). This common-sense authority to improve mineral-
extraction operations as technology develops, however, “does not
authorize enlargement of the estate granted” to a mineral-estate
owner. Phipps v. Leftwich,
222 S.E.2d 536, 541 (Va. 1976). For
example, in Phipps, the Supreme Court of Virginia held that the
owner of the relevant property’s mineral estate could not engage
in surface mining of coal on the property because “the parties
to the 1902 deed” that granted the mineral estate had
“contemplated only underground mining of coal,” which leaves the
surface intact.
Id. at 715.
The Thomases contend that Phipps controls this case--that
just as the mineral-estate owner in that case was prohibited
from engaging in surface mining when the parties had
contemplated only underground mining, Carmeuse should be
prohibited from engaging in modern quarrying on the Property
because the parties to the 1849 deed contemplated only the sort
of quarrying techniques practiced at that time. But Phipps
involved a difference in kind between the rights granted to the
mineral-estate owner (the right to develop underground coal
mines), and the activity in which the mineral-estate owner
20
sought to engage (the right to surface-mine coal). Here, there
is no such difference in kind. The 1849 deed granted the
Property’s mineral-estate owners the right to extract stone
through quarrying, and that is exactly what the Property’s
mineral estate owners seek to do today. And Virginia law is
clear that they are entitled to employ modern technology to do
so. 6 Accordingly, we affirm the district court’s declaration
that Carmeuse and Helms are entitled to use modern quarrying
techniques to extract the minerals they own. 7
C.
We turn now to the district court’s declaration that “the
1901 and 1902 Deeds collectively conveyed the entirety of the
mineral estate originally conveyed by the 1849 Deed, and that
Carmeuse and Helms own all of the stone and quarrying rights
granted by the 1849 Deed.” J.A. 1775. The Thomases contend
that the 1901 and 1902 deeds actually conveyed only the vein of
limestone running across the Property’s southwestern portion,
and that that is therefore all Carmeuse and Helms can own today.
6
Notably, it is not even clear that modern quarrying
techniques will be more disruptive than those available in 1849.
Carmeuse presented evidence below suggesting that, although
modern techniques involve a larger physical footprint, they also
involve less environmental damage and fewer safety risks. See
J.A. 499–501.
7
Of course, in doing so, Carmeuse and Helms will be bound
by the terms of the 1849 deed, including the Yard Restriction.
21
Under Virginia law, “[w]here the language of a deed clearly
and unambiguously expresses the intention of the parties, no
rules of construction should be used to defeat that intention.
Where, however, the language is obscure and doubtful, it is
frequently helpful to consider the surrounding circumstances and
probable motives of the parties.” Rasnake, 752 S.E.2d at 867.
Further, “[w]here language in a deed is ambiguous, the language
must be construed against the grantor and in favor of the
grantee.”
Id. In other words, “[a] grantor must be considered
to have intended to convey all that the language he has employed
is capable of passing to his grantee.”
Id.
The 1902 deed is straightforward. It expressly conveys
“all the stone” on the portion of the Property to which it
applies, not just the limestone. J.A. 445. Thus, we think it
clear that, as to the 300-foot strip of the Property that was
included in the 1902 Parcel, the mineral estate that exists
today includes all stone, and not just limestone.
The 1901 deed is less clear, because it uses both the
specific term “limestone” and the generic term “stone.”
J.A. 441-42. Nonetheless, we think it clear from the
“surrounding circumstances and probable motives of the parties,”
Rasnake, 752 S.E.2d at 867, that the 1901 deed conveyed the
entire mineral estate.
22
Wilson’s property was being offered at a public auction
because, after Wilson’s heirs could not decide how to divide his
property among themselves, several of them filed suit in
Botetourt County’s chancery court demanding that Wilson’s
property be sold and the proceeds distributed. Thus, as the
district court pointed out, adopting the Thomases’ proposed
interpretation “would require the court to accept that the
persons tasked with dividing the entirety of Wilson’s property
upon his death--including the special commissioners and the
chancery court charged with overseeing and approving that
process--actually conveyed less than all of that estate, in
abrogation of their duties.” J.A. 1764.
The documents associated with the chancery court’s offering
of Wilson’s land provide no support for such an interpretation.
In its announcement of the auction at which Wilson’s property
was sold, the chancery court described the property that would
be conveyed in the 1901 deed as including “the stone rights” on
the one portion of the Property, and described the property that
would be conveyed in the 1902 deed as including “all the stone
and mineral rights” on the other portion of the Property.
J.A. 429. Moreover, to the extent any doubt remains, we are
obligated to resolve that doubt in favor of the grantee.
Rasnake, 752 S.E.2d at 867. Thus, we conclude that the 1901 and
1902 deeds together conveyed the entire mineral estate that
23
James S. Wilson had owned--that is to say, “all the stone”
underlying the Property. Because Carmeuse and Helms trace their
interests in the Property to those 1901 and 1902 deeds, we
affirm the district court’s declaration that they collectively
own “all the stone” underlying the Property.
D.
Finally, we address the district court’s division of the
mineral estate underlying the Reynolds Tract between Carmeuse
and Helms. The district court declared that “Carmeuse and Helms
each own an equal one-half portion of the veins of limestone” on
the Reynolds Tract, “with Carmeuse’s half to begin at the
northern boundary of [the Reynolds Tract], and measured along
the veins of limestone in a southwesterly direction.”
J.A. 1775.
Carmeuse contends that it owns more than half of the
mineral estate underlying the Reynolds Tract, despite the 1992
James River Deed’s conveyance to it of only “half the veins of
limestone” on the Reynolds Tract. J.A. 249. Specifically, it
contends that it owns the same portion of the mineral estate
underlying the entire tract, except for a 300-foot strip along
the tract’s southwestern border--that is, the portion of the
mineral estate that was conveyed in the 1901 deed. For this
proposition, it relies entirely on the 1992 James River Deed’s
statement that the 316-acre tract to which Carmeuse received
24
full rights (surface and mineral) was the same property that was
conveyed in the 1901 deed. See J.A. 248.
Carmeuse’s argument is not persuasive. When a deed’s
“language is explicit and the intention thereby is free from
doubt, such intention is controlling.” Irby v. Roberts, 504
S.E.2d 841, 843 (Va. 1998) (citation omitted). The 1992 James
River Deed clearly stated that the mineral rights being granted
were “on half the veins of limestone” on the Reynolds Tract, and
specified how to determine the boundaries of that half.
J.A. 249. The 1992 James River Deed’s reference to the 1901
deed does not create any ambiguity. That reference comes in an
entirely separate part of the deed from the portion that conveys
mineral rights, making clear that it applies only to the
property to which Carmeuse received full rights, not to the
property to which it received solely mineral rights. The
portion of the 1992 James River Deed that conveys mineral rights
to Carmeuse makes clear that Carmeuse owns mineral rights
associated with “half the veins of limestone” on the Reynolds
Tract. Thus, we affirm the district court’s holding that
ownership of the Property’s mineral estate is evenly split
between Carmeuse and Helms.
25
IV.
For the reasons stated above, we vacate the district
court’s holding that the Yard Restriction is unenforceable, and
affirm as to the remaining issues.
VACATED IN PART AND AFFIRMED IN PART
26
