Supreme Court overrules 1923 case, defines 'surface'

CHARLESTON – The state Supreme Court declared that the term “surface” has a “definite and certain meaning” when used in land conveyance, overruling a 1923 case that had ruled the term was “presumptively ambiguous.”

On June 13, the court reversed and remanded Faith United Methodist Church and Cemetery of Terra Alta, West Virginia et al. v. Marvin Morgan back to the Circuit Court of Preston County. The unanimous opinion of the court was delivered by Justice Menis E. Ketchum.

“The dispute revolves around the interpretation of a 1907 deed between two siblings,” the opinion begins.

Seven children inherited a 1/7 interest each in a 225-acre tract in Preston County in 1893. By 1902, Walter Forman acquired the interests of five of his siblings while sister Florence retained her 1/7 interest. They conveyed by deed “all of the coal upon and under” the tract to two other individuals in 1902. There was no mention in the deed of any other minerals, including oil and gas.

In 1907, Florence executed a deed conveying her 1/7 interest in “the surface only” of the tract to Walter. This deed noted that the coal and mining privileges had already been sold. Over the years, the now consolidated tract was conveyed several times and in 1967, Marvin D. Morgan purchased the 225-acre tract.

Florence Forman had died intestate in 1930 and two churches, Faith United Methodist Church and Trinity Methodist Church, were successors to Florence Forman. The churches contended that Florence had conveyed “the surface only” of her 1/7 interest in the tract to her brother and they now owned a portion of that 1/7 interest in the oil and gas under the tract.

Morgan filed a declaratory judgment action in the circuit court to settle the matter in February 2011. After hearing from two witnesses who testified that Florence Forman had not mentioned any oil and gas rights after the conveyance in 1907 and that there had been no tax assessments showing the severance of the oil or gas rights, the circuit court ruled in favor of Morgan finding that he “is the successor in title to Walter Forman and presently owns one hundred percent of the oil and gas underlying” the tract.

The circuit court declared that the term “the surface only” in the 1907 deed was ambiguous, relying on the state Supreme Court holding in 1923's Ramage v. South Penn Oil Co. In Ramage, the court held that the term “surface” in a deed is “always ambiguous.” This interpretation allowed courts to look at other evidence surrounding a transaction to determine the intent of the parties.

Since Florence Forman never demonstrated her intent to retain an ownership interest in the tract after 1907, the circuit court determined that she must have intended to convey her entire 1/7 interest in the property, including the oil and gas, to her brother Walter. Resultantly, the circuit court found that Marvin Morgan now had those same rights, less the coal rights which had been conveyed in 1902.

Florence Forman’s successors, the two Churches, appealed to the state’s highest court to reverse the circuit court’s ruling.

“The legal question at the heart of this case is simple: is every deed of the ‘surface’ presumed to be ambiguous and open to interpretation using extrinsic evidence to contradict, alter or add to the deed’s language? Or does the term ‘surface’ have some definite, certain meaning that the average person can rely upon?” Ketchum wrote.

“The circuit court directly relied upon Ramage, and found Florence Forman’s 1907 deed of ‘the surface only’ was ambiguous. Based upon the arguments of the parties, the overarching question is this: Is Ramage a correct statement of the law?

“We believe that Ramage injected uncertainty and confusion into our law of land titles. The decision was soundly criticized by two dissenting members of the Court when the decision was issued.

“Its reasoning has been thoroughly dissected in three law review articles. Ramage has never been applied by this Court, only distinguished or ignored. And the decision has been rejected by other jurisdictions.

“In a review of our case law, we have found three instances where this Court was asked to directly interpret a deed involving the term ‘surface.’ In each of those three cases, this Court failed to follow or apply Syllabus Point 1 of Ramage. In two cases, Ramage was distinguished; in the third and most recent, it was outright ignored.

“As should now be obvious, Syllabus Point 1 of Ramage is not sound law because it violates two fundamental public policies. First, in drafting deeds or other instruments of conveyance, courts and practitioners want terms with definite meanings. By assuming that the term ‘surface’ has no concrete meaning, Ramage has made the drafting of deeds, wills and other instruments of conveyance much more complex.

“Second, courts want to reach a result which the parties intended, and therefore attempt to confine themselves to the four corners of the document to divine the parties’ intent. Ramage violates this fundamental policy by requiring a court to turn back the clock and go beyond the document to discern the parties’ intent from parol and other extrinsic evidence.

“We hold that the word ‘surface,’ when used in an instrument of conveyance, generally means the exposed area of land, improvements on the land, and any part of the underground actually used by a surface owner as an adjunct to surface use (for example, medium for the roots of growing plants, groundwater, water wells, roads, basements, basements, or footings). Because Syllabus Point 1 of Ramage holds otherwise, it is expressly overruled.”

Having dispatched with the Ramage ruling, the court then turned to the case at hand.

“We conclude that the circuit court erred in finding that the 1907 deed was ambiguous. The deed clearly conveyed from Florence Forman to Walter Forman her share of ‘the surface only’ to the 225 acre tract, and reserved to Ms. Forman the remainder of the tract. Accordingly, as the successors to Florence Forman, the petitioners are owners of a portion of her 1/7 interest in the minerals (other than coal) underlying the tract.

“The circuit court’s November 9, 2011, order is reversed, and the case is remanded to the circuit court for any further necessary proceedings. Reversed and remanded.”