Steptoe & Johnson PLLC: West Virginia Supreme Court Clarifies Meaning of 'Surface' Deeds

Steptoe & Johnson PLLC: West Virginia Supreme Court Clarifies Meaning of 'Surface' Deeds

By Ryan J. Morgan

Yesterday the West Virginia Supreme Court of Appeals, in Faith United Methodist Church v. Morgan, No. 12-0080, 2013 W. Va. LEXIS 691 (June 13, 2013) [enhanced version available to subscribers] issued an important opinion for title practitioners clarifying the meaning and proper construction of the term "surface" when used in a deed, especially important when the grantor owns both surface and subsurface minerals.

Here, the Court held that a 1907 deed granting "surface only" in a 225-acre tract of land expressed clear intent, that the term had a definite and certain meaning, and that the grantor did not intend to convey any interest in the oil and gas.

As stated in the syllabus points of the opinion, "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, or construction footings)."

The Court's holding makes clear that when a conveyance purports to transfer title to the "surface" or "surface only," unless there is an ambiguity created by other provisions within the deed, such an instrument shall not be construed to convey any interest in the mineral estate, including most commonly the coal, oil, and gas.

This case explicitly overruled the Court's much-criticized former opinion Ramage v. South Penn Oil Co., 94 W.Va. 81, 118 S.E. 162 (1923) [enhanced version], which had held that the term "surface" was inherently ambiguous, a position without support in other jurisdictions, and one which needlessly injected uncertainty into numerous chains of title and invited litigation.  In so doing the Court embraced its earlier opinion Williams v. South Penn Oil Co., 52 W.Va. 181, 43 S.E. 214 (1902) [enhanced version] and brought West Virginia back in line with the prevailing jurisprudence in the country.

Ryan J. Morgan concentrates his practice in the areas of energy, coal, oil, and gas with extensive experience in representing upstream E&P companies in transactional, regulatory and title matters.

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