Kevin R. Durbin, Plaintiff Below, Petitioner
McElroy Coal Company, Defendant Below, Respondent
(Marshall County 11-C-219)
Kevin R. Durbin, by counsel Thomas E. White, appeals the
Circuit Court of Marshall County's February 24, 2017,
order granting summary judgment in respondent's favor.
Respondent McElroy Coal Company, by counsel Michelle Lee
Dougherty and Kristen Andrews Wilson, filed a response in
support of the circuit court's order. On appeal,
petitioner argues that the circuit court incorrectly
construed an oil and gas reservation and failed to give
priority to a deed of correction.
Court has considered the parties' briefs and the record
on appeal. The facts and legal arguments are adequately
presented, and the decisional process would not be
significantly aided by oral argument. Upon consideration of
the standard of review, the briefs, and the record presented,
the Court finds no substantial question of law and no
prejudicial error. For these reasons, a memorandum decision
affirming the order of the circuit court is appropriate under
Rule 21 of the Rules of Appellate Procedure.
April 13, 1998, petitioner and his wife conveyed to Robert D.
Dobbs three parcels of land ("Durbin Deed"), each
containing a separate reservation of mineral interests, as
described below in relevant part:
FIRST PARCEL: [Legal description];
containing 58.05 acres, more or less; excepting and reserving
from the operation of this deed all the coal underlying said
parcel together with the necessary mining rights and
privileges as heretofore conveyed;
SECOND PARCEL: [Legal description],
containing one-fourth (1/4) of an acre, more or less; there
is reserved from the operation of this deed all the coal
underlying said parcel together with certain mining rights as
heretofore conveyed, and there is also reserved unto first
party all the oil and gas within and underlying said parcel;
Said First and Second parcels being the same property
conveyed to Kevin R. Durbin by Nancy A. Rush . . . by deed .
. . of record in the office of the Clerk of the County
Commission of Marshall County . . . .
THIRD PARCEL: [Legal description],
containing 4.860 acres, more or less, as surveyed by Charles
V. Eller, County Surveyor, December 5, 1988, and shown on a
plat attached hereto and made a part of this description.
Said Third Parcel being the same property conveyed to Kevin
R. Durbin by Opal Greathouse and Harold Greathouse . . . by
deed . . . and of record in the office of the Clerk of the
County Commission of Marshall County . . . .
There is hereby excepted and reserved from the above
described parcel all of the coal, oil, gas and other minerals
within and underlying the same.
April 23, 1998, Mr. Dobbs conveyed to Edward G. Strope and
Lavonne F. Strope ("Strope Deed") two parcels of
land. The first parcel conveyed was the First Parcel set
forth in the Durbin Deed; however, Mr. Dobbs reserved unto
himself a 0.312-acre portion of the First Parcel. The second
parcel conveyed in the Strope Deed was the Third Parcel
listed in the Durbin Deed. The conveyance of the Third Parcel
concluded with, "Excepting and reserving form [sic] the
operation of this deed all of the coal, oil, gas and other
minerals within and underlying the same." Mr. Dobbs also
reserved unto himself a 0.693-acre tract from the Third
Parcel. Subsequently, in 2005, the Stropes entered into an
oil, gas, and coalbed methane lease with Great Lakes Energy
Partners, L.L.C. that included the First Parcel conveyed in
the Durbin Deed.
January 6, 2006, Mr. Dobbs conveyed to John D. Wells and
Barbara A. Wells two tracts of land. The first tract was from
the First Parcel conveyed in the Durbin Deed, and the second
tract was part of the Second Parcel conveyed in the Durbin
Deed. This deed contained no reservation of minerals.
October 9, 2007, the Stropes conveyed to respondent six
tracts of land, four of which are unrelated to the instant
action. The other two parcels were the Third Parcel from the
Durbin Deed, excluding the .693-acre reservation to Mr.
Dobbs, and the First Parcel from the Durbin Deed, excluding
the .312-acre reservation to Mr. Dobbs. Aside from repeating
the reservations expressed in the prior deeds, this deed made
no express reservation of mineral interests.
than twelve years following the original Durbin Deed, on
October 5, 2010, petitioner and his wife executed a Deed of
Correction that stated it was "for the purpose of
correcting a typographical error in the prior deeds between
the parties, wherein one of the words in the following
paragraph was inadvertently not pluralized in said prior
deed." Namely, petitioner corrected "parcel"
to "parcels" in the reservation clause following
the Third Parcel as follows: "There is hereby excepted
and reserved from the above ...