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Durbin v. McElroy Coal Company

Supreme Court of West Virginia

April 9, 2018

Kevin R. Durbin, Plaintiff Below, Petitioner
v.
McElroy Coal Company, Defendant Below, Respondent

          (Marshall County 11-C-219)

          MEMORANDUM DECISION

         Petitioner 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.

         This 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.

         On 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.

         On 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.

         On 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.

         On 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.

         More 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 ...


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