PRESENT: Lemons, Goodwyn, Millette, Mims, and Powell, JJ., and
Russell and Koontz, S.JJ.

CNX GAS COMPANY LLC
                                              OPINION BY
v.   Record No. 130306            SENIOR JUSTICE CHARLES S. RUSSELL
                                           January 10, 2014
JAMES RASNAKE, ET AL.

               FROM THE CIRCUIT COURT OF RUSSELL COUNTY
                        Michael L. Moore, Judge

        This appeal turns upon the interpretation of the language

used by the grantor in a deed of bargain and sale.

                         Facts and Proceedings

        The essential facts are undisputed.   In 1887, Jacob Fuller

and Mary Fuller, husband and wife, were the owners of a tract of

land in Russell County containing 414 1/8 acres.     By deed dated

February 14 of that year, they conveyed "all the coal, in, upon,

or underlying" the 414-acre tract, as well as the appurtenant

timber interests and privileges, to Joseph J. Doran and W. A.

Dick.    No other interests in the 414-acre tract were conveyed

until 1918.

        By deed dated May 23, 1918, W. T. Fuller, the successor in

interest to Jacob and Mary Fuller, conveyed to Unice Nuckles a

75-acre portion of the 414-acre tract.     That deed is the subject

of this controversy.     It provides in pertinent part:

        That in consideration of the sum of Eight Hundred and
        Forty-Six 58/100 Dollars, in hand paid, the receipt of
        which is hereby acknowledged, the said W. T. Fuller has
        sold and by these presents do grant unto the said parties
        of the second part, with General Warranty, all the
        following piece or parcel of land lying on the ridge
        between Lewis Creek and Swords Creek and contains about
        seventy-five acres be the same more or less [metes and
        bounds description follows]. This sale is not ment [sic]
        to convey any coals or minerals. The same being sold and
        deeded to other parties heretofore.
The dispositive question before us is the interpretation to be

given to the last two sentences quoted above. 1

        The appellant, CNX Gas Company, LLC (CNX) claimed the

mineral rights, excluding coal, in the 75-acre tract as lessee

under the successors in interest to Unice Nuckles, the grantee

in the 1918 deed.    The appellees, James D. Rasnake, Mike O.

Rasnake and Lucy Mae Blankenship, claimed the same rights as

successors in interest to the Fullers, the grantors in the 1918

deed.    CNX has been producing coal bed methane gas for some time

from the property it has leased. 2

        The plaintiffs brought this action in the circuit court and

CNX filed an answer and counterclaim for a judgment declaratory

of its title to the mineral estate in the 75-acre tract.    By




1
  CNX contends that the last ten words do not constitute a
sentence, but were intended to be a dependent clause modifying
the preceding sentence. This appeal involves only mineral
rights.
2
  Parties on both sides were later added, substituted and
dismissed by orders in the circuit court. When the final order
was entered, the parties plaintiff were James Rasnake, Bobby Lee
Rasnake, Peggy Rasnake, Donna Jean Whitt, Debbie Cook Carlock
and Harold David Dye (hereinafter the plaintiffs), as successors
in interest to the Fullers. The sole defendant was CNX, as
successor in interest to Unice Nuckles.
                                   2
agreement of the parties, the court heard the case and arguments

of counsel ore tenus on the above evidence, which was not

disputed.

     By letter opinion, the court held that the questioned

language in the 1918 deed created "an unambiguous exception of

the coal and minerals located on the property.    The first clause

excepts all coal and minerals from the conveyance, and the

second clause explains the reason for the exception.    As the

deed excepts any coal and minerals, the exception is not limited

to . . . coal and minerals previously conveyed.    The second

clause does not limit the exception created in the first

clause."    The court entered a final order declaring that the

plaintiffs owned the mineral estate.     We awarded CNX an appeal.

                              Analysis

     Where 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.   Harris v. Scott, 179 Va. 102, 108, 18 S.E.2d 305,

307 (1942); Schultz v. Carter, 153 Va. 730, 734, 151 S.E. 130,

131 (1930).

     Applying that principle, we initially confine our

consideration to the four corners of the 1918 deed to ascertain

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whether its language concerning mineral rights is plain and

unambiguous.   We have defined "ambiguity" as "the condition of

admitting of two or more meanings, of being understood in more

than one way."   Berry v. Klinger, 225 Va. 201, 207, 300 S.E.2d

792, 796 (1983) (internal quotation marks omitted).

     The disputed language in the 1918 deed is obviously capable

of being understood by reasonable persons in more than one way,

as demonstrated by the interpretations advanced by the

plaintiffs, CNX, and the opinion of the circuit court.         The

language suggests at least three possibilities: (1) that the

grantors mistakenly believed that all mineral rights, including

coal, had previously been conveyed to others and wished to make

clear that they were being excluded from the 1918 conveyance to

avoid future liability under their general warranty; (2) that

the grantors knew that coal alone had been previously conveyed

and wished to reserve all other mineral rights to themselves,

and (3) that the grantors intended to convey to the grantee only

those mineral rights that had not been previously conveyed to

others.

     It is therefore appropriate to go outside the four corners

of the deed to consider the existing circumstances, at least to

the extent of the fact that coal interests had been conveyed in

1887 but that all other mineral rights remained in the grantors

until delivery of the 1918 deed.       See, e.g., Ott v. L&J

                                   4
Holdings, LLC, 275 Va. 182, 188, 654 S.E.2d 902, 905 (2008)

("Because the deed could be understood in more than one way, the

circuit court correctly decided that it was ambiguous and

admitted parol evidence to resolve the ambiguity.").

     We are also aided by several well-established rules of

construction.   Where language in a deed is ambiguous, the

language must be construed against the grantor and in favor of

the grantee.    Ellis v. Commissioner, 206 Va. 194, 202, 142

S.E.2d 531, 536 (1965).   We have called this rule "one of the

most just and sound principles of the law because the grantor

selects his own language."    Elterich v. Leicht Real Estate Co.,

130 Va. 224, 238, 107 S.E. 735, 759 (1921).   A grantor must be

considered to have intended to convey all that the language he

has employed is capable of passing to his grantee.     Hamlin v.

Pandapas, 197 Va. 659, 664, 90 S.E.2d 829, 833 (1956).

     Other rules of construction also apply when language in a

deed is found to be ambiguous.   The whole of a deed and all its

parts should be considered together.    Auerbach v. County of

Hanover, 252 Va. 410, 414, 478 S.E.2d 100, 102 (1996).    Effect

should be given to every part of the instrument, if possible,

id., and no part thereof should be discarded as superfluous or

meaningless.    Foster v. Foster, 153 Va. 636, 645, 151 S.E. 157,

160 (1930).    Where the meaning of the language is not clear, or

the deed is not artfully drawn, the court should interpret its

                                  5
terms to harmonize them, if possible, so as to give effect to

the intent of the parties.   See id. at 646, 151 S.E. at 160.

     When a deed's language is unclear as to the nature and

extent of the estate the grantor intended to convey, so strong

is the presumption in favor of that interpretation most

favorable to the grantee, that we have held that where there is

doubt whether one or two parcels of land were intended to be

conveyed, the deed will be construed to pass title to both.

Carrington v. Goddin, 54 Va. (13 Gratt.) 587, 610 (1857), cited

with approval in Bostic v. Bostic, 199 Va. 348, 355-56, 99

S.E.2d 591, 597 (1957); see also Chapman v. Mill Creek Coal &

Coke Co., 46 S.E. 262, 263 (W. Va. 1903).

     The granting clause in the 1918 deed purports to convey a

fee simple absolute.   The language that follows the description

appears to impose a limitation of questionable effect.    At

common law, the granting clause always prevailed over language

repugnant to it, but under the modern rule, the intent of the

parties, where clearly and unequivocally expressed, will be

given effect.   When, however, it is impossible to discover with

reasonable certainty the parties' intent from the language of

the deed, the common law rule still applies and the granting

clause prevails.   Goodson v. Capehart, 232 Va. 232, 236, 349

S.E.2d 130, 133 (1986).



                                 6
     That rule applies with particular force to exceptions in a

deed that are repugnant to the granting clause.      "An exception

in a deed is always to be taken most favorably for the grantee,

and if it be not set down and described with certainty, the

grantee shall have the benefit of the defect."       Bradley v.

Virginia Railway & Power Co., 118 Va. 233, 238, 87 S.E. 721, 723

(1916) (citation and internal quotation marks omitted).

     Applying the foregoing rules to the disputed language in

the 1918 deed before us, we consider the three possible

interpretations suggested above.       The first fails because it is

contrary to the undisputed facts.      The coal had previously been

conveyed to others and the grantors are bound by the condition

of their title of record.    The second interpretation fails

because it discards the last ten words of the purported

exception as superfluous and meaningless and treats the first

sentence as an unlimited and unconditional reservation of

mineral rights. 3   The third interpretation gives effect to all of

the language employed by the grantors and eliminates conflict

among its parts.    Under that interpretation, the last ten words




3
  The second interpretation treats the ambiguous language as an
express and unconditional exception, although it lacks any words
demonstrating an intent on the grantors' part to reserve any
mineral rights to themselves. Further, the explanation that all
mineral rights had been conveyed to others is inconsistent with
an intent to reserve them to the grantors.
                                   7
modify the preceding sentence, denoting the grantors' intent to

exclude from the conveyance only those mineral rights previously

conveyed to others, namely the coal.

     So construed, the deed conveys to the grantee in fee simple

all of the mineral interests in the land embraced within the

deed's metes and bounds description that the grantors were

capable of conveying at the time, excluding only the coal, which

they no longer owned.   Accordingly, we adopt that interpretation

and hold that the circuit court erred in construing the disputed

language to constitute an unambiguous exception of all coal and

other minerals from the conveyance.

                            Conclusion

     For the reasons stated, we will reverse the judgment

appealed from and enter final judgment here for CNX, holding

that the 1918 deed conveyed to Unice Nuckles and her successors

in interest all of the mineral estate in the land described

therein except the coal previously conveyed to others.



                                       Reversed and final judgment.




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