                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


Dennis Kidder, Sandra Charlene Kidder Lutz,
Marcia Lynn Mitchell, Nelson Kidder, Louise                                   FILED
Craft, Elaine Kidder, Linda Carpenter, Lois                              November 17, 2017
Jane Ristau, Larry W. Kidder, Jeannette M.                                 EDYTHE NASH GAISER, CLERK
Kidder, and Robert E. Kidder,                                              SUPREME COURT OF APPEALS
                                                                               OF WEST VIRGINIA
Defendants and Third-Party Plaintiffs Below, Petitioners

vs) No. 16-1109 (Tyler County 14-C-4H)

Montani Energy, LLC; Whittle Corporation; Statoil USA
Onshore Properties; Inc., Ralph Koontz, Mary Jo Koontz,
Barbara K. Baker, Linda P. Sherwood, David Allen Sherwood,
Phillip K. Sherwood, Lynn E. McCann, Ray McCann, Stephen
Schubach, Danny Ray Booher, Christina Faye Booher, William
D. Hope, Lois Marlene Fletcher Stern, Velma Well, James L.

Kleeh, and Marilyn Kleeh,

Defendants Below, Respondents



                             MEMORANDUM DECISION
       Petitioners Dennis Kidder, Sandra Charlene Kidder Lutz, Marcia Lynn Mitchell, Nelson
Kidder, Louise Craft, Elaine Kidder, Linda Carpenter, Lois Jane Ristau, Larry W. Kidder,
Jeannette M. Kidder, and Robert E. Kidder (collectively, “the Kidder heirs”), by counsel
Gerasimos Sklavounakis, appeal the order of the Circuit Court of Tyler County, entered on
October 26, 2016, that granted the motion for summary judgment of Respondent Statoil USA
Onshore Properties, Inc. (“Statoil”).1 Respondent Statoil appears by counsel Denise D. Pentino,
Jacob A. Manning, Christopher J. Prezioso, and Stuart C. Hollimon. Respondents Ralph Koontz,
Mary Jo Koontz, Barbara K. Baker, Linda P. Sherwood, David Allen Sherwood, Phillip K.
Sherwood, Lynn E. McCann, Ray McCann, Stephen Schubach, Danny Ray Booher, Christina
Faye Booher, William D. Hope, Lois Marlene Fletcher Stern, Velma Well, James L. Kleeh, and
Marilyn Kleeh (collectively, “the Andrew and Okey Rice heirs”); Montani Energy, LLC
(“Montani Energy”); and Whittle Corporation appear by counsel Debra L. Steed.



       1
         The same circuit court order granted default judgment against parties who failed to
plead. The entry of default judgment is not an issue in this appeal. Numerous parties, including
petitioners, filed motions for summary judgment; however, the order appealed by petitioners
specifies that it addresses the motion for summary judgment and motion for default judgment of
Statoil.


                                               1

       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.

       This matter concerns the mineral rights beneath approximately 540 acres of land situate
in Tyler and Wetzel Counties. Four separate parcels of the subject acreage were conveyed in
1910, by A.J. and Letha Rice, through four separate deeds (“the 1910 deeds”), to four of the
Rices’ six children: Finley Rice, Andrew Rice, Okey Rice, and Mary Kidder. Each deed
provided, in part:

       The parties of the first part reserve and except from the operation of this deed and
       do not convey the usual royalty of one eighth of all the oil produced and saved
       from said land and also the consideration for gas for each gas well drilled on said
       land and producing gas and used and marketed off premises for the use and
       benefit of all the grantors’ children, to wit: Finley Rice, Andrew Rice, Okey L.
       Rice, Mrs. Linda Rabel, Mrs. Belle Stamm, and Mrs. Mary F. Kidder, equally, to
       share and share alike each with the other therein.

The elder Rices died intestate and, around 1916, the reserved interest passed in equal shares to
the six children. Later, in 1919, Mary Kidder and her husband conveyed approximately 112 acres
of their 116-acre tract to Andrew Rice, “subject to the same reservations as to oil and gas,
contained in [the 1910 deeds]. . . .”2 Petitioners are the heirs of the interest of Mary Kidder.

       Between 2010 and 2014, Respondent Statoil acquired oil and gas leases on portions of
the subject property through various transactions.3 Statoil designated certain of those tracts Nos.
120, 121, 123, and 124.

        Prior to Statoil’s acquisitions, in 2001, Nancy Fout purchased a tax sale deed to what she
asserted were the oil and gas rights of the Andrew Rice interest.4 Nancy Fout and her husband
John Fout filed their “Complaint to Determine Title” in the Circuit Court of Tyler County in



       2
         Pending is the motion of respondents Montani Energy, Whittle Corporation, and the
Andrew and Okey Rice heirs to supplement the appendix record on appeal with the 1919 deed
evidencing the transaction between Mary Kidder and Andrew Rice. Inasmuch as the
establishment of the chain of title is unnecessary to our determination of the issues on appeal,
respondents’ motion is denied.
       3
           Since, Statoil has conveyed its leases to a third party.
       4
        We note that the deed description indicated that Ms. Fout purchased “1/5 Roy 489.45A
Elk Fork.”


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early 2014, claiming a 1/5 interest in the oil and gas underlying the subject property.5 They
named sixty-nine defendants, known and unknown. Whittle Corporation, per the Fouts’
complaint, had drilled the subject property “without clear title and in conflict with the alleged
owners of the oil and gas,” filed an answer together with Montani Energy, to which Whittle
Corporation had transferred some or all of its lease interest. The Kidder heirs filed an answer to
the complaint, together with a counterclaim, cross-claim, and third-party complaint seeking to
quiet title.6 Respondent Statoil answered the complaint, answered the Kidder heirs’ counterclaim,
cross-claim, and third-party claim, and also filed a counterclaim, cross-claim, and complaint for
declaratory judgment and to quiet title.

         Upon the filing of Respondent Statoil’s motion for summary judgment in late 2014, the
circuit court found that the 1910 deeds reserved a royalty interest only, and the oil and gas
ownership rights thus passed with the land conveyance. The circuit court ruled in favor of
respondent, finding that respondent has a leasehold title to Tract Nos. 120, 121, and 124 of the
subject acreage, and granted respondent’s motion for summary judgment. The Kidder heirs
appealed; the Fouts did not. On appeal, petitioners assert two assignments of error. They argue,
first, that the circuit court erred in finding that A.J. and Letha Rice reserved only a royalty
interest in the 1910 conveyances rather than finding that A.J. and Letha Rice reserved the oil and
gas in place. They argue, second, that the circuit court failed to address the ownership of all of
the oil and gas that was conveyed in the 1910 deeds. The circuit court’s ruling on the Statoil
summary judgment motion is before us. Accordingly, we apply a de novo standard of review.
Syl. Pt. 1, Painter v. Peavy, 192 W.Va. 189, 190, 451 S.E.2d 755, 756 (1994).

       We begin with petitioners’ first assignment of error, in which they argue that the 1910
deed reserved the oil and gas in place. We clarified in 1963:

       Where deeds are made by which several undivided interests in a tract of land are
       conveyed, with the right in the several grantees, their heirs and assigns, to lease
       the land for oil and gas purposes and to receive the carrying rental, or the bonuses
       and carrying rentals, but subject to reservations in favor of the several grantors of
       the oil and gas royalty, when produced, such reservations do not constitute a
       reservation of the oil and gas in place; but, on the contrary, such deeds constitute
       a conveyance of the entire tract of land, including the oil and gas in place, but
       subject to mere royalty interests in the oil and gas when such oil or gas, or both,
       are produced.

Syl., Davis v. Hardman, 148 W. Va. 82, 82-83, 133 S.E.2d 77, 77 (1963). Petitioners argue that,
prior to this clarification, and when the 1910 deeds were executed, “a reservation of the ‘usual
royalty’ was actually a reservation of the oil and gas in place.” Relying on Toothman v.
Courtney, 62 W.Va. 167, 58 S.E. 915 (1907) and Paxton v. Benedum-Trees Oil Co., 80 W.Va.

       5
          According to the Fouts’ complaint, A.J. and Letha Rice’s daughter Linda Rabel died
intestate and childless in 1926, and her interest thus passed to her siblings in equal share.
       6
       It does not appear that Petitioner Robert E. Kidder was named in the Fouts’ complaint.
However, the Fouts named “any other person . . . claiming any interest in the oil and gas. . . .”
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187, 94 S.E. 472 (1917)(“A grant of the royalties, rents, and income arising from the production
of the oil from land is a grant of the oil in such land”)7, petitioners urge us to determine that A.J.
and Letha Rice reserved the oil and gas in place when conveying the surface acreage to four of
their six children in 1910.

        But the holding of Paxton is not absolute in terms of the effect of a reservation of
royalties. As we explained in Davis:

       The rule enunciated in Paxton . . . is but a rule of construction and the function of
       the Court in any situation such as that presented by the present case is to ascertain
       the true intent of the parties as expressed by them in the deed, lease or other
       written instrument under consideration. ‘A valid written instrument which
       expresses the intent of the parties in plain and unambiguous language is not
       subject to judicial construction or interpretation but will be applied and enforced
       according to such intent.’ Cotiga Development Co. v. United Fuel Gas Co.,
       W.Va., pt. 1 syl., 128 S.E.2d 626. In the construction of a deed or other legal
       instrument, the function of a court is to ascertain the intent of the parties as
       expressed in the language used by them. [(Citations omitted.)] All rules of
       construction must yield to the expressed intention of the parties if that can be
       ascertained. Realty Securitites & Discount Co. v. National Rubber & Leather Co.,
       122 W.Va. 21, 7 S.E.2d 49; 5 M.J., Deeds, Section 57, page 729. In the present
       case, therefore, there is no place for application of the rule enunciated in Paxton v.
       Benedum-Trees Oil Co., supra, if it appears that the intention of the parties is
       clearly expressed in the language which created the oil and gas reservations now
       under consideration.

Davis, 148 W. Va. at 88-89, 133 S.E.2d at 81.

       Here, the 1910 deeds expressed that A.J. and Letha Rice reserved “the usual royalty of
one eighth of all the oil produced and saved from said land” as well as “the consideration for gas
for each gas well drilled on said land and producing gas and used and marketed off premises. . .
.” The Davis Court addressed similar language emanating from a deed executed at the end of the
nineteenth century, and thus prior to the 1910 deeds now before us:

       We observe also that the several reservations are of fractional portions of the oil
       and gas royalty ‘when produced.’ In McDonald v. Bennett, 112 W.Va. 347, 164
       S.E. 298, a case involving a question similar to that involved in the instant case,
       the Court emphasized the significance of the words, ‘that may be produced.’ See
       also Harris v. Cobb, 49 W.Va. 350, 355, 38 S.E. 559, 561. It is apparent from the
       words ‘when produced’ that the parties were not speaking in terms of an interest
       in the oil and gas then in place, but rather of the royalty interest which would
       follow production of oil or gas, or both. If the language of the several deeds were
       treated as constituting a reservation of the oil and gas in place, the words ‘when



       7
           The Paxton Court was tasked with interpreting inconsistent deed terms.
                                                  4

       produced’ would have to be regarded as meaningless surplusage. Such a
       construction also would be wholly out of harmony with a grant to the several
       grantees, their heirs and assigns of the right to lease the land for oil and gas
       purposes and to receive the bonuses and carrying rentals. On the other hand, a
       construction which places in the grantees the ownership of the oil and gas in
       place, subject to mere royalty rights, renders all of the language of the
       reservations meaningful and purposeful.

Davis, 148 W. Va. at 91, 133 S.E.2d at 82. As with the McDonald reservation, the deed before us
speaks of royalties realized once the land is “drilled” or the minerals are “produced” or
“marketed.” The reservation vested in A.J. and Letha Rice (and their successors) no control over
the drilling or production or marketing. It is apparent that A.J. and Letha Rice wished to retain
the royalty interest for any oil that the landowners allowed to be produced, as well as for any gas
that the landowners allowed to be marketed for use other than their own on-premises use. The
language of the 1910 deeds, on its face, is clearly intended to reserve the royalty interest only.
Accordingly, there is no error in the circuit court’s grant of summary judgment.

        We turn to the second assignment of error, in which petitioners assert that the circuit
court “fail[ed] to address the ownership status of all the oil and gas in place that was subject of
the 1910 [d]eeds. . . .” Specifically, petitioners argue, the circuit court failed to settle the matter
of the ownership of Tract No. 123. In its memorandum in support of summary judgment filed in
circuit court, Statoil requested specific relief, including a declaration “that [it] has valid and
subsisting oil, gas and mineral leases covering all or a portion of the mineral in, on and under the
lands referred to herein as [Tract Nos.] 120, 121, and 124. . . .” The motion before the circuit
court sought no relief with respect to Tract No. 123, and the circuit court was not obligated to
grant unrequested relief. We have long held that this Court will not review nonjurisdictional
questions that were not decided by the lower court. Syl. Pt. 2, Duquesne Light Co. v. State Tax
Dep’t, 174 W.Va. 506, 327 S.E.2d 683 (1984). Thus, as this issue is not properly before this
Court, we find no merit is petitioners’ second assignment of error.

       For the foregoing reasons, we affirm.

                                                                                            Affirmed.

ISSUED: November 17, 2017

CONCURRED IN BY:

Chief Allen H. Loughry II
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Elizabeth D. Walker




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