       IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                            September 2017 Term
                              _______________                     FILED
                                                              October 19, 2017
                               No. 16-0962                        released at 3:00 p.m.
                             _______________                    RORY L. PERRY II, CLERK
                                                              SUPREME COURT OF APPEALS
                                                                   OF WEST VIRGINIA
                      GASTAR EXPLORATION INC.
                      and RONA LEE MCCARDLE,
                       Defendants Below, Petitioners

                                     v.

                  GARY RINE, as the Administrator of the

                    Estate of Okey Franklin Yoho, et al.

                       Plaintiffs Below, Respondents


        ________________________________________________________

              Appeal from the Circuit Court of Marshall County

                The Honorable David W. Hummel, Jr., Judge

                         Civil Action No. 13-C-164


                      REVERSED AND REMANDED


        ________________________________________________________

                         Submitted: October 4, 2017

                           Filed: October 19, 2017


William M. Herlihy, Esq.              Jeffrey V. Kessler, Esq.

Spilman Thomas & Battle, PLLC         Berry, Kessler, Crutchfield, Taylor &

Charleston, West Virginia             Gordon

Matthew P. Heiskell, Esq.             Moundsville, West Virginia

Spilman Thomas & Battle, PLLC         Counsel for Respondents Gary Rine,

Morgantown, West Virginia             individually and as the Administrator

Counsel for Petitioner                of the Estate of Okey Franklin Yoho;

Gastar Exploration Inc.               Dinah A. Gray; and Carl Smith


Jeffrey A. Kimble, Esq.

Robinson & McElwee, PLLC              Teresa C. Toriseva, Esq.

Clarksburg, West Virginia             Joshua D. Miller, Esq.

Counsel for Petitioner	             Toriseva Law
Rona Lee McCardle	                  Wheeling, West Virginia
                                    Counsel for Respondents Betty Pyzell;
                                    Norma Ash; Debbie Rine; LeRoy Yoho;
                                    Kim Yoho; Ron Yoho; Jodi Yoho; Vicki
                                    Williams; Connie Streight; Nancy
                                    Brown; Mark Campbell; and Harold
                                    Yoho


JUSTICE KETCHUM delivered the Opinion of the Court.
                             SYLLABUS BY THE COURT


              1.     “A circuit court’s entry of a declaratory judgment is reviewed de

novo.” Syllabus Point 3, Cox v. Amick, 195 W.Va. 608, 466 S.E.2d 459 (1995).

              2.     “When it is found from the pleadings, depositions and admissions on

file, and the affidavits of any party, in a summary judgment proceeding under Rule 56 of

the West Virginia Rules of Civil Procedure, that a party who has moved for summary

judgment in his favor is not entitled to such judgment and that there is no genuine issue

as to any material fact, a summary judgment may be rendered against [the moving] party

in such proceeding.” Syllabus Point 6, Employers’ Liab. Assur. Corp. v. Hartford Acc. &

Indem. Co., 151 W.Va. 1062, 158 S.E.2d 212 (1967).

              3.     “For ascertainment of the intent of the parties to a deed in which the

description of the subject matter is inconsistent, contradictory and ambiguous, extrinsic

evidence is admissible.” Syllabus Point 1, State v. Herold, 76 W.Va. 537, 85 S.E. 733

(1915).

              4.     “To enable the court to construe a deed or other writing, ambiguous

on its face, it is always permissible to prove the situation of the parties, the circumstances

surrounding them when the contract was entered into and their subsequent conduct giving

it a practical construction, but not their verbal declarations. But, if a latent ambiguity is

disclosed by such evidence, such for instance as that the terms of the writing are equally

applicable to two or more objects, when only a certain one of them was meant, then prior

and contemporaneous transactions and collocutions of the parties are admissible, for the



                                              i

purpose of identifying the particular object intended.”     Syllabus Point 2, Snider v.

Robinett, 78 W.Va. 88, 88 S.E. 599 (1916).

             5.     “The term ‘ambiguity’ is defined as language reasonably susceptible

of two different meanings or language of such doubtful meaning that reasonable minds

might be uncertain or disagree as to its meaning.” Syllabus Point 4, Estate of Tawney v.

Columbia Nat. Res., L.L.C., 219 W.Va. 266, 633 S.E.2d 22 (2006).

             6.     “Where there is ambiguity in a deed, or where it admits of two

constructions, that one will be adopted which is most favorable to the grantee.” Syllabus

Point 6, Paxton v. Benedum-Trees Oil Co., 80 W.Va. 187, 94 S.E. 472 (1917).




                                             ii

Justice Ketchum:


              This case concerns a 1977 deed and its effect on the ownership of a one-

half interest in oil and gas beneath a tract of land in Marshall County, West Virginia.

When a deed is ambiguous, a court must weigh extraneous evidence like the conduct of

the grantor and grantee to determine the parties’ intent. A court must also adopt any

reasonable interpretation of the deed most favorable to the grantee.

              As we discuss below, we find the 1977 deed is ambiguous and of such

doubtful meaning that reasonable minds disagree as to the deed’s intent. The Circuit

Court of Marshall County incorrectly found the deed was clear, and incorrectly found that

the grantors did not convey the one-half interest in oil and gas to the grantee. Because

the deed was ambiguous, the circuit court should have considered the parties’ conduct

after delivery of the deed – namely that the grantors to the deed stopped paying taxes on

the oil and gas interest while the grantee started paying taxes. We reverse the circuit

court’s decision, and remand the case for entry of a judgment in favor of the grantee.



                                  I.

                 FACTUAL AND PROCEDURAL BACKGROUND


              Before 1957, Clifford and Beulah Franklin owned the entire tract of land in

dispute in this case. Then, by a deed dated January 30, 1957, the Franklins conveyed the

tract to Okey and Frances Yoho in fee simple, with one important reservation: the

Franklins “excepted and reserved” for themselves an undivided one-half interest in the oil




                                             1

and gas underlying the tract. They conveyed the other one-half interest to the Yohos.


The 1957 deed provided:

              There is further excepted and reserved from this conveyance
              an undivided one-half (1/2) interest in the oil and gas,
              including gas storage rights, within and underlying the land
              hereby conveyed, together with such mining rights and
              privileges as may be necessary and convenient to the
              operation thereof for production, storage or observation of
              said oil and gas and the strata containing the same.

Hence, the parties agree that, under the 1957 deed, the Yohos owned the surface of the

tract and owned a one-half undivided interest in the oil and gas.

              Over the next 20 years, tax documents in the record indicate that the Yohos

paid real estate taxes on that one-half oil and gas interest. For instance, tax records for

1976 show that the Yohos were assessed taxes on the tract and the one-half oil and gas

interest, described in the tax records as “102.080 [acres] Long Run & ½ O&G.” The tax

records also show the Franklins were assessed taxes on the other one-half interest,

described as, “½ Int[erest] 102.08 [acres] O&G Long Run.”

              In a deed dated April 5, 1977, the Yohos conveyed the tract to defendant
                      1
Rona Lee McCardle.        The 1977 deed conveyed to Ms. McCardle “the same property

conveyed to Okey F. Yoho and Frances A. Yoho, his wife, by Clifford E. Franklin and

Beulah Franklin, his wife, by deed dated the 30th day of January, 1957[.]”


              1
               A 2016 affidavit in the record suggests that Ms. McCardle is now Rona
Rice. However, the parties, pleadings, tax records, and 1977 deed all use Ms. Rice’s
name as it was in 1977. Hence, for purposes of clarity and simplicity, throughout this
opinion we refer to the defendant as Ms. McCardle.


                                             2

              However, the parties dispute the meaning of language in the 1977 deed


regarding the one-half interest in the oil and gas.       The scrivener of the 1977 deed

included an “excepted and reserved” paragraph identical, word-for-word, to that

contained in the Franklins’ 1957 deed, which provided:

              There is further excepted and reserved from this conveyance
              an undivided one-half (1/2) interest in the oil and gas,
              including gas storage rights, within and underlying the land
              hereby conveyed, together with such mining rights and
              privileges as may be necessary and convenient to the
              operation thereof for production storage or observation of
              said oil and gas and the strata containing the same.

              In an affidavit, Ms. McCardle stated that it was her “understanding and

intention” that she purchased one-half of the oil and gas beneath the tract. Over the next

30-plus years after 1977, tax documents indicate that Ms. McCardle paid real estate taxes

on the one-half oil and gas interest. For instance, tax records from 1978 show Ms.

McCardle was assessed taxes on land described as “102.080 [acres] Long Run & ½

O&G.” In her affidavit, Ms. McCardle stated that since 1977 she has paid all of the real

estate taxes due on the surface estate and on the one-half oil and gas interest.

              The same tax documents show that, after conveying the property to Ms.

McCardle in 1977, the Yohos did not pay real estate taxes on the oil and gas interest. An

entry in the 1977 tax records indicates that the Yohos were initially assessed taxes on the

tract.   However, the tax entry for the Yohos has a line scrawled through with the

handwritten notation, “to Rona Lee McCardle DB 465 p. 256 4-5-77 Pd$39500.” The

1977 deed from the Yohos to Ms. McCardle is on record in the Marshall County Clerk’s



                                              3

Office in Deed Book 465 at page 256. There are no entries in the tax records suggesting


that the Yohos paid taxes on the tract or the one-half oil and gas interest after 1977.

              In 2008, Ms. McCardle entered into an oil and gas lease with defendant

Gastar Exploration, Inc. The lease covers the Marshall County tract described in the

1977 deed between Ms. McCardle and the Yohos. Gastar subsequently drilled a well and

began extracting oil and gas from beneath the tract.



                              Litigation over the 1977 Deed

              Mrs. Yoho died in 1979; Mr. Yoho died intestate in 1997. Then, in 2013,

sixteen years after Mr. Yoho’s death, plaintiff Gary Rine was appointed administrator of

the estate of Mr. Yoho, to act on behalf of Mr. Yoho’s heirs (a group we hereafter call

“the Yoho heirs”).
                                                                                          2
              On October 15, 2013, plaintiff Rine and the Yoho heirs filed a complaint

against defendants Gastar and Ms. McCardle. The Yoho heirs asserted that, in the 1977

deed, the Yohos retained ownership of the one-half undivided interest in the oil and gas.

In other words, the heirs contend that the Yohos did not convey their one-half interest to

Ms. McCardle, and that the interest eventually passed on to the Yoho heirs. The Yoho

heirs alleged that the defendants have trespassed on their oil and gas interest and, by

              2
               Mr. Rine was the husband of one of Mr. Yoho’s daughters, Linda Rine,
who died after the complaint was filed. Mr. Rine asserts he is acting as a direct heir of
Mr. Yoho as well as the administrator of his estate. Amendments to the original
complaint added other heirs of Mr. Yoho to this suit. Additionally, the circuit court
appointed an attorney as guardian ad litem for any unknown heirs to Mr. Yoho’s estate.


                                              4

taking oil and gas from the ground, engaged in conversion. As relief, the Yoho heirs


sought compensatory damages, an injunction, and an order creating a lease between the

heirs and Gastar.

              The Yoho heirs later amended the complaint to request a declaratory

judgment interpreting the 1977 deed. In December 2015, the parties informed the circuit

court that they had agreed to dispose of the declaratory judgment action while staying the

remainder of the case.     Based upon the parties’ agreement, the circuit court stayed

discovery on all claims except the declaratory judgment claim.

              In April 2016, the Yoho heirs filed a motion for summary judgment on the

declaratory judgment claim and stated that no genuine question of material fact existed
                                                         3
regarding ownership of the disputed oil and gas rights. The Yoho heirs argued that the

1977 deed conveyed only the surface of the tract to Ms. McCardle and unambiguously

reserved to the Yohos ownership in the one-half interest in the oil and gas.             The

defendants opposed the motion and asked the circuit court to enter judgment in the

defendants’ favor. The defendants argued that the 1977 deed was ambiguous, and argued

that the parties’ actions in the decades after delivery of the deed left no question that the

Yohos believed Ms. McCardle was the sole owner of the one-half interest after 1977.

              In an order dated September 13, 2016, the circuit court decided that the

1977 deed was clear and unambiguous. The circuit court declared that the Yohos kept for

              3
              The plaintiffs’ motion actually provided that “the Defendants are entitled
to judgment as a matter of law.” We presume this was a drafting error by plaintiffs’
counsel.


                                             5

themselves the one-half interest in the oil and gas and that the deed “did not convey any

mineral interest” to Ms. McCardle. Defendants Gastar and Ms. McCardle now appeal the

circuit court’s declaratory judgment order.



                                           II.

                                   STANDARD OF REVIEW


                 The salutary purpose of a declaratory judgment action is to resolve legal

questions. Hence, “[a] circuit court’s entry of a declaratory judgment is reviewed de
         4
novo.”       Further, the parties agreed below that no genuine questions of material fact

existed and that the circuit court’s summary judgment ruling centered upon the legal

interpretation of the 1977 deed. We likewise review a circuit court’s summary judgment
                 5
order de novo.
                                                                                6
                 The term “de novo” means “Anew; afresh; a second time.”            “We have

often used the term ‘de novo’ in connection with the term ‘plenary.’. . . Perhaps more

instructive for our present purposes is the definition of the term ‘plenary,’




                 4
                     Syllabus Point 3, Cox v. Amick, 195 W.Va. 608, 466 S.E.2d 459 (1995).
                 5
               Syllabus Point 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994)
(“A circuit court’s entry of summary judgment is reviewed de novo.”).
                 6
               Frymier-Halloran v. Paige, 193 W.Va. 687, 693, 458 S.E.2d 780, 786
(1995) (quoting Black’s Law Dictionary 435 (6th ed. 1990)).


                                                 6

                                                                           7
which means ’[f]ull, entire, complete, absolute, perfect, unqualified.’”       “We therefore

give a new, complete and unqualified review to the parties’ arguments and the record
                             8
before the circuit court.”

              Because the purpose of a summary judgment proceeding is to expedite the

disposition of a case and avoid unnecessary litigation and trials, we proceed with the

well-established rule in mind that a summary judgment may be rendered against the party

moving for judgment and in favor of the opposing party even though the opposing party

has made no motion for summary judgment. As this Court once stated,

              When it is found from the pleadings, depositions and
              admissions on file, and the affidavits of any party, in a
              summary judgment proceeding under Rule 56 of the West
              Virginia Rules of Civil Procedure, that a party who has
              moved for summary judgment in his favor is not entitled to
              such judgment and that there is no genuine issue as to any
              material fact, a summary judgment may be rendered against
                                                     9
              [the moving] party in such proceeding.


              7
              State ex rel. Clark v. Blue Cross Blue Shield of W.Va., Inc., 203 W.Va.
690, 701, 510 S.E.2d 764, 775 (1998) (quoting Black’s Law Dictionary 1154 (6th ed.
1990)).
              8
                  Blackrock Capital Inv. Corp. v. Fish, 799 S.E.2d 520, 526 (W.Va. 2017).
              9
                Syllabus Point 6, Employers’ Liab. Assur. Corp. v. Hartford Acc. &
Indem. Co., 151 W.Va. 1062, 158 S.E.2d 212 (1967). Accord, Syl. pt. 2, Arnold v.
Palmer, 224 W.Va. 495, 686 S.E.2d 725 (2009); Nat’l Union Fire Ins. Co. of Pittsburgh
v. Miller, 228 W. Va. 739, 742, 724 S.E.2d 343, 346 (2012). See also, Southern Erectors,
Inc. v. Olga Coal Co., 159 W.Va. 385, 393-94, 223 S.E.2d 46, 51 (1976) (Under Rule
56(c) of the West Virginia Rules of Civil Procedure, “the authorities agree that a court
may enter judgment for a party opposing a summary judgment motion even though no
cross-motion has been made.”); Fed.R.Civ.Pro. Rule 56(f) [2010] (“After giving notice
and a reasonable time to respond, the court may: (1) grant summary judgment for a
nonmovant; (2) grant the motion on grounds not raised by a party; or (3) consider
                                                                          Continued . . .
                                              7

                                               III.

                                            ANALYSIS


              The parties agree that, in 1957, the Yohos purchased a one-half undivided

interest in oil and gas. The parties’ arguments center upon the interpretation of the 1977

deed, and whether the oil and gas interest was conveyed by the Yohos to Ms. McCardle.

              “Deeds are subject to the principles of interpretation and construction that
                               10
govern contracts generally.”         “[T]he polar star that should guide us in the construction

of deeds as of all other contracts is, what was the intention of the party or parties making

the instrument, and when this is determined, to give effect thereto, unless to do so would
                                    11
violate some rule of property.”

              When a deed expresses the intent of the parties in clear and unambiguous

language, a court will apply that language without resort to rules of interpretation or

extrinsic evidence. “In construing a deed, will, or other written instrument, it is the duty

of the court to construe it as a whole, taking and considering all the parts together, and

giving effect to the intention of the parties wherever that is reasonably clear and free from




summary judgment on its own after identifying for the parties material facts that may not
be genuinely in dispute.”). See generally, Charles Alan Wright, et al., 10A Federal
Practice & Procedure § 2720.1 (4th Ed. 2017).
              10
               Syllabus Point 3, Faith United Methodist Church & Cemetery of Terra
Alta v. Morgan, 231 W.Va. 423, 745 S.E.2d 461 (2013).
              11
                Syllabus, Totten v. Pocahontas Coal & Coke Co., 67 W.Va. 639, 642, 68
S.E. 373, 374 (1910).


                                                 8

                                                                                      12
doubt, unless to do so will violate some principle of law inconsistent therewith.”         “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
                                                     13
applied and enforced according to such intent.”

              However, when a deed is inconsistent, confusing or ambiguous on its face,

a court must look to extrinsic evidence of the parties’ intent to construe the deed. It has

been a longstanding rule that, “For ascertainment of the intent of the parties to a deed in

which the description of the subject matter is inconsistent, contradictory and ambiguous,
                                      14
extrinsic evidence is admissible.”         A trial court may look to a variety of evidence,

including the parties’ conduct before and after delivery of the deed, to discern the parties’

intent:

              To enable the court to construe a deed or other writing,
              ambiguous on its face, it is always permissible to prove the
              situation of the parties, the circumstances surrounding them
              when the contract was entered into and their subsequent
              conduct giving it a practical construction, but not their verbal

              12
                   Syllabus Point 1, Maddy v. Maddy, 87 W.Va. 581, 105 S.E. 803 (1921).
              13
                  Syllabus Point 1, Cotiga Development Co. v. United Fuel Gas Co., 147
W.Va. 484, 128 S.E.2d 626 (1962). See also, Syllabus Point 3 of Cotiga Development
(“It is not the right or province of a court to alter, pervert or destroy the clear meaning
and intent of the parties as expressed in unambiguous language in their written contract or
to make a new or different contract for them.”); Pocahontas Land Corp. v. Evans, 175
W.Va. 304, 308, 332 S.E.2d 604, 609 (1985) (“Where the intent of the parties is clearly
expressed in definite and unambiguous language on the face of the deed itself, the court is
required to give effect to such language and, ordinarily, will not resort to parole or
extrinsic evidence.”).
              14
                   Syllabus Point 1, State v. Herold, 76 W.Va. 537, 85 S.E. 733 (1915).


                                                9

              declarations. But, if a latent ambiguity is disclosed by such
              evidence, such for instance as that the terms of the writing are
              equally applicable to two or more objects, when only a certain
              one of them was meant, then prior and contemporaneous
              transactions and collocutions of the parties are admissible, for
                                                                         15
              the purpose of identifying the particular object intended.

              The parties dispute whether the 1977 deed is ambiguous. The mere fact

that parties do not agree to the construction of a deed does not alone render it ambiguous.

“The term ‘ambiguity’ is defined as language reasonably susceptible of two different

meanings or language of such doubtful meaning that reasonable minds might be uncertain
                                   16
or disagree as to its meaning.”         Whether a deed is ambiguous is a question of law to be
                           17
determined by the court.        “Where there is ambiguity in a deed, or where it admits of two
                                                                                   18
constructions, that one will be adopted which is most favorable to the grantee.”


              15
                 Syllabus Point 2, Snider v. Robinett, 78 W.Va. 88, 88 S.E. 599 (1916).
See also Syllabus Point 10, Paxton v. Benedum-Trees Oil Co., 80 W.Va. 187, 94 S.E. 472
(1917) (“Proper parol evidence is admissible to explain a latent ambiguity in a written
contract, and a latent ambiguity is one which arises not upon the words of the instrument,
as looked at in themselves, but upon those words when applied to the object sought to be
accomplished by the contract or the subject which they describe.”); Syllabus Points 2 and
3, Bank v. Catzen, 63 W.Va. 535, 60 S.E. 499 (1908) (“When, in attempting to apply
a deed to its subject matter or the parties thereto, a latent ambiguity of any kind is
disclosed, parol evidence is admissible to a limited extent, to show what was intended,
not only by the instrument considered as a whole, but also by particular words or clauses
thereof.” And, “Parol evidence, admissible for such purpose, is generally limited to the
subject-matter, the relation of the parties thereto, their prior and subsequent conduct, their
situation, and all the facts and circumstances existing at the time of the execution of the
instrument.”).
              16
              Syllabus Point 4, Estate of Tawney v. Columbia Nat. Res., L.L.C., 219
W.Va. 266, 633 S.E.2d 22 (2006).
              17
             See Syllabus Point 1, Berkeley Cty. Pub. Serv. Dist. v. Vitro Corp. of Am.,

152 W.Va. 252, 162 S.E.2d 189 (1968) (“The mere fact that parties do not agree to the

                                                                          Continued . . .

                                                 10

              The Yoho heirs assert that the 1977 deed is clear and unambiguous, and

that the deed conveyed only the surface to defendant McCardle. The Yoho heirs argue

the 1977 deed “excepted and reserved from this conveyance” the one-half interest in oil

and gas.    They argue that the phrase “this conveyance” can only mean the 1977

conveyance, and can only be interpreted to mean that the Yohos (and now their heirs)

retained ownership of the one-half oil and gas interest.

              Defendants Gastar and Ms. McCardle assert that the 1977 deed is

ambiguous and is reasonably susceptible to several interpretations.          In the opening

paragraphs of the deed, the Yohos conveyed to Ms. McCardle “the same property” they

bought in 1957. The opening paragraphs are in harmony with West Virginia law, which

presumes grantors in a deed intend to convey ownership of the whole interest that the
                                  19
grantors had power to dispose of.      Yet, in a later paragraph, the Yohos “further excepted


construction of a contract does not render it ambiguous. The question as to whether a
contract is ambiguous is a question of law to be determined by the court.”).
              18
                 Syllabus Point 6, Paxton v. Benedum-Trees Oil Co., 80 W.Va. 187, 94
S.E. 472 (1917). See also Syllabus Point 3, W.Va. Dep’t of Highways v. Farmer, 159
W.Va. 823, 226 S.E.2d 717 (1976) (“Where an ambiguity exists in a deed, the language
of such deed will be construed most strongly against the grantor.”); Sally-Mike Properties
v. Yokum, 175 W.Va. 296, 300, 332 S.E.2d 597, 601 (1985) (“[I]n cases
involving reservations and exceptions, any remaining doubt as to intent should be
resolved in the grantee’s favor.”).
              19
                 See W.Va. Code § 36-1-11 [1923] (“When any real property is conveyed
or devised to any person, and no words of limitation are used in the conveyance or
devise, such conveyance or devise shall be construed to pass the fee simple, or the whole
estate or interest, legal or equitable, which the testator or grantor had power to dispose of,
in such real property, unless a contrary intention shall appear in the conveyance or
will.”).


                                              11

and reserved” an undivided one-half interest in the oil and gas.         Because the later


paragraph is identical to the oil-and-gas paragraph in the Franklins’ 1957 deed, the

defendants argue that the intent of the Yohos is ambiguous: they might have been

referring to the one-half interest already reserved by the Franklins in 1957, or they might

have meant to keep for themselves the one-half interest.

              As further support for their assertion that the deed is ambiguous, the

defendants point out that the 1977 deed makes reference to two different “out-parcel”

transactions. In both out-parcel references, the Yohos used the words “excepted and

reserved” in a confusing manner. First, in 1905, a predecessor deeded 22.4 acres from

the original tract to another individual.    The 1977 deed says that the Yohos were

“[e]xcepting and reserving . . . and not intending hereby to convey” that same 22.4 acres.

Second, the 1977 deed “excepted and reserved a parcel of .800 acres” that the Yohos

conveyed to other individuals in 1970. The defendants argue that the Yohos could not

“except and reserve” to themselves these two out-parcels already owned by others.

Hence, when the Yohos said they “further excepted and reserved” from the 1977 deed a

one-half interest in the oil and gas, the defendants contend the Yohos might have been
                                                                                20
referring to the one-half interest already owned by the Franklins since 1957.


              20
                The defendants also assert that the words “excepted” and “reserved” were
used interchangeably by the Yohos in the 1977 deed, thereby creating further ambiguity.
At common law, an “exception” was defined as the “retention of an existing right or
interest, by and for the grantor, in real property being granted to another.” Black’s Law
Dictionary 683 (10th Ed. 2014). See also, Erwin v. Bethlehem Steel Corp., 134 W.Va.
900, 915, 62 S.E.2d 337, 346 (1950) (An exception exists when the grantor “withdraws
from the operation of the conveyance some part of the thing granted, which but for the
                                                                             Continued . . .
                                            12

              The defendants also offered the opinion of an expert on deeds. This expert


noted that the 1977 deed was a general warranty deed. Under West Virginia law, a

grantor who delivers a general warranty deed provides an actual warranty of the title and
                                                                                          21
has an obligation to defend the grantee against any claims regarding the property.

Because of the obligations attending a general warranty deed, the expert said it is

extremely important for a grantor to delineate with specificity what land interest is, and

what is not, being transferred by the deed. The defendant’s expert was of the opinion that

the exception and reservation of the one-half interest in oil and gas in the 1977 deed

referred solely to the interest owned by the Franklins. The expert concluded that the

Yohos included the exception and reservation as a way to limit their general warranty. In

other words, the language used by the Yohos established they were not giving a warranty




exception would have passed to the grantee under the general description[.]”). A
“reservation” is “[t]he creation of a new right or interest . . . by and for the grantor[.]”
Black’s Law Dictionary 1500 (10th Ed. 2014). See also, Erwin, 134 W.Va. at 915, 62
S.E.2d at 346 (A reservation is made when the grantor creates “some new thing to
himself issuing out of the thing granted, and not [before] in esse[.]”) “Though technically
there is a distinction between an exception and a reservation, they are often regarded
as synonymous.” Erwin, 134 W.Va. at 914, 62 S.E.2d at 345. We therefore decline to
consider this assertion by the defendants.

               As to the portion of the defendants’ appeal in which they support their
argument regarding the ambiguity created by the interchangeable use of the words
“exception” and “reservation,” the defendants cite as authority a 2012 order from the
circuit court in a different case. The defendants contend the circuit court violated
principles of stare decisis when it failed to apply holding in the 2012 order in its 2016
order in this case. We see no merit in the defendants’ position.
              21
                   See W.Va. Code § 36-4-2 [1923].


                                            13

of title to the one-half interest owned by the Franklins, but that they otherwise were


conveying their own one-half interest to Ms. McCardle.

              After reviewing the parties’ arguments, we find that the 1977 deed is

ambiguous. The deed was poorly drafted, the language of the document is uncertain, and

reasonable minds may disagree as to just what was conveyed. The deed does not express

the precise intentions of the Yohos regarding the one-half interest in the oil and gas

underlying the tract. The Yohos may have intended to retain ownership of the one-half

interest, as the Yoho heirs assert. The Yohos may have intended to convey ownership of

the one-half interest, as the defendants assert.           Or, this Court discerns a third

interpretation that neither party advanced: the Yohos may have intended to convey

ownership of only a one-quarter interest. Specifically, since the Yohos received a one-

half interest from the Franklins in 1957, when the Yohos stated that they “excepted and

reserved” a one-half interest from their 1977 conveyance, an accurate accounting might

be that they retained a half of a half, or a one-quarter interest in the oil and gas.

              Our ultimate conclusion, then, is that the 1977 deed is ambiguous. We

must therefore look to extrinsic evidence to understand the parties’ intent. Further,

because of the ambiguity introduced into the deed by the Yohos, our law compels us to

adopt the deed interpretation that is most favorable to the grantee, Ms. McCardle.

              To divine the intent of the parties to an ambiguous deed, and to give the

deed a practical construction, a court may consider the circumstances surrounding the

parties when the deed was negotiated and delivered, and may consider their subsequent



                                               14

           22
conduct.        The record contains sixty-two pages of land tax records showing the parties’

conduct before and after delivery of the 1977 deed. These tax records show that, before

the Yohos conveyed the property in 1977, the Yohos paid taxes on the one-half oil and
                23
gas interest.             After the Yohos conveyed the property to Ms. McCardle in 1977, Ms.

McCardle paid the taxes on the same one-half oil and gas interest while the Yohos

stopped paying the taxes altogether.

                     The parties agreed before the circuit court that no questions of material fact

existed on the declaratory judgment issue, and both parties asked for a declaratory

judgment as a matter of law in their favor. On its face and within its four corners, a

reasonable person can interpret the 1977 deed provision regarding ownership of the one-

half oil and gas interest in several diametrically opposed ways. We therefore find the

1977 deed provision to be ambiguous as a matter of law.                    We must construe that

provision in favor of the grantee (Ms. McCardle), against the grantors (the Yohos), and in

light of the parties’ conduct in paying taxes before and after delivery of the deed in April

1977. In sum, on the record presented by the parties, there is no doubt that the Yohos

intended to convey the oil and gas interest to Ms. McCardle in 1977.




                     22
                          Syllabus Point 2, Snider v. Robinett, 78 W.Va. 88, 88 S.E. 599 (1916).
                     23
                The record suggests that, at the same time, the Franklins also paid taxes
on the other one-half oil and gas interest.


                                                     15

             The circuit court therefore erred in granting a declaratory judgment in favor

of the heirs of Mr. Yoho. On this record, the circuit court should have entered judgment
                                                       24
in favor of the defendants, Gastar and Ms. McCardle.



                                        IV.

                                    CONCLUSION


             The circuit court erred in finding that the 1977 deed was unambiguous and

in granting a declaratory judgment in favor of the plaintiffs, Mr. Rine and the other Yoho

heirs. We therefore reverse the circuit court’s September 13, 2016, order, and remand the

case for entry of judgment in favor of the defendants, Gastar and Ms. McCardle.

                                                                 Reversed and remanded.




             24
                 The defendants also asserted on appeal that the circuit court should have
ruled in their favor on grounds of laches, estoppel, or adverse possession. Alternatively,
the defendants contend the circuit court should have dismissed the Yoho heirs’ action for
failure to join all individuals who may have had an interest in the oil and gas interest.
Our ruling makes these issues moot, and we decline to consider them.


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