PRESENT: Lemons, C.J., Goodwyn, Millette, Mims, Powell, and
Kelsey, JJ., and Koontz, S.J.


MALVA BAILEY
                                               OPINION BY
v.       Record No. 141702             JUSTICE S. BERNARD GOODWYN
                                             April 16, 2015
CONRAD SPANGLER, DIRECTOR OF
THE VIRGINIA DEPARTMENT OF
MINES, MINERALS AND ENERGY


                 UPON QUESTIONS OF LAW CERTIFIED BY
                  THE UNITED STATES DISTRICT COURT
                FOR THE EASTERN DISTRICT OF VIRGINIA

     Pursuant to Article VI, Section 1 of the Constitution of

Virginia and our Rule 5:40, we accepted the following certified

questions from the United States District Court for the Eastern

District of Virginia:

          (1) Did the enactment of Virginia Code section
     55.1-154.2 1 in 1981, see Acts of Assembly 1981, c.
     291, change the ownership of the shell, container
     chamber, passage, and space opened underground for
     the removal of the minerals to the owner of the
     minerals for coal severance deeds executed before
     July 1, 1981 that did not otherwise provide for
     ownership of the shell, container chamber, passage,
     and space opened underground for the removal of the
     minerals? In other words, does the presumption of
     mine void ownership created by the statute apply to
     deeds executed before July 1, 1981?



     1
       Because Code § 55.1-154.2 does not presently exist in the
Code of Virginia, we interpret the federal district court’s
reference to the relevant statute as a reference to Code § 55-
154.2. We note that all other references to this statute in
the federal district court’s order are to Code § 55-154.2.
          (2) If the answer is yes, and the presumption
     applies to coal severance deeds executed before July
     1, 1981, and assuming that a predecessor in interest
     executed a valid coal severance deed in 1887, then
     under Virginia law what, if any, ownership interest
     in the mine voids would a subsequent grantee surface
     owner take if she were deeded the land in 1983?
     Would that grantee have any rights to the mine void
     under Clayborn v. Camilla Red Ash Coal Co., 128 Va.
     383 (1920)?

                         Factual Background

     On May 5, 1887, George W. Sutherland and his wife severed

the mineral estate underlying their parcel of property in

Dickenson County, Virginia, from the surface estate 2 (Sutherland

surface estate) and conveyed “all the coal, iron, petroleum oil

and Gass [stet] and other ores and minerals lying and being in

upon and under all that certain tract of land” to the Virginia

Coal and Coke Company.   The severance deed did not specify who

would own the resulting mine void 3 after all of the ores and

minerals were removed.   On May 10, 1983, Malva Bailey (Bailey)




     2
       “‘Surface estate’ is a term intended generally to refer
to the rights of the owner of that portion of the original
tract of land that has not been severed by deeds granting
rights in the mineral estate or other resources of the tract of
land.” Levisa Coal Co. v. Consolidation Coal Co., 276 Va. 44,
57 n.5, 662 S.E.2d 44, 51 n.5 (2008).
     3
       As the federal district court indicates in its order
certifying the questions to this Court, “mine voids” are “those
spaces or passageways created from the removal of coal hundreds
of feet below the surface.” Bailey v. Spangler, No. 3:14-cv-
00556, at *1 (E.D. Va. filed Dec. 1, 2014).



                                 2
and her husband acquired ownership of a portion of the

Sutherland surface estate.

                      Procedural Background

     On July 7, 2014, Bailey filed a civil complaint in the

Circuit Court of the City of Richmond, asking the court for a

declaratory judgment in her favor, pursuant to 42 U.S.C. § 1983

(2012 & Supp. I 2013), regarding the alleged taking of her real

property by Conrad Spangler (Spangler), the Director of the

Virginia Department of Mines, Minerals and Energy.    She alleged

that by issuing mining permits authorizing Dickenson-Russell

Coal Company, LLC (Dickenson-Russell) “to conduct mine

operations” in the mine void beneath her property, Spangler

took her private property rights for private use, purportedly

pursuant to Code § 55-154.2. 4   Bailey asked the court to declare

“Chapter 695, Virginia Acts of Assembly 2012 Session, an act to

amend and reenact §§ 45.1-181 and 55-154.2 of the Code of

Virginia, relating to mine voids” unconstitutional both

facially and as applied because it deprived her of her private


     4
       Bailey’s constitutional challenge now pending before the
federal district court is directed at the 2012 Act that amended
and reenacted Code § 55-154.2. 2012 Acts ch. 695. Code § 55-
154.2 was originally enacted on July 1, 1981. 1981 Acts ch.
291. The federal district court’s certified questions pertain
to a provision of Code § 55-154.2 as enacted in 1981. Thus,
references to the statute in this opinion are to the 1981
version of the statute unless otherwise noted.




                                 3
property rights in the mine void underneath her property in

violation of the Fifth and Fourteenth Amendments to the

Constitution of the United States.

     Spangler removed the case to the United States District

Court for the Eastern District of Virginia.    He then filed a

motion to dismiss, arguing that Bailey did not own the mine

void beneath her property because Code § 55-154.2 divested her

predecessors in title of ownership of the mine void before

Bailey acquired her property in 1983. According to the federal

district court, under Spangler’s view, “the coal owner became

the actual owner [of the mine void] on July 1, 1981,” when Code

§ 55-154.2 went into effect.

                               Analysis

     In Clayborn v. Camilla Red Ash Coal Co., 128 Va. 383, 390,

105 S.E. 117, 119 (1920), a case of first impression, this

Court held that a surface estate owner retains ownership of a

mine void if the severance deed does not expressly convey the

mine void to the mineral estate owner.    Code § 55-154.2,

originally enacted by the General Assembly in 1981, is entitled

“Presumption regarding estate of owner of mineral rights” and,

in contravention to the holding in Clayborn, states as follows:

     Except as otherwise provided in the deed by which the
     owner of minerals derives title, the owner of minerals
     shall be presumed to be the owner of the shell,
     container chamber, passage and space opened
     underground for the removal of the minerals, with full


                                  4
     right to haul and transport minerals from other lands
     and to pass men, materials, equipment, water and air
     through such space. No injunction shall lie to
     prohibit the use of any such shell, container chamber,
     passage or space opened underground by the owner of
     minerals for the purposes herein described. The
     provisions of this section shall not affect
     contractual obligations and agreements entered into
     prior to July one, nineteen hundred eighty-one.

     Bailey argues that Code § 55-154.2 explicitly states that

it does not apply to deeds that were executed before the

statute became effective in 1981 and that Code § 55-154.2 did

not divest her predecessors in title of their ownership of the

mine void underlying the surface estate.   Moreover, Bailey

contends that interpreting Code § 55-154.2 to apply to deeds

that were executed before 1981 would give “retroactive effect”

to the statute, which is disfavored by this Court.   Because the

relevant severance deed in this instance was executed in 1887,

she argues that this Court’s rule from Clayborn applies and

that she owns the mine void beneath her portion of the

Sutherland surface estate.

     According to Spangler, the purpose of Code § 55-154.2 “was

to facilitate mineral extraction from mines” by removing the

ability of a surface owner, without an express grant of

ownership of a mine void, to impede mining operations.

Spangler contends that deeds are not “contractual obligations

and agreements” in the context of Code § 55-154.2.   He claims

that exempting severance deeds executed prior to July 1, 1981,


                               5
from the application of the statute would frustrate the purpose

of the statute because most severance deeds predate the

effective date of the statute.   Thus, he concludes that the

presumption of mine void ownership in Code § 55-154.2 applies

to the 1887 deed and that Bailey has no ownership interest in

the mine void below the surface estate she purchased in 1983.

                      Certified Question (1)

     The first certified question of law relates to whether the

presumption of mine void ownership created by Code § 55-154.2

applies to deeds executed prior to July 1, 1981.

     Our goal in statutory interpretation is to carry out the

General Assembly’s intent “as expressed by the language used

unless a literal interpretation of the language would result in

a manifest absurdity.”   Board of Supervisors v. Windmill

Meadows, LLC, 287 Va. 170, 179-80, 752 S.E.2d 837, 842 (2014)

(citation and internal quotation marks omitted).   We apply the

plain meaning of unambiguous statutory language.   Newberry

Station Homeowners Ass’n v. Board of Supervisors, 285 Va. 604,

614, 740 S.E.2d 548, 553 (2013).

     Virginia law does not favor retroactive application of

statutes.   Windmill Meadows, 287 Va. at 180, 752 S.E.2d at 843

(collecting cases).   For this reason, we interpret statutes to

apply prospectively “unless a contrary legislative intent is




                                 6
manifest.”   Id. (citation and internal quotation marks

omitted).    “[N]ew legislation will ordinarily not be construed

to interfere with existing contracts, rights of action, suits,

or vested property rights . . . .”    Harbour Gate Owners’ Ass’n

v. Berg, 232 Va. 98, 103, 348 S.E.2d 252, 255 (1986); see also

Gloucester Realty Corp. v. Guthrie, 182 Va. 869, 875, 30 S.E.2d

686, 688-89 (1944) (“The general rule is that no statute,

however positive in its terms, is to be construed as designed

to interfere with existing contracts, rights of action, or

suits, and especially vested rights, unless the intention that

it shall so operate is expressly declared.”).   Absent an

express manifestation of intent by the legislature, this Court

will not infer the intent that a statute is to be applied

retroactively.    See Ferguson v. Ferguson, 169 Va. 77, 87, 192

S.E. 774, 777 (1937) (“It is reasonable to conclude that the

failure to express an intention to make a statute retroactive

evidences a lack of such intention.”).

     The last sentence of Code § 55-154.2 exempts from the

statute’s application “contractual obligations and agreements

entered into prior to [July 1, 1981].”   Bailey asserts that a

deed is clearly a contractual obligation or agreement and that

the provisions in Code § 55-154.2 concerning the presumption of




                                 7
mine void ownership should not apply to deeds executed before

July 1, 1981.

     Spangler argues that the plain meaning of “contractual

obligations and agreements” in Code § 55-154.2 does not include

severance deeds.   Spangler also argues that the General

Assembly purposefully differentiated between deeds on the one

hand and contractual obligations and agreements on the other,

and he notes that the General Assembly uses the terms within

two sentences of each other in different ways.   It is pointed

out that the 1981 statute uses the word “deed” in the “except

as” provision but the words “contractual obligations and

agreements” in the “shall not affect” provision, and Spangler

asserts that the Court should assume that different terms in

the same statute are presumed to have different meanings.   See

Klarfeld v. Salsbury, 233 Va. 277, 284-85, 355 S.E.2d 319, 323

(1987).   Spangler concludes that the natural reading of Code §

55-154.2 is that the statute applies retroactively to all deeds

(unless the deed itself provides for ownership or use of the

mine void) but not to “contractual obligations and agreements

entered into prior to July 1, 1981.”

     The Court need not parse the language of the statute

because we are of the opinion that both interpretations reach

the same result.   If, as Bailey contends, a “deed” is a




                                8
“contractual obligation” or “agreement” within the context of

Code § 55-154.2, then the statute is explicitly nonretroactive.

However, even assuming as Spangler contends, that a “deed” is

not a “contractual obligation” or “agreement,” there remains no

manifest statement concerning the retroactive application of

the statute to deeds.

     We may not infer the retroactive application of Code § 55-

154.2 to deeds executed prior to July 1, 1981, based upon the

statute’s express exemption of contractual obligations and

agreements entered into prior to that date.   Also, we are

unpersuaded by the argument that exempting deeds executed prior

to the statute’s enactment will unduly limit the statute’s

application.   That result in itself is not indicative of a

contrary intent by the General Assembly because the legislature

could have expressly stated that the statute retroactively

applies to deeds, if it had desired to do so.

     Nothing in the language of Code § 55-154.2 indicates a

manifest legislative intent to retroactively apply the

presumption of mine void ownership to deeds executed before the

date the statute was enacted.   Therefore, we hold that the

presumption of mine void ownership created by Code § 55-154.2

does not apply to deeds executed before July 1, 1981.

     The first certified question is thus answered in the

negative.


                                9
                     Certified Question (2)

     Having answered Certified Question (1) in the negative,

the Court concludes that Certified Question (2) is now moot.


                 Certified Question (1)answered in the negative.




                               10
