J. A18021/16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

BLACK WOLF ROD & GUN CLUB, INC., :           IN THE SUPERIOR COURT OF
                                 :                 PENNSYLVANIA
                   Appellant     :
                                 :
               v.                :
                                 :
INTERNATIONAL DEVELOPMENT        :
CORPORATION, PENNLYCO, LTD.,     :
SOUTHWESTERN ENERGY              :                No. 1972 MDA 2015
PRODUCTION COMPANY, AND          :
VIRGINIA ENERGY CONSULTANTS, LLC :


                Appeal from the Order Entered October 19, 2015,
               in the Court of Common Pleas of Lycoming County
                          Civil Division at No. 15-00411


BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., AND STEVENS,* P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:              FILED OCTOBER 25, 2016

     Appellant Black Wolf Rod & Gun Club, Inc. (“Black Wolf”), appeals from

the October 19, 2015 order entered in the Court of Common Pleas of

Lycoming County that granted the preliminary objections in the nature of a

demurrer of appellees International Development Corporation (“IDC”);

Pennlyco, Ltd. (“Pennlyco”); and Southwestern Energy Production Company




* Former Justice specially assigned to the Superior Court.
J. A18021/16


(“SWN”)1 (collectively, “appellees”) and dismissed Black Wolf’s complaint

with prejudice.2 We affirm.

      The trial court set forth the following in its October 19, 2015 order,3

granting preliminary objections in the nature of a demurrer:

                   On February 11, 2015, Black Wolf filed a one
            count complaint seeking to quiet title pursuant to
            Pa.R.C.P. 1061 and the Declaratory Judgment Act,
            42 Pa.C.S.A. §§ 7532, et seq. as to the oil, gas and
            other minerals (“Subsurface Rights”) underlying
            property known as warrant numbers 1602 and 1605,
            consisting of about 1,717.37 acres located in Pine
            and Jackson Townships in Lycoming County
            (collectively, “Property”).[Footnote 2]    Black Wolf
            claims ownership in fee simple to the Property by
            virtue of a deed from B.L. Miller, et ux., et al[.] to
            Black Wolf dated April 26, 1926, recorded in the
            Lycoming County Recorder of Deeds at Deed
            Book 264, Page 395 (“1926 Deed”). Black Wolf’s
            source of title to the Property arises from a serious
            [sic] of deed transfers, summarized as follows.

                     [Footnote 2] SWN references the
                     Property as consisting of about
                     1,958.5 acres.

                  1893 Deed from Samuel P. Davidge,
                  et[] ux., et al., to Elk Tanning Co.[;]




1
  The record reflects that effective November 24, 2014, Southwestern
Energy Production Company became SWN Production Company, LLC.
2
  The record reflects that Virginia Energy Consultants, LLC, did not join in
the preliminary objections of IDC, Pennlyco, and SWN.
3
 The record reflects that the trial court dated the order granting preliminary
objections in the nature of a demurrer October 16, 2015, but filed the order
on October 19, 2015.


                                    -2-
J. A18021/16


               1894 Treasurers Deed (tax sales) to
               G.W. Childs as to a portion of Warrant
               No. 1605;

               1898 Quit Claim Deed transferring above
               tracts from G.W. Childs to Elk Tanning
               Co.;

               1903 Deed from Elk Tanning Co. to
               Central Pennsylvania  Lumbar [sic]
               Company ([“]CPLC[”]);

               1906 Treasurer Deed (tax sale) to
               Calvin H. McCualey, Jr., as to Warrant
               No. 1602;

               1908 Treasurer Deed (tax sale) to
               Calvin H. McCualey, Jr. as to Warrant
               No. 1605;

               1908 Quitclaim Deed from Calvin H.
               McCualey, Jr., et[] ux. to CPLC as to
               Warrant 1602;

               1910 Quitclaim Deed from Calvin H.
               McCualey, Jr., et[] u[x]. to CPLC as to
               Warrant 1605;

               1925 Deed from CPLC to R.N. Miller,
               et[] ux., et[] al.;

               1926 Deed from B.L.        Miller,   et ux.,
               et al[.] to Black Wolf.

                The [1893] Deed provides the following in
          pertinent part.

                     Excepting and reserving, however
               from this conveyance on all the lands
               described above for the benefit of the
               said parties of the first part, their heirs
               and assigns forever, all minerals, oils and
               gases in, upon or under said lands with
               the perpetual right of ingress egress and


                                  -3-
J. A18021/16


                regress over, upon and across said lands
                for the purpose of mining, boring for and
                removing said minerals, oils or gases.

          The parties agree that the 1893 Deed from
          Samuel P. Davidge created a horizontal severance of
          the Subsurface Rights. However, since the severed
          oil and gas interests were not separately assessed
          from the surface of the property and since the
          Property constituted unseated lands pursuant to An
          Act Directing the Mode of Selling Unseated Lands for
          Taxes, Act of 3 April 1804, 4 Sm. L. 201, as
          amended (“1804 Act”), the effect of the tax sales
          under the 1804 Act was that the horizontal
          severance was extinguished by the tax sales of the
          Property to Calvin H. McCauley [sic] and the surface
          and subsurface estates of the Property merged. As a
          result, Warrant 1602 and Warrant 1605 were
          conveyed to CPLC with the Subsurface Rights in
          1908 and 1910 respectively.

                All parties claim title to the Property from CPLC
          and all parties agree CPLC owned the Subsurface
          Rights to the Property by the conveyances in 1908
          and 1910. [Appellees] contend that the 1925 Deed
          severed and reserved the Subsurface Rights in and
          under the Property to CPLC in the same manner that
          the 1893 Deed did for Samuel P. Davidge.
          Black Wolf contends that the 1925 Deed from CPLC
          to R.N. Miller, et[] ux., et[] al. did not effectuate a
          severance of the Subsurface Rights because the
          1925 Deed excepted and reserved the Subsurface
          Rights only “as fully as” those rights were excepted
          and reserved by the 1893 Deed and the Subsurface
          Rights excepted and reserved in the 1893 Deed were
          subsequently extinguished by the tax sales of 1908
          and 1910.

                [The] 1925 Deed from CPLC to R.N. Miller,
          et[] ux., et[] al. states the following[:]

                THE two pieces of land above described
                being part of the same lands conveyed
                by Samuel P. Davidge et[] al. to the


                                   -4-
J. A18021/16


               Elk Tanning Company by deed dated
               December 7th, 1893 recorded in the
               office for the Recording of deeds in and
               for the County of Lycoming in Deed
               Book 600 No. 139 at page 259 on
               January 19th, 1894 and part of the same
               lands conveyed by the Elk Tanning
               Company to the Central Pennsylvania
               Lumber Company by deed dated May 25,
               1903, recorded in the office for the
               recording of deeds in and for the County
               of Lycoming in Deed Book 183 at
               page 328 on June 12, 1903.              This
               conveyance is subject to all the
               reservations in said last recited deed.

               EXCEPTING AND RESERVING, however,
               from this conveyance on all the lands
               above described, all minerals, oils, and
               gases in, upon or under said lands, with
               the perpetual right of ingress, egress and
               regress over, upon and across said lands,
               for the purpose of mining, boring for and
               removing said minerals, oils, or gases
               as fully as said minerals, oils and gases
               and rights were excepted and reserved in
               deed from Samuel P. Davidge et[] al. to
               the    Elk   Tanning     Company     dated
                           th
               December 7 , 1893 above recited.

               ALSO excepting and reserving unto the
               Central Pennsylvania Lumber Company,
               its successors and assigns all necessary
               rights of way for wagon roads, sled
               roads,   log   slides   and    tramroads
               through[,] over and across the lands
               above described for the purpose of
               getting to and from other lands now
               owned by the Central Pennsylvania
               Lumber Company, or hereafter acquired
               by said Lumbar [sic] Company.

               THIS conveyance is made and delivered
               in pursuance of an agreement between


                                  -5-
J. A18021/16


                the Central Pennsylvania Lumbar [sic]
                Company, of the first part and R.N. Miller
                and B.L. Miller, co-partners of the second
                part, dated June 24, 1920. (emphasis
                added)

                Black Wolf contends ownership of the
          Subsurface Rights by the conveyance by the 1926
          Deed from B.L. Miller to them. [Appellees] contend
          that the Millers never had ownership of the
          Subsurface Rights under the 1925 Deed and
          therefore had no interest to convey to Black Wolf.
          Instead, [appellees] claim ownership of the
          Subsurface Rights through a serious [sic] of deed
          transfers, beginning with the 1942 Deed from CPLC.
          Pennlyco claims ownership of an undivided
          12.5% interest in the Subsurface Rights to the
          Property by Deed in 1984 and corrective deed in
          1992 from Kenneth F. Yates to Pennlyco. Similarly,
          IDC claims ownership of an undivided 87.5% interest
          in the Subsurface Rights to the Property by Deed
          dated August 3, 2005 from Gerard J. Barrios,
          Administrator for the Estate of Clarence W. Moore to
          IDC. Finally, SWN and Virginia Energy claim an
          interest in the Subsurface Rights underlying the
          Property pursuant to an Oil and Gas Lease between
          IDC and Virginia Energy, dated December 1, 2005,
          recorded at Book Volume 6197, Page 327.

                Preliminary Objections

                On March 5, 2015, IDC filed a preliminary
          objection in the nature of a demurrer to the
          complaint in essence contending that the deeds of
          record established IDC’s interest in the Subsurface
          Rights by establishing that the Subsurface Rights
          were severed by the 1925 Deed and reserved by
          CPLC and subsequently transferred to them through
          a chain of title in the amount of 87.5%.             On
          March 18, 2015, [SWN] filed preliminary objections
          in the nature of a demurrer on the grounds that the
          action must be commenced by an ejectment action
          rather than a quiet title action, that Black Wolf failed
          to name and joined [sic] all necessary parties and


                                   -6-
J. A18021/16


            that the exception and reservation language in the
            1925 Deed reserved the Subsurface Rights in and
            under the Property to CPLC, from whom a chain of
            title resulted in their lease to the rights.   On
            March 26, 2015, [Pennlyco] joined the preliminary
            objections of IDC and SWN.

Order of court, 10/16/15, at 1-5.

      Appellant raises the following issue for our review:

            Did the Trial Court err when it sustained a
            preliminary objection to the Complaint raised
            pursuant to Pa.R.A.P. [sic] 1028(a)(4) and dismissed
            the Complaint with prejudice based upon the Trial
            Court’s conclusion that a provision addressing oil,
            gas and minerals in a Deed executed in 1925 was an
            affirmative exception and reservation of the oil, gas
            and minerals underlying the property at-issue, when
            such conclusion was not supported by the language
            in the instrument itself or the circumstances
            surrounding its execution?

Appellant’s brief at 4.

      We set forth our standard of review, as follows:

            When reviewing the dismissal of a complaint based
            upon preliminary objections in the nature of a
            demurrer, we treat as true all well-pleaded material,
            factual averments and all inferences fairly deducible
            therefrom. Where the preliminary objections will
            result in the dismissal of the action, the objections
            may be sustained only in cases that are clear and
            free from doubt. To be clear and free from doubt
            that dismissal is appropriate, it must appear with
            certainty that the law would not permit recovery by
            the plaintiff upon the facts averred.       Any doubt
            should be resolved by a refusal to sustain the
            objections. Moreover, we review the trial court’s
            decision for an abuse of discretion or an error of law.




                                     -7-
J. A18021/16


B.N. Excavating, Inc. v. PBC Hollow-A, L.P., 71 A.3d 274, 277-278

(Pa.Super. 2013) (citations omitted). “A demurrer should be sustained only

when the complaint is clearly insufficient to establish the pleader’s right to

relief.” Id. at 278 (citation omitted).

      Here, no dispute exists that the 1893 deed from Samuel P. Davidge to

Elk Tanning Company horizontally severed the land and that the language of

that conveyance created a subsurface estate in favor of Davidge and

conveyed a surface estate to Elk Tanning Company. The parties also agree

that under then-existing law, the subsequent tax sales in 1906 and 1908

merged the surface and subsurface estates. See Herder Spring Hunting

Club v. Keller, 93 A.3d 465 (Pa.Super. 2014), affirmed, 2016 Pa. LEXIS

1512 (Pa. July 19, 2016) (confirming that under the tax plan in place in the

1800s, a tax sale of land, absent proof of payment of tax within two years,

caused the surface and subsurface land rights to merge).         Therefore, as

Black Wolf concedes, “the core question in the case at-bar regrading [sic]

the ownership of the oil, gas and minerals underlying the Property, is

focused on evaluating a single instrument:     the 1925 Deed.”        (Appellant’s

brief at 14.)

      When construing a deed,

            a court’s primary object must be to ascertain and
            effectuate what the parties themselves intended.
            The traditional rules of construction to determine
            that intention involve the following principles. First,
            the nature and quantity of the interest conveyed
            must be ascertained from the deed itself and cannot


                                      -8-
J. A18021/16


             be orally shown in the absence of fraud, accident or
             mistake. We seek to ascertain not what the parties
             may have intended by the language but what is the
             meaning of the words they used. Effect must be
             given to all the language of the instrument, and no
             part shall be rejected if it can be given a meaning. If
             a doubt arises concerning the interpretation of the
             instrument, it will be resolved against the party who
             prepared it . . . . To ascertain the intention of the
             parties, the language of a deed should be interpreted
             in the light of the subject matter, the apparent
             object or purpose of the parties and the conditions
             existing when it was executed.

Pa. Servs. Corp. v. Tex. E. Transmission, LP, 98 A.3d 624, 630

(Pa.Super. 2014), quoting Consolidation Coal Co. v. White, 875 A.2d 318,

326 (Pa.Super. 2005). Whether a deed is ambiguous is a question of law for

the court.   Pa. Elec. Co. v. Waltman, 670 A.2d 1165, 1169 (Pa.Super.

1995).   When interpreting an unambiguous deed, a court is limited to the

deed itself and cannot consider parol evidence. Id.

     Here, Black Wolf complains that the language of the subsurface rights

clause in the 1925 deed was ineffective to horizontally sever the property

and reserve the subsurface rights in favor of the grantor, CPLC, for four

reasons. First, Black Wolf claims that because the 1925 subsurface rights

clause referred back to the 1893 subsurface rights clause and the 1893

subsurface rights were extinguished and merged with surface rights as a

result of the subsequent tax sales and were, therefore, nonexistent, the

1925 subsurface rights clause that referred back to that nonexistent 1893

clause renders the 1925 subsurface rights clause ineffective. Second, Black



                                      -9-
J. A18021/16


Wolf contends that because the 1925 subsurface rights clause referred back

to and used language from the 1893 deed, the 1925 subsurface rights clause

demonstrates CPLC’s intent to reserve the subsurface rights in accordance

with the 1893 conveyance which was a nullity and, therefore, renders the

1925 subsurface rights reservation a nullity. Third, Black Wolf argues that

because the 1925 access road clause is unambiguous and the subsurface

rights clause is ambiguous, this is “proof that the intent was not to

affirmatively except and reserve those interests.” (Appellant’s brief at 25.)

Finally, Black Wolf complains that because the 1925 access road clause

contained words of heirship and the 1925 subsurface rights clause did not,

this is “proof” that the 1925 subsurface rights clause “did not function as an

affirmative exception and reservation of the oil, gas and minerals.” (Id. at

29.)

       Transfer of the surface estate with the intent to retain rights in the

mineral estate requires explicit deed language.   See Sheaffer v. Caruso,

676 A.2d 204 (Pa. 1996) (holding that by using the term “reserving,” [in the

deed] [the grantor] created in herself an estate in the oil and gas”).

Language such as the following has been held to be sufficient to reserve a

subsurface estate:

              EXCEPTING AND RESERVING from First Tract and
              Second Tract all the coal and mining rights and the
              oil and gas as fully as the same have been excepted
              and reserved or conveyed by former owners.

Id. at 205.


                                    - 10 -
J. A18021/16


      Here, in construing the plain meaning of the 1925 deed, the trial court

concluded that the subsurface rights clause undoubtedly reserved subsurface

rights as a result of the “excepting and reserving” language and that by

using the words “as fully as,” the grantor intended to reserve those

subsurface rights in the same manner as was done by the grantor in the

1893 deed. Our supreme court’s decision in Sheaffer, supra, supports the

trial court’s interpretation of that language.

      Additionally, the trial court interpreted the access road clause

contained in the 1925 deed as creating an easement. Although Black Wolf

takes issue with inclusion of words of heirship within that clause while those

words are excluded from the subsurface rights clause, the trial court

recognized that the 1893 deed created no easement.       As such, unlike the

subsurface rights clause, CPLC was unable to refer back to the 1893 deed to

except and reserve certain rights of way as fully as were excepted and

reserved in a prior estate.

      Although Black Wolf has advanced many theories as to what the

grantor may have intended by the 1925 deed language, the trial court

properly ascertained the meaning of the words used in the deed.

Consequently, it is certain that upon the facts averred, the law would not

permit Black Wolf to recover. Therefore, the trial court neither abused its

discretion nor committed an error of law when it dismissed Black Wolf’s

complaint based upon preliminary objections in the nature of a demurrer.



                                     - 11 -
J. A18021/16


     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/25/2016




                          - 12 -
