                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


Kenneth E. Cooper and Shirley Cooper, Petitioners Below,
                          FILED
Petitioners                                                                   February 16, 2016

                                                                                  RORY L. PERRY II, CLERK
                                                                                SUPREME COURT OF APPEALS
vs) No. 14-0341 (Gilmer County 13-C-3)                                              OF WEST VIRGINIA



Edward Messenger and Cindy Messenger, Respondents Below,
Respondents


                               MEMORANDUM DECISION

        Petitioners Kenneth E. Cooper and Shirley Cooper, by counsel Daniel R. Grindo, appeal
the Circuit Court of Gilmer County’s February 27, 2014, order giving respondents the exclusive
use and enjoyment of the free gas provided for under the terms of a 1973 oil and gas lease.
Respondents Edward Messenger and Cindy Messenger, by counsel Jeffery A. Davis, filed their
response in support of the circuit court’s order. On appeal, petitioners argue that the circuit court
erred in determining that the contract was unambiguous, failing to consider extrinsic evidence to
interpret the ambiguous contract, and ruling in favor of respondents despite the fact that the
evidence did not support such a ruling.

        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 circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

        On April 25, 1973, Everett L. Stoneking1 entered into an oil and gas lease with
Stonestreet Lands Company. The lease provided for unlimited free gas for one dwelling, and at
that time, the only dwelling on the property was the original Stoneking house.

       On July 30, 1998, Petitioners purchased approximately 130 acres of property from Norma
Jean Miller. The deed conveyed the property from Ms. Miller to petitioners and specifically
reserved a life estate for Everett L. Stoneking and his wife, who resided in the original Stoneking
dwelling house standing on the property. By deed, dated March 3, 2000, Mr. Stoneking
conveyed to petitioners all of his life estate in the subject property. Petitioners erected a separate
dwelling house on the property where they currently reside.


       1
       The parent tract of land was originally part of a 230 acre tract of land known as the
“Stoneking Property.”
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       On January 25, 2005, petitioners entered into a land contract with respondents for the
purchase of the subject property consisting of the two-story Stoneking farm house and a two-car
garage, on approximately one acre situated on Spruce Run in Gilmer County, West Virginia. The
purchase price was $48,000 to be paid in 120 installments of $400 each. On or about March 1,
2005, respondents began living in the original Stoneking dwelling house, having entered into the
land contract at issue in January. The land contract, prepared by petitioners, was silent as to the
free gas but did include a provision that respondents were to pay the cost of all utilities,
insurance, and taxes associated with the property. After the purchase of the Stoneking dwelling
house, a dispute arose between the parties as to the usage of the free gas.

        On December 6, 2013, the circuit court held a bench trial and took testimony wherein
respondents acknowledged that petitioners had permitted them to use free gas for a period of
time and in exchange, respondents had been paying petitioners’ gas bill. Petitioners testified that
the arrangement had been made to allow respondents to pay less for their gas usage until such
time as they improved the insulation and heat efficiency of the original Stoneking dwelling
house. The circuit court found that the land contract was complete and unambiguous and because
the contract did not specifically reserve the natural gas rights, the rights were transferred to
respondents as a result. By order entered on February 27, 2014, the circuit court found that
respondents are entitled to the exclusive use and enjoyment of the free gas as provided for under
the terms of the 1973 oil and gas lease. It is from this order that petitioners appeal.

        We have previously established the following standard of review: “[w]e have stated that
the interpretation of a deed, which is not dependent upon extrinsic evidence, is a question of law
for a court and not a jury. Accordingly, we review the circuit court’s ruling de novo.” Faith
United Methodist Church v. Morgan, 231 W.Va. 423, 745 S.E.2d 461 (2013). We have further
stated that in construing a written contract, “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. Id. at 444, 745 S.E.2d at
482.

        Petitioners’ first assignment of error challenges the circuit court’s conclusion that the
land contract was unambiguous. Petitioners argue that that land contract is silent as to the
transfer of mineral rights and that respondents make no claim that the land contract intended to
transfer ownership of the mineral rights. Petitioners further argue that the land contract did
include a provision that respondents were to pay the cost of all utilities and that the inclusion of
the provision indicates that petitioners did not intend to transfer the right to the use of free gas.

         Upon careful review of the record before us, we find no error. The language of the 1973
oil and gas lease states that one dwelling house on the land may enjoy unlimited usage of gas per
year. It is undisputed that at the time this oil and gas lease was entered into, the only home on the
land was the Stoneking dwelling house which has continuously enjoyed the unlimited use of free
gas from the time of the lease until the present day. The circuit court observed that when
petitioners acquired the life estate of Everett L. Stoneking in March of 2000, the Stoneking
dwelling house was still the house using the free gas. The circuit court further observed that
petitioners neither moved into the Stoneking dwelling house nor contracted to have the right to



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use the free gas transferred to their new home, adjacent to the Stoneking dwelling house. Instead,
petitioners chose to continue to pay for their own gas usage.

        An examination of the land contract in question supports the circuit court’s finding that
its language is clear and unambiguous with respect to the rights of the parties under the contract.
There is no language within the land contract from which the circuit court could have reasonably
concluded that petitioners reserved a right to the free gas or to find that they did not intend for
the access to, or use of, the free gas to pass to respondents under the contract. We have
previously stated that in construing a written contract, “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. Id. The circuit
court also found that the phrase “all utilities” includes only those servicing the property in which
respondents would be expected to pay for their usage. Based on this interpretation, the circuit
court found that it would be unjust to extend respondents’ contractual obligation to include
payment for natural gas which has been supplied free of charge to respondents’ home for over
forty years. As such, the land contract must be enforced as to its original tenor.

        As to petitioners’ argument that the circuit court erred in not considering extrinsic
evidence to interpret the ambiguous contract, we find no error. As addressed above, the evidence
established that the land contract was clear and unambiguous with respect to the rights of the
parties. As such, “[e]xtrinsic evidence will not be admitted to explain or alter the terms of a
written contract which is clear and unambiguous. If a writing is not ambiguous, it must speak for
itself by its words, without aid of any oral evidence[.]” Paxton v. Benedum-Trees Oil Co., 80
W.Va. 187, 94 S.E. 472 (1972).

        Petitioners argue that the circuit court erred in ruling in favor of respondents because the
evidence presented did not support such a ruling and ignored that the original oil and gas lease
does not preclude petitioners from changing which house is being serviced by the free gas.
Additionally, petitioners argued that the lease indicated that “a house” on the land receive free
gas. We do not agree. As addressed above, there is no language within the land contract from
which the circuit court could have reasonably concluded that petitioners reserved a right to the
free gas or to find that they did not intend for the access to, or use of, the free gas to pass to
respondents under the contract. Furthermore, the circuit court found that the gas had been
provided, free of charge, to the same house for over forty years. The circuit court also found that
petitioners had the ability to have the line providing free gas transferred to their home at any time
prior to the existing land contract with respondents but chose not to do so. As such, the original
land contract must be enforced.

       For the foregoing reasons, the circuit court’s February 27, 2014, final order is hereby
affirmed.



                                                                                            Affirmed.




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ISSUED: February 16, 2016

CONCURRED IN BY:

Chief Justice Menis E. Ketchum
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Allen H. Loughry II

DISSENTING:
Justice Robin Jean Davis




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