                             UNPUBLISHED

                 UNITED STATES COURT OF APPEALS
                     FOR THE FOURTH CIRCUIT


                             No. 15-1446


JUSTIN D. THOMAS; IRENE S. THOMAS,

               Plaintiffs – Appellants,

          v.

CARMEUSE   LIME   &  STONE,     INCORPORATED;   O-N   MINERALS
(CHEMSTONE) COMPANY,

               Defendants – Appellees,

          v.

THOMAS M. HELMS, SR.,

               Intervenor/Defendant – Appellee.



                             No. 15-1447


JUSTIN D. THOMAS; IRENE S. THOMAS,

               Plaintiffs,

          v.

CARMEUSE   LIME   &  STONE,     INCORPORATED;   O-N   MINERALS
(CHEMSTONE) COMPANY,

               Defendants – Appellants,

          v.

THOMAS M. HELMS, SR.,

               Intervenor/Defendant – Appellee.
Appeals from the United States District Court for the Western
District of Virginia, at Roanoke.      Glen E. Conrad, Chief
District Judge. (7:12-cv-00413-GEC)


Argued:   January 27, 2016              Decided:   March 30, 2016


Before DUNCAN and DIAZ, Circuit Judges, and Loretta C. BIGGS,
United States District Judge for the Middle District of North
Carolina, sitting by designation.


Vacated in part and affirmed in part by unpublished opinion.
Judge Duncan wrote the opinion, in which Judge Diaz and Judge
Biggs joined.


ARGUED: Jeffery Scott Sexton, Scott Andrew Stephenson, GENTRY
LOCKE, Roanoke, Virginia, for Appellants. Robert Cameron Hagan,
Jr., Fincastle, Virginia, for Intervenor/Appellee. Thomas Moore
Lawson, LAWSON & SILEK, P.L.C., Winchester, Virginia, for
Appellees/Cross-Appellants.  ON BRIEF: Joshua E. Hummer, LAWSON
& SILEK, P.L.C., Winchester, Virginia, for Appellees/Cross-
Appellants.


Unpublished opinions are not binding precedent in this circuit.




                                2
DUNCAN, Circuit Judge:

      This      appeal        involves        a      trilateral          dispute      over

approximately        150    acres    of    limestone-rich         land    in     Botetourt

County, Virginia (“the Property”).                  Plaintiffs-Appellants Justin

and   Irene    Thomas       own     the    surface       rights   to     the     Property.

Defendants-Appellees          Carmeuse      Lime     &   Stone,    Inc.    (“Carmeuse”)

and Thomas M. Helms share ownership of the Property’s mineral

estate. 1    The Thomases disagree with Carmeuse and Helms about the

extent of their mineral rights and about the extent to which

Carmeuse and Helms may disturb the Property’s surface in order

to extract the stone underneath.                    Carmeuse and Helms disagree

with each other about what portion of the mineral estate each of

them owns.

      In     ruling    on     the     parties’       cross-motions         for     summary

judgment, the district court decided four specific issues that

are before us on appeal.                  First, the district court declared

unenforceable a restriction in an 1849 deed that purports to

prohibit     the     owners    of    the    Property’s       mineral       estate     from

quarrying in the vicinity of a historic house and yard on the

Property      (the    so-called       “Yard       Restriction”).           Second,     the

      1Title to Carmeuse’s portion of the mineral estate is
actually held by Carmeuse’s wholly owned subsidiary, O-N
Minerals (Chemstone) Co., which is also a Defendant–Appellee. We
use the term “Carmeuse” to refer collectively to both Carmeuse
Lime & Stone, Inc. and O-N Minerals (Chemstone) Co., as well as
Carmeuse’s predecessor corporations.


                                             3
district court held that Carmeuse and Helms are entitled to use

modern     quarrying       techniques       to     extract       minerals       from     the

Property.         Third,    the    district       court    held    that       the    mineral

estate owned by Carmeuse and Helms includes all of the stone on

the Property, rejecting the Thomases’ contention that Carmeuse

and Helms own only a particular vein of limestone that runs

through     the    Property’s       southwestern          portion.            Fourth,    the

district    court        determined     how      ownership        of    the     Property’s

mineral estate is divided between Carmeuse and Helms.

     For    the     reasons       stated    below,        we    vacate    the       district

court’s holding that the Yard Restriction is unenforceable, and

affirm as to the remaining issues.



                                            I.

     The    Thomases       purchased       the    Property’s      surface       estate    in

2002.      At     the    time,    Carmeuse       already       owned    and    operated    a

limestone quarry across the road from the Property.                                 In their

pre-purchase        investigation,          the     Thomases           discovered       that

Carmeuse    also        owned    some   portion     of     the    Property’s         mineral

estate, but were told by Carmeuse that it had no immediate plans

to do any quarrying on the Property.

     An eighteenth-century stone house sits on the northwestern

portion of the Property.                The Thomases initially intended to

renovate the house so that they could use it as their primary

                                             4
residence.       That plan never came to fruition, partly because the

Thomases were unable to overcome opposition from Carmeuse to

their efforts to have the property rezoned as residential, and

partly because, in 2007, the family moved to North Carolina so

that    Justin     Thomas     could     take       a    job       there.         Currently,         the

Thomases use the Property and the stone house for recreational

purposes.

        During     the      decade      after          the    Thomases           purchased          the

Property’s       surface      estate,      Carmeuse’s             plans    for     the    Property

evolved, and by 2012, Carmeuse had begun preparing to extract

the    limestone       it    owned    on    the        Property.           Upon    learning          of

Carmeuse’s       intentions,         the    Thomases          initiated          this     lawsuit,

seeking several declaratory judgments to clarify the nature of

Carmeuse’s       rights      to   the      Property.               Although       the     Thomases

initially sued only Carmeuse, Helms intervened to protect his

interest in the Property’s mineral estate.



                                              II.

       The     parties’      disputes       center       on       how     to    interpret          deed

language       from      three    transactions               in     the        history    of       the

Property’s        ownership:         (1)     the        initial         severance         of        the

Property’s       mineral      estate       from     its       surface          estate    in    1849,

(2) the      mineral     estate’s      sale       at    public       auction       in    1901      and

1902,    and     (3)   the    conveyances          of    the       mineral       estate       to    its

                                               5
current owners, Helms and Carmeuse, in 1992.                    In this section,

for each of those three transactions, we set out the specific

language over which the parties disagree, explain the parties’

disagreements, and discuss the district court’s resolution of

each.

                                            A.

       We discuss first the initial severance of the Property’s

mineral estate from its surface estate in 1849.                     Before 1849,

Greenville B.W. Reynolds owned both mineral and surface rights

to a large, contiguous swath of land, of which the Property was

a part.        In 1849, Reynolds granted to James S. Wilson full

rights (surface and mineral) to much of that land.                       But as to

one 200-acre tract (“the Reynolds Tract”), Reynolds retained the

surface estate for himself, conveying only the mineral estate to

Wilson.        The 200-acre Reynolds Tract is essentially the same

piece of land as the 150-acre Property; it simply includes an

additional 50 acres for which the surface estate was split off

at   some     point    before    the     Thomases   purchased    the   Property’s

surface estate in 2002.                Carmeuse and Helms are the present

owners    of    the    mineral     estate    underlying   the   entire    Reynolds

Tract.

       The 1849 deed memorializing the Reynolds–Wilson transaction

described the mineral estate conveyed to Wilson as containing

“all    the    stone   or   rock    of   every   kind,    and   particularly   all

                                            6
limestone, or quarries of limestone, or other kind of stone, in

and upon every portion” of the Reynolds Tract.                             J.A. 244.        So

that   Wilson      could    access      that       mineral    estate,      the    1849    deed

further      granted      him    “the    privilege          . . .    of    free    ingress,

egress, and regress, at all times, to enter and quarry, and take

the [stone] away, or to construct kilns and burn the same into

lime” on the Reynolds Tract.               Id.

       The   1849    deed       qualified      these    broad       mineral      and   access

rights,      however,      through      several        other    provisions        meant    to

protect the interests of Reynolds and his heirs in the surface

estate.      One    of   those     provisions         was    what    the    parties       have

referred to as the “Yard Restriction,” which reads as follows:

       [I]t is also agreed and understood between the parties
       that the said Wilson, his heirs or assigns, is not to
       blast, or quarry, or take away, any stone within the
       enclosure of the yard attached to the said Reynolds’
       present dwelling house; this provision is inserted to
       protect the family of the said Reynolds, and of his
       heirs or assigns, or other persons who may be in the
       occupancy of the house, from annoyance.

J.A. 240.      It is unclear whether the stone house that currently

sits on the Property is the “dwelling house” referred to in the

Yard Restriction.           It is also unclear how large “the enclosure

of the yard attached to” the house was in 1849.

       The parties have presented two disputes associated with the

1849   severance         deed.    First,    the       parties       disagree      about   the

validity of the Yard Restriction.                      Carmeuse contends that the


                                               7
Yard Restriction is invalid because it irreconcilably conflicts

with the 1849 deed’s grant of “all the stone or rock of every

kind” underlying the Property, and because the Thomases’ current

inability to use the Property for residential purposes renders

the Yard Restriction obsolete.          The Thomases disagree, arguing

that the Yard Restriction is valid and prohibits Carmeuse from

quarrying in the vicinity of the stone house that currently sits

on the Property.      The district court agreed with Carmeuse, and

declared that the Yard Restriction “is not a valid restriction

applicable to the surface estate owned by [the Thomases] and

against the mineral estate owners and that the owners of the

stone and quarrying rights are not prohibited from disturbing

the   surface   of   [the   Property],    even   including     within   the

enclosure of the yard.” 2    J.A. 1774.

      Second, the parties disagree about the extent to which the

1849 deed limits what techniques Carmeuse and Helms may use to

extract the minerals they own today.         The Thomases contend that

the parties to the 1849 deed would not have contemplated the

destructiveness      of   modern   limestone     techniques,    and     that

Carmeuse and Helms should therefore be barred from using them.


      2Because the district court declared the Yard Restriction
invalid, it did not address the parties’ factual disputes
concerning the size of the yard and whether the stone house
currently on the Property is the “dwelling house” referred to in
the Yard Restriction.


                                    8
Carmeuse and Helms argue that the 1849 deed does not limit their

use of modern quarrying techniques.              The district court agreed

with Carmeuse and Helms, and declared that they “may use modern

quarrying     techniques”     to     extract     the     minerals    they    own.

J.A. 1775.

                                       B.

       We next explain the parties’ dispute associated with the

sale   of   the   mineral   estate    underlying       the   Reynolds   Tract   at

public auction in 1901 and 1902.               After the death of James S.

Wilson, the grantee in the 1849 deed, several of Wilson’s heirs

filed suit to have his estate sold and distributed.                     Thus, the

Botetourt County Chancery Court divided Wilson’s land holdings

into two parcels and sold them by public auction.                   The mineral

estate underlying the Reynolds Tract was split between the two

parcels, each of which also contained full rights to portions of

the adjacent land that Wilson had also owned.                 A single group of

Wilson’s     heirs   bought   both     parcels,    but       the   parcels   were

conveyed in separate deeds.

       The first parcel was conveyed to the group of heirs through

a deed dated December 23, 1901.             This 1901 deed described the

mineral rights it conveyed as follows:

       the right to all the limestone on the land of the late
       G.B.W. Reynolds [i.e., the Reynolds Tract] . . . and
       along the vein of grey limestone, on said Reynolds
       lands extending in a South-Westerly direction, to a
       line three hundred feet from [the Reynolds Tract’s

                                       9
       southwestern boundary];           together wi[th] all the rights
       of   ingress,  egress,             and  regress,  and   all  the
       privileges and rights             of quarrying, and using, and
       burning, and removing              the stone on [the Reynolds
       Tract], accorded said             John S. Wilson in [the 1849
       deed].

J.A.    441–42.       Thus,       the   1901       deed     conveyed       mineral      rights

underlying      the   entire      Reynolds         Tract,    except      for     a   300-foot

strip along the tract’s southwestern boundary.

       The mineral rights to that 300-foot strip were included in

the    second   parcel,      which      was    conveyed          through    a    deed    dated

July 26, 1902.         That 1902 deed described the relevant mineral

rights as follows:

       all the stone on [the Reynolds Tract], from line of
       [the parcel conveyed through the 1901 deed], . . .
       thence   South   West   to   [the  Reynolds   Tract’s
       southwestern boundary]; together with all rights of
       ingress, egress and regress to said lands, and all
       other rights and appurtenances, as to quarrying, and
       burning said stone, and all other rights as to said
       stone, and said land, . . . which rights, were
       conveyed to said John S. Wilson by G.B.W. Reynolds in
       [the 1849 deed].

J.A. 445.

       The   parties       dispute      precisely         what    mineral       rights   were

conveyed through the 1901 and 1902 deeds.                            Because Helms and

Carmeuse trace their titles to the 1901 and 1902 deeds, they can

own no more today than was conveyed through those deeds.                                   The

Thomases contend that the deeds conveyed an interest only in

“the vein of grey limestone” referred to in the 1901 deed, and

that   ownership      of    the    remaining        stone    on    the     Reynolds      Tract

                                              10
therefore reverted to the surface-estate owners.                           Carmeuse and

Helms,   in     contrast,    contend      that     the      1901     and    1902    deeds

conveyed an interest in all the stone underlying the Reynolds

Tract, and that therefore they own all the stone underlying the

Reynolds Tract today.            The district court agreed with Carmeuse

and   Helms,     and    declared        that    “the      1901       and    1902    Deeds

collectively      conveyed       the    entirety       of    the      mineral      estate

originally     conveyed     by   the    1849    Deed,     and    that      Carmeuse    and

Helms own all of the stone and quarrying rights granted by the

1849 Deed.”     J.A. 1775.

                                          C.

      We turn now to the 1992 conveyances of the mineral estate

to its current owners.           Sometime after 1902, Wilson’s heirs had

recombined the two parcels they had purchased at public auction

and sold them to the Wilson Lime Company.                          See J.A. 1250–51.

Wilson   Lime    Company     held      that    property     until      1992,    when   it

conveyed part of it to Carmeuse and part of it to Helms.

      Wilson     Lime      Company’s          conveyance        to      Carmeuse       was

memorialized in what the parties have referred to as the “1992

James River Deed.”        That deed conveyed full rights to a 316-acre

tract that it described as being the same property that had been

conveyed through the 1901 deed.                J.A. 247-48.          Additionally, in

a separate provision, the deed conveyed



                                          11
     all of the mineral rights including all rights and
     privileges necessary to quarry and remove the stone,
     on half the veins of limestone on [the Reynolds Tract]
     . . . said half to be measured along the veins of
     limestone from the [Reynolds Tract’s northeastern
     boundary] in a southwesterly direction; said stone
     rights to include the use of any water rights [Wilson
     Lime Company] may have, or be entitled to in [the
     Property].

J.A. 248–49.

     Wilson Lime Company’s conveyance to Helms was memorialized

in what the parties have referred to as the “1992 Helms Deed.”

The 1992 Helms Deed did not specifically mention any mineral

estate    in   its    description       of    the    property       conveyed;    the

description    focused     on    the   adjacent     land    for   which   the    full

estate was conveyed.        The deed did, however, state that “[i]t is

the purpose of this Deed to convey all of the property in this

area owned by Wilson Lime Company, Inc., not previously conveyed

by [the 1992 James River Deed].”              J.A. 481.       The parties agree

that that statement of purpose was sufficient to convey to Helms

whatever mineral rights underlying the Reynolds Tract Carmeuse

did not already own.

     These deeds are the source of the dispute between Helms and

Carmeuse about how the mineral estate underlying the Property is

divided between them.           Carmeuse contends that, because the 1992

James River Deed refers to the 1901 deed, it conveyed the same

mineral   rights     as   were   included     in    the    1901   deed;   that    is,

mineral   rights     to   the     entire     Reynolds      Tract,    except     those

                                        12
underlying         a   300-foot        strip    along        the    southwestern            property

line, and that Helms owns mineral rights only to that 300-foot

strip.       Helms, in contrast, contends that the 1992 James River

Deed’s       reference       to    “half       the      veins      of     limestone”        on   the

Reynolds       Tract      means    that      the     mineral        rights      underlying       the

Reynolds Tract are split evenly between he and Carmeuse.                                         The

district court agreed with Helms, declaring that “Carmeuse and

Helms       each    own    an     equal      one-half        portion       of    the    veins     of

limestone” on the Reynolds Tract, “with Carmeuse’s half to begin

at the northern boundary of [the Reynolds Tract], and measured

along       the    veins   of     limestone        in    a    southwesterly           direction.”

J.A. 1775.



                                               III.

       The        Thomases      appealed       three         of     the    district         court’s

rulings, namely (1) that the 1849 deed’s Yard Restriction is

invalid, (2) that Carmeuse and Helms are entitled to use modern

quarrying technology on the Property, and (3) that Carmeuse and

Helms together own all of the stone underlying the Property, not

just    a    particular         vein    of   limestone.             Carmeuse         appealed    the

district      court’s        ruling     that    Helms        owns       half    of    the    mineral

estate underlying the Reynolds Tract, not just a 300-foot strip

along the tract’s southwestern border.




                                                13
     This court reviews de novo a district court’s disposition

of motions for summary judgment.              Calderon v. GEICO Gen. Ins.

Co., 809 F.3d 111, 120 (4th Cir. 2015).              “Summary judgment is

appropriate     ‘if   the   movant    shows   that   there    is    no   genuine

dispute as to any material fact and the movant is entitled to

judgment as a matter of law.’”              Id. (quoting Fed. R. Civ. P.

56(a)).    Because our jurisdiction rests in diversity, we apply

Virginia substantive law.            See, e.g., Liberty Univ., Inc. v.

Citizens Ins. Co. of Am., 792 F.3d 520, 528 (4th Cir. 2015).

Below,    we   address   each   of    the   four   issues    decided     by   the

district court in turn.

                                       A.

     We address first the district court’s declaration that the

Yard Restriction does not bar Carmeuse from quarrying in the

vicinity of the old stone house on the Property.                   The district

court provided two justifications for that conclusion, both of

which Carmeuse advances on appeal.              First, the district court

reasoned that the Yard Restriction was void under the doctrine

of repugnancy because “the granting clause expresses that Wilson

would own all the stone, which includes the stone within the

enclosure of the yard, but the Yard Restriction suggests that he




                                       14
could not quarry there.” 3                J.A. 1756.           Second, it reasoned that

“even if the Yard Restriction was not void from the outset”

under the doctrine of repugnancy, “it is no longer a valid,

enforceable          reservation”         because        “no       one     occupies       or    has

occupied       the    house       for    some    time.”            J.A.     1757    (footnotes

omitted).       We disagree with Carmeuse and the district court on

both counts.

      In interpreting a deed, we are to give effect “to every

part of the instrument, if possible,” and we are to interpret

the deed’s terms “to harmonize them, if possible, so as to give

effect    to    the    intent       of    the    parties.”           CNX    Gas    Co.    LLC    v.

Rasnake,       752    S.E.2d      865,     868     (Va.       2014)      (en     banc).        Such

harmonization, however, may not always be possible.                                Thus, under

the doctrine of repugnancy, “where there is an irreconcilable

conflict       between      the    granting      clause        and    other      parts    of    the

deed, and it is impossible to discover with reasonable certainty

the   intention        of     the       parties,     .    .    .     the    granting       clause

prevails.”       Goodson v. Capehart, 349 S.E.2d 130, 133 (Va. 1986).

      Goodson         provides      an     example        of       what     Virginia       courts

consider       to     be     an     irreconcilable             conflict          between       deed

provisions.           In    that        case,    the     Supreme         Court     of    Virginia

      3Limestone can be accessed only by quarrying, and it is
impossible to quarry without disturbing the surface. Thus, if
one is unable to disturb the surface in a particular area, one
is unable to access the limestone in that area.


                                                15
considered     a    deed   whose    granting      clause    provided    for   a   fee

simple estate in the property at issue, but whose preamble said

the   grantee      was   receiving    only   a    life     estate.      349   S.E.2d

at 131–32.         Those two provisions could not both be true: the

grantee could have received either a fee simple estate or a life

estate, but not both.          Because of this irreconcilable conflict,

under the rule of repugnancy, the granting clause prevailed.

Id. at 133–34.

      Here, the statement in the 1849 deed’s granting clause that

Wilson would own “all the stone or rock of every kind” does not

irreconcilably conflict with the Yard Restriction’s prohibition

on quarrying within the historic Reynolds dwelling house’s yard.

Unlike   the    provisions     at    issue   in    Goodson,    the     1849   deed’s

granting clause and the Yard Restriction can both be true: it is

a commonplace in property law for a person to hold formal title

to property yet be unable to use some portion of it in his or

her preferred manner, whether because of a deed restriction,

government regulation, or some other reason.                   See, e.g., Yukon

Pocahontas Coal Co. v. Ratliff, 24 S.E.2d 559, 563 (Va. 1943)

(enforcing      deed     restrictions   that      prevented    a     mineral-estate

owner from accessing certain parts of that estate).                      Thus, the

Yard Restriction is not void under the doctrine of repugnancy.

      Nor is the Yard Restriction void simply because the house

on the Property is not currently being used as a residence. The

                                        16
operative         language   of     the   Yard    Restriction      prohibits    the

mineral-estate owner from “blast[ing], quarry[ing], or tak[ing]

away, any stone within the enclosure of the yard.”                        J.A. 240.

Nothing in that language suggests that the parties intended for

the Yard Restriction’s protections to be conditional upon the

house being used as a residence. 4                 Moreover, it makes little

sense        to    suggest   that     temporary     conditions     such    as   the

Property’s current zoning or the Thomas’s current need to live

out     of    state    for   career-related        reasons   could    permanently

deprive them of the rights to which they were entitled when they

purchased the Property’s surface estate.

      The         district   court     suggested     that    its     decision    to

permanently void the Yard Restriction based on the nature of the

Thomases’ current use of the Property was “buttressed by the

case of Bradley v. Va. Ry. & Power Co., 87 S.E. 721 (Va. 1916),”

J.A. 1758, and Carmeuse cites Bradley again on appeal.                          But

Bradley is inapposite.               That case involved a dispute between

Virginia Railway & Power Company, which owned a 106-acre tract

      4The 1849 deed does mention occupancy of the house when it
justifies the Yard Restriction, explaining that it was “inserted
to protect the family of the said Reynolds, and of his heirs or
assigns, or other persons who may be in the occupancy of the
house, from annoyance.”    J.A. 240. But even if this language
were interpreted to affect the substantive scope of the Yard
Restriction, it evinces an intent to protect the families of
Reynolds’s heirs and assigns regardless of whether they occupy
the house; the only group for whom it requires occupancy are
“other persons.”


                                          17
near   Richmond,      and   Bradley,    who   claimed       to    own   a     fee-simple

interest in a 1/4-acre lot within the Railway’s larger tract,

and    sought    to   “erect    a     building    on    the      lot    for    business

purposes.”      87 S.E. at 721.         Bradley traced that purported fee-

simple interest to an 1867 deed in which the grantor included a

provision     “reserving      the   family    burying       ground      and    also   the

servants’ burying ground, each to contain one-eighth of an acre,

with the right of free ingress and egress to and from the same.”

Id.     The court held that this provision was not intended to

retain fee-simple title to the 1/4-acre burial grounds such that

Bradley could use that land for whatever purpose he wanted, but

rather was intended “as a reservation of one-fourth of an acre

for burial purposes and none other, for the use of the grantor’s

family.”      Id. at 723.       Thus, Bradley had no right to use the

1/4-acre lot for his business purposes.

       Bradley would help Carmeuse if it had held that the 1/4-

acre lot could no longer even be used as a family graveyard.

But that is not what the Bradley court did; it simply held that

having the right to use that lot as a graveyard was not the same

as having the right to use it to operate a business.                          Here, the

Thomases do not seek to assert a new right outside the scope of

the Yard Restriction; they seek only to enforce the protection

the    Yard     Restriction     has    provided        to   the    owners       of    the

Property’s surface estate since 1849.

                                         18
      The     1849       deed     granted      Wilson    the      full   mineral      estate

underlying      the        Reynolds       Tract,       but     the   Yard      Restriction

prohibited the destruction of the portion of that tract on which

Reynolds’s dwelling house sat.                  The Yard Restriction is not void

under the doctrine of repugnancy, nor is it void because the

Thomases do not currently use the house on the Property as their

residence.       Thus, we vacate the district court’s declaration

that the Yard Restriction is invalid. 5

                                               B.

      We    address        next    the    district       court’s      declaration      that

Carmeuse      and        Helms    are    entitled       to     use    modern    quarrying

techniques to access the mineral estate underlying the Property.

The Thomases contend that the parties to the 1849 severance deed

would not have contemplated that the mineral-estate owner would

use   such     techniques,          which      the     Thomases      contend    are    more

destructive         to     the    surface       than    the       quarrying    techniques

available in 1849 would have been.

      Under    Virginia          law,    the   owner    of    a   mineral     estate   “may

occupy so much of the surface, adopt such machinery and modes of

mining and establish such auxiliary appliances as are ordinarily

      5It remains unclear whether the stone house that currently
sits on the Property is actually the historic Reynolds dwelling
house, and if it is, what area around the house is within the
historic “yard.” But those are factual issues that the district
court did not address at the summary judgment stage, and that we
therefore do not address today.


                                               19
used,” and “is not limited . . . to such appliances as were in

existence when the grant was made, but may keep pace with the

progress of society and modern inventions.”                          Oakwood Smokeless

Coal Corp. v. Meadows, 34 S.E.2d 392, 395 (Va. 1945) (citation

omitted).          This      common-sense      authority        to    improve   mineral-

extraction operations as technology develops, however, “does not

authorize enlargement of the estate granted” to a mineral-estate

owner.       Phipps v. Leftwich, 222 S.E.2d 536, 541 (Va. 1976).                        For

example, in Phipps, the Supreme Court of Virginia held that the

owner of the relevant property’s mineral estate could not engage

in surface mining of coal on the property because “the parties

to     the    1902     deed”      that    granted         the     mineral    estate     had

“contemplated only underground mining of coal,” which leaves the

surface intact.            Id. at 715.

       The Thomases contend that Phipps controls this case--that

just as the mineral-estate owner in that case was prohibited

from     engaging          in   surface       mining       when      the    parties    had

contemplated         only       underground        mining,      Carmeuse      should    be

prohibited from engaging in modern quarrying on the Property

because the parties to the 1849 deed contemplated only the sort

of   quarrying       techniques     practiced        at    that    time.     But   Phipps

involved a difference in kind between the rights granted to the

mineral-estate         owner     (the    right     to     develop     underground      coal

mines),      and     the    activity     in   which       the   mineral-estate        owner

                                              20
sought to engage (the right to surface-mine coal).                         Here, there

is   no     such    difference   in    kind.      The    1849   deed       granted   the

Property’s         mineral-estate     owners     the    right   to   extract     stone

through      quarrying,    and     that     is   exactly   what      the    Property’s

mineral estate owners seek to do today.                     And Virginia law is

clear that they are entitled to employ modern technology to do

so. 6       Accordingly, we affirm the district court’s declaration

that Carmeuse and Helms are entitled to use modern quarrying

techniques to extract the minerals they own. 7

                                            C.

        We turn now to the district court’s declaration that “the

1901 and 1902 Deeds collectively conveyed the entirety of the

mineral estate originally conveyed by the 1849 Deed, and that

Carmeuse and Helms own all of the stone and quarrying rights

granted by the 1849 Deed.”                  J.A. 1775.     The Thomases contend

that the 1901 and 1902 deeds actually conveyed only the vein of

limestone      running    across      the   Property’s     southwestern       portion,

and that that is therefore all Carmeuse and Helms can own today.


        6
       Notably, it is not even clear that modern quarrying
techniques will be more disruptive than those available in 1849.
Carmeuse presented evidence below suggesting that, although
modern techniques involve a larger physical footprint, they also
involve less environmental damage and fewer safety risks.    See
J.A. 499–501.

        7
       Of course, in doing so, Carmeuse and Helms will be bound
by the terms of the 1849 deed, including the Yard Restriction.


                                            21
       Under Virginia law, “[w]here the language of a deed clearly

and unambiguously expresses the intention of the parties, no

rules of construction should be used to defeat that intention.

Where,   however,       the    language      is     obscure        and     doubtful,      it    is

frequently helpful to consider the surrounding circumstances and

probable motives of the parties.”                       Rasnake, 752 S.E.2d at 867.

Further, “[w]here language in a deed is ambiguous, the language

must   be    construed        against      the    grantor       and      in   favor      of    the

grantee.”     Id.       In other words, “[a] grantor must be considered

to have intended to convey all that the language he has employed

is capable of passing to his grantee.”                       Id.

       The 1902 deed is straightforward.                           It expressly conveys

“all the stone” on the portion of the Property to which it

applies, not just the limestone.                       J.A. 445.         Thus, we think it

clear that, as to the 300-foot strip of the Property that was

included     in   the    1902      Parcel,       the    mineral         estate    that   exists

today includes all stone, and not just limestone.

       The   1901   deed      is    less    clear,       because         it   uses   both      the

specific     term       “limestone”         and        the     generic        term    “stone.”

J.A. 441-42.            Nonetheless,         we        think       it     clear      from      the

“surrounding circumstances and probable motives of the parties,”

Rasnake, 752 S.E.2d at 867, that the 1901 deed conveyed the

entire mineral estate.



                                             22
       Wilson’s property was being offered at a public auction

because, after Wilson’s heirs could not decide how to divide his

property     among     themselves,         several       of    them       filed    suit    in

Botetourt      County’s       chancery       court       demanding         that    Wilson’s

property be sold and the proceeds distributed.                              Thus, as the

district     court    pointed       out,    adopting      the     Thomases’        proposed

interpretation        “would    require       the    court      to    accept      that     the

persons tasked with dividing the entirety of Wilson’s property

upon   his   death--including          the    special         commissioners        and     the

chancery     court     charged      with      overseeing        and       approving       that

process--actually       conveyed       less      than    all    of    that       estate,    in

abrogation of their duties.”               J.A. 1764.

       The documents associated with the chancery court’s offering

of Wilson’s land provide no support for such an interpretation.

In its announcement of the auction at which Wilson’s property

was sold, the chancery court described the property that would

be conveyed in the 1901 deed as including “the stone rights” on

the one portion of the Property, and described the property that

would be conveyed in the 1902 deed as including “all the stone

and    mineral      rights”    on   the     other       portion      of    the    Property.

J.A. 429.        Moreover, to the extent any doubt remains, we are

obligated      to    resolve    that       doubt    in    favor       of    the    grantee.

Rasnake, 752 S.E.2d at 867.             Thus, we conclude that the 1901 and

1902   deeds     together      conveyed      the    entire      mineral      estate       that

                                            23
James   S.   Wilson     had   owned--that        is     to    say,    “all       the   stone”

underlying the Property.         Because Carmeuse and Helms trace their

interests    in   the    Property      to    those      1901    and       1902    deeds,     we

affirm the district court’s declaration that they collectively

own “all the stone” underlying the Property.

                                            D.

      Finally, we address the district court’s division of the

mineral estate underlying the Reynolds Tract between Carmeuse

and Helms.      The district court declared that “Carmeuse and Helms

each own an equal one-half portion of the veins of limestone” on

the   Reynolds     Tract,     “with    Carmeuse’s            half    to    begin       at   the

northern boundary of [the Reynolds Tract], and measured along

the     veins     of    limestone       in       a    southwesterly              direction.”

J.A. 1775.

      Carmeuse     contends     that    it       owns    more       than    half       of   the

mineral estate underlying the Reynolds Tract, despite the 1992

James River Deed’s conveyance to it of only “half the veins of

limestone” on the Reynolds Tract.                    J.A. 249.        Specifically, it

contends that it owns the same portion of the mineral estate

underlying the entire tract, except for a 300-foot strip along

the tract’s southwestern border--that is, the portion of the

mineral estate that was conveyed in the 1901 deed.                                 For this

proposition, it relies entirely on the 1992 James River Deed’s

statement that the 316-acre tract to which Carmeuse received

                                            24
full rights (surface and mineral) was the same property that was

conveyed in the 1901 deed.           See J.A. 248.

     Carmeuse’s      argument       is   not      persuasive.            When     a    deed’s

“language is explicit and the intention thereby is free from

doubt, such intention is controlling.”                       Irby v. Roberts, 504

S.E.2d 841, 843 (Va. 1998) (citation omitted).                           The 1992 James

River Deed clearly stated that the mineral rights being granted

were “on half the veins of limestone” on the Reynolds Tract, and

specified    how     to    determine        the     boundaries        of    that           half.

J.A. 249.        The 1992 James River Deed’s reference to the 1901

deed does not create any ambiguity.                  That reference comes in an

entirely separate part of the deed from the portion that conveys

mineral    rights,       making    clear     that     it    applies        only       to    the

property    to    which    Carmeuse      received     full    rights,       not       to    the

property    to    which    it     received       solely     mineral      rights.            The

portion of the 1992 James River Deed that conveys mineral rights

to   Carmeuse     makes     clear    that        Carmeuse    owns     mineral          rights

associated with “half the veins of limestone” on the Reynolds

Tract.      Thus,    we    affirm     the    district       court’s        holding         that

ownership    of    the    Property’s        mineral    estate       is     evenly      split

between Carmeuse and Helms.




                                            25
                                    IV.

     For   the   reasons   stated   above,   we   vacate   the   district

court’s holding that the Yard Restriction is unenforceable, and

affirm as to the remaining issues.

                                VACATED IN PART AND AFFIRMED IN PART




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