Justin Thomas v. Carmeuse Lime & Stone, Inc.

Filing

UNPUBLISHED AUTHORED OPINION filed. Originating case number: 7:12-cv-00413-GEC. Copies to all parties and the district court/agency. [999784570]. [15-1446, 15-1447]

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UNPUBLISHED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,
(CHEMSTONE) COMPANY,

INCORPORATED;

O-N

MINERALS

Defendants – Appellees,
v.
THOMAS M. HELMS, SR.,
Intervenor/Defendant – Appellee.

No. 15-1447

JUSTIN D. THOMAS; IRENE S. THOMAS,
Plaintiffs,
v.
CARMEUSE
LIME
&
STONE,
(CHEMSTONE) COMPANY,

INCORPORATED;

O-N

Defendants – Appellants,
v.
THOMAS M. HELMS, SR.,
Intervenor/Defendant – Appellee.

MINERALS

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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Vacated in part and affirmed in part by unpublished opinion.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/CrossAppellants.

Unpublished opinions are not binding precedent in this circuit.

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DUNCAN, Circuit Judge:
This

appeal

approximately

150

involves
acres

of

a

trilateral

limestone-rich

County, Virginia (“the Property”).
and

Irene

Thomas

own

Defendants-Appellees

the

land

in

over

Botetourt

Plaintiffs-Appellants Justin

surface

Carmeuse

dispute

Lime

rights
&

Stone,

to

the

Inc.

Property.

(“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

1

Restriction”).

Second,

the

Title 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

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

quarrying

Property.

techniques

Third,

the

to

extract

district

court

minerals

held

that

from

the

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
district

the

Property’s

court

southwestern

determined

how

portion.

ownership

of

Fourth,
the

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
2002.

Thomases
At

the

purchased

time,

the

Carmeuse

Property’s
already

surface

owned

and

estate

in

operated

a

limestone quarry across the road from the Property.
pre-purchase
Carmeuse

also

investigation,
owned

some

the

portion

Thomases
of

the

In their

discovered
Property’s

that

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
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residence.

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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
Property’s

the

decade

surface

after

estate,

the

Thomases

Carmeuse’s

plans

purchased

for

the

the

Property

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

limestone

Carmeuse’s

it

owned

intentions,

on
the

the

Property.

Thomases

Upon

initiated

learning

this

of

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’

language

from

Property’s
Property’s
(2) the
1902,

three

ownership:
mineral

mineral

and

disputes

(3)

on

transactions
(1)

estate

estate’s
the

center

the
from

sale

in

at
of
5

to

the

initial
its

conveyances

how

the

deed

history

of

the

severance

of

the

surface

public

interpret

estate

auction

mineral

in

in

1849,

1901

estate

to

and
its

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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

surface estate in 2002.
owners

of

the

mineral

Thomases

purchased

the

Property’s

Carmeuse and Helms are the present
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
6

kind,

and

particularly

all

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limestone, or quarries of limestone, or other kind of stone, in
and upon every portion” of the Reynolds Tract.
that

Wilson

further

could

granted

access

him

that

“the

mineral

privilege

estate,

. . .

of

J.A. 244.
the

So

1849

free

deed

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.
The
rights,

1849

deed

however,

Id.

qualified

through

these

several

broad
other

mineral
provisions

and

access

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

validity of the Yard Restriction.

7

parties

disagree

about

the

Carmeuse contends that the

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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

enclosure of the yard.” 2

Property],

even

including

within

the

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.

2

Because 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.
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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

public auction in 1901 and 1902.

the

Reynolds

Tract

at

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.
Wilson’s

heirs

bought

both

parcels,

but

A single group of
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

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southwestern boundary];
of
ingress,
egress,
privileges and rights
burning, and removing
Tract], accorded said
deed].
J.A.

441–42.

underlying

the

Thus,
entire

the

Pg: 10 of 26

together wi[th] all the rights
and
regress,
and
all
the
of quarrying, and using, and
the stone on [the Reynolds
John S. Wilson in [the 1849
1901

deed

Reynolds

conveyed

Tract,

except

mineral
for

a

rights

300-foot

strip along the tract’s southwestern boundary.
The mineral rights to that 300-foot strip were included in
the

second

parcel,

July 26, 1902.

which

was

conveyed

through

a

deed

dated

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

conveyed through the 1901 and 1902 deeds.

mineral

rights

were

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
10

stone

on

the

Reynolds

Tract

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therefore reverted to the surface-estate owners.
Helms,

in

contrast,

contend

that

the

1901

Carmeuse and

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.
and

Helms,

and

collectively
originally

The district court agreed with Carmeuse

declared

conveyed

conveyed

that

“the

the

by

entirety

the

1849

1901
of

Deed,

and

the

and

1902

mineral

that

Deeds
estate

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.
Wilson

Lime

Company

held

that

property

See J.A. 1250–51.

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.

a separate provision, the deed conveyed

11

Additionally, in

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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

description

its

description

focused

on

estate was conveyed.

the

of

the

adjacent

property
land

for

conveyed;
which

the

the

full

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

mineral

rights

as
to

were
the

included
entire
12

in

the

Reynolds

1901

deed;

Tract,

that

except

is,

those

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underlying

a

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300-foot

strip

Pg: 13 of 26

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

Reynolds

Tract

to

means

“half

the

that

the

veins

of

mineral

limestone”

rights

on

the

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

district

particular
court’s

vein
ruling

of

limestone.

that

Helms

owns

Carmeuse
half

of

appealed
the

the

mineral

estate underlying the Reynolds Tract, not just a 300-foot strip
along the tract’s southwestern border.

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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).
appropriate

‘if

the

movant

shows

that

“Summary judgment is
there

is

no

genuine

dispute as to any material fact and the movant is entitled to
judgment as a matter of law.’”
56(a)).

Id. (quoting Fed. R. Civ. P.

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

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could not quarry there.” 3

Pg: 15 of 26

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
occupied

reservation”

the

omitted).

house

for

because
some

“no

one

time.”

occupies

J.A.

1757

or

has

(footnotes

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

Rasnake,

the
752

intent
S.E.2d

of
865,

the

parties.”

868

(Va.

CNX

2014)

Gas

(en

Co.

LLC

banc).

harmonization, however, may not always be possible.

v.

Such

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

prevails.”

the

parties,

.

.

.

the

granting

clause

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

Goodson
consider

of

to

provisions.

provides
be

an

In

that

an

example

of

irreconcilable
case,

the

3

what

Virginia

conflict

Supreme

Court

courts

between
of

deed

Virginia

Limestone 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

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considered

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a

deed

whose

Pg: 16 of 26

granting

clause

provided

for

a

fee

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

grantee

at 131–32.

was

receiving

only

a

life

estate.

349

S.E.2d

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
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operative

Filed: 03/30/2016

language

of

the

Pg: 17 of 26

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

conditions

to

suggest

that

temporary

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.
Bradley is inapposite.

But

That case involved a dispute between

Virginia Railway & Power Company, which owned a 106-acre tract
4

The 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

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near

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Richmond,

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and

Bradley,

who

Pg: 18 of 26

claimed

to

own

a

fee-simple

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

sought

purposes.”

to

“erect

a

building

87 S.E. at 721.

on

the

lot

for

business

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 1/4acre 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

Property’s surface estate since 1849.
18

to

the

owners

of

the

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The

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1849

underlying

deed

the

granted

Reynolds

Pg: 19 of 26

Wilson

Tract,

the

but

full
the

mineral

Yard

estate

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

Carmeuse

and

next

Helms

the
are

district
entitled

court’s
to

use

declaration
modern

that

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

destructive

techniques,
to

the

which
surface

the

Thomases

than

the

contend

quarrying

are

more

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
5

It 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.
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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

contemplated

in

only

surface

mining

underground

when

mining,

the

Carmeuse

parties

had

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
mines),

and

owner

the

(the

activity

right
in

to

which
20

develop
the

underground

mineral-estate

coal
owner

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sought to engage (the right to surface-mine coal).
is

no

such

Property’s
through

difference

in

mineral-estate

quarrying,

and

kind.
owners

that

is

The
the

1849
right

exactly

mineral estate owners seek to do today.

deed
to

what

Here, there
granted

extract
the

the

stone

Property’s

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.
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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

grantee.”

construed
Id.

against

the

grantor

and

in

favor

of

the

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
specific

1901
term

J.A. 441-42.

deed

is

less

“limestone”
Nonetheless,

clear,
and
we

because

the
think

it

generic
it

uses
term

clear

both

the

“stone.”
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.

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Wilson’s property was being offered at a public auction
because, after Wilson’s heirs could not decide how to divide his
property

among

Botetourt

themselves,

County’s

several

chancery

of

court

them

filed

demanding

that

property be sold and the proceeds distributed.
district

court

pointed

interpretation

“would

out,

adopting

require

the

the

court

in

Wilson’s

Thus, as the

Thomases’
to

suit

accept

proposed
that

the

persons tasked with dividing the entirety of Wilson’s property
upon

his

chancery

death--including
court

process--actually

charged

the

special

with

conveyed

overseeing

less

abrogation of their duties.”

commissioners

than

all

and
of

and

approving
that

the
that

estate,

in

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

J.A. 429.
obligated

rights”

on

the

deeds

portion

of

the

Property.

Moreover, to the extent any doubt remains, we are
to

resolve

that

Rasnake, 752 S.E.2d at 867.
1902

other

together

doubt

in

favor

of

the

grantee.

Thus, we conclude that the 1901 and

conveyed

the
23

entire

mineral

estate

that

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S.

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Wilson

had

owned--that

underlying the Property.
interests

in

the

Pg: 24 of 26

is

to

say,

“all

the

stone”

Because Carmeuse and Helms trace their

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
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Pg: 25 of 26

full rights (surface and mineral) was the same property that was
conveyed in the 1901 deed.
Carmeuse’s

See J.A. 248.

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

J.A. 249.

to

determine

the

boundaries

of

that

half.

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

property

to

which

property

to

which

clear

Carmeuse
it

that

received

received

it

applies

full

solely

only

rights,

mineral

to

the

to

the

not

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.
ownership

Thus,
of

we

the

affirm

the

Property’s

district
mineral

between Carmeuse and Helms.

25

court’s

estate

is

holding
evenly

that
split

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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

26