
    Anderson et al. v. Pryor et al.
    (Decided March 21, 1935.)
    
      Messrs. Graham & Graham,- for plaintiffs in error.
    
      Messrs. Kimball é Sugden and Mr. G. F. Ribble, for defendants in error.
   Lemert, J.

This case was tried in the Court of Common Pleas of Muskingum county and final judgment was rendered upon a demurrer filed to defendants’ answer and cross petition. The sole question in this lawsuit is what interest did the deed that William L. Deitrick and wife executed and delivered to Raymond Deitrick convey? That is, did it convey not only the surface rights but all the other rights and interests in said property; or did it reserve to the grantors all rights, title and interest in said land except the surface rights?

The deed contains the following clause:

“To Have and To Hold the said granted premises, with all the appurtenances and privileges thereunto belonging, to the said Raymond Deitrick, his heirs and assigns, forever, and we, the said William L. Deitrick and Clara A. Deitrick for ourselves, our heirs and assigns, do hereby covenant with the said grantee that we are lawfully seized in fee of the premises herein-before described, and that said premises are free from all encumbrances whatsoever, excepting the June, 1913, taxes, and thereafter, which the said grantee assumes and agrees to pay, and also excepting the coal underlying said land, which said grantors reserve, and it is the intention of this deed to convey only the surface of said ground.”

It is the contention of plaintiffs in error that the grantors intended only to convey the surface of said ground, and the grantee intended only to purchase the surface thereof, and, that being the case, that the deed only conveys what the parties intended, unless they used such language as can not by reasonable interpretation convey what the parties intended to convey.

By the deed in question, which was dated March 10, 1913, a copy of which' is now before the court, William L. Deitrick and Clara A. Deitrick, husband and wife, granted and conveyed the premises described therein to Raymond Deitrick, his heirs and assigns, forever. This, of course, was a grant in fee. Following this grant in fee there is a paragraph which reads:

“To Have and To Hold the said granted premises with all the appurtenances and privileges thereunto belonging, to the said Raymond Deitrick, his heirs and assigns, forever.”

And then we note this language, “and we, the said William L. Deitrick and Clara A. Deitrick, for ourselves, our heirs and assigns, do hereby covenant with the said grantee that we are lawfully seized in fee of the premises hereinbefore described, and that said premises are free from all encumbrances whatsoever, excepting the June, 1913, taxes, and thereafter, which the said grantee assumes and agrees to pay, and also excepting the coal underlying said land, which said grantors reserve, and it is the intention of this deed to convey only the surface of said ground.”

This clause discloses an unequivocable exception of the coal, and the question presented is, does it also except the oil and gas ?

The defendants’ cross-petition avers:

“We answering defendants further say that at the time said deed was executed and delivered that oil and gas had been discovered and produced in the vicinity where said land was situated and was a known fact to the grantors and grantees.”

The plaintiffs’ demurrer of course admits the truth of this allegation.

In determining what is included in a deed the familiar rules of construction are applied. The grant is construed most strongly against the grantor. The whole contract must be considered in arriving at the meaning of any of its parts. The terms are to be understood in their plain, ordinary and popular sense unless they have acquired a particular technical sense by the known usage of the trade. They are to be construed with reference to their commercial and their scientific import. This rule is of especial importance when the question arises whether a specific mineral is included in a general designation.

From the earliest times the decisions are uniform that where there is a clear and manifest repugnance between the premise and the habendum clauses of a deed, the former must prevail, and the doctrine is no less well recognized and maintained now than it was in former days.

The rule is that where there is an irreconcilable conflict between the two clauses the granting clause must prevail.

It is a well-known rule of construction that an interest or estate given, conveyed or bestowed in one part of any written instrument by terms commonly clear and unambiguous, as to which, if standing alone, there could be no doubt whatever, can not be defeated by a construction given it in another part of the same instrument, unless the terms found in such other part are equally decisive and clear. 13 Ohio Jurisprudence, 895.

While every deed should, if possible, be construed so as to give effect to the intention of the parties, it is also the general rule that the instrument must be construed most strongly against the grantor and in favor of the grantee in order to derogate as little as possible from the grant, for the grantor if he left the point doubtful is assumed to be at fault; and in accord with this general rule, exceptions and reservations are to be construed strictly against the grantors, so that they may derogate as little as possible from the grant.

Where .this right is conceded, and where the whole grant, taken together, is doubtful, then the rule applies that in case of doubt every grant shall be construed most strongly against the grantor.

Taking these general rules and the well-settled rules of construction of conveyances we must say that the language of a deed is the language of the grantor. He selects the terms, and it being supposed that he will insert all that has been agreed upon beneficial to himself, and will be less careful to state fully all which is beneficial to the grantee, the language is to be construed most strongly against the grantor.

It is not uncommon in coal-bearing communities to encounter the expression, “except the coal, which is not intended to be conveyed hereby.” And the excepting clause in the instant deed, consisting of the phrases, except “the coal underlying said land, which said grantors reserve,” and “it is the intention of this deed to convey only the surface of said ground,” means no more.

It is quite apparent from the record before us that the grantors knew of the presence of coal in the vicinity and deemed it of value. Hence the expressed exceptions. If they had known of the presence of oil and gas in the vicinity, and had deemed them of value, they would most assuredly have expressly excepted them, if such was their intention. If not, then why did they expressly except the coal?

If we give to the word “surface” the restricted meaning contended for by defendants, then, taking the deed by its four corners, and critically examining and weighing its several provisions, we are led inevitably to the conclusion that at the time of the making of the deed the parties must have had in mind the value of the land — that is, the superficial portion thereof, and the underlying strata of coal, and no more.

So, when these provisions are so viewed, in the light of such contention, can the several provisions as found in this deed be recognized and a reasonable effect given to each? When so viewed, in that light, the several provisions will harmonize, and we believe clearly indicate that at the time of the making of the deed the parties did not have in contemplation a deposit of valuable minerals other than coal. Not being in contemplation, there could have been no intention to except.

Entertaining the foregoing views, and taking the provisions of this deed as they appear upon the face of it, we are of the opinion that the decree entered in the court below was plainly right, and it therefore follows that the finding and judgment of that court will be, and the same hereby is, affirmed.

Judgment affirmed.

Montgomery and Sherick, JJ., concur.  