which involved an old piece of property that is subject to an eight hundred forty nine severance to the questions really relate to the yard clause which is a primary issue and then the second issue is whether the parties intended that the limestone and the question there is simply whether the intent was to convey the entire stone estate on this large piece of property or simply a singular portion in the southern part of the problem could i just clarify one thing and i believe you said that the argument is that the appellee so entitled to destroy the entirety of the state despite an expressed in restrictions that the grants or retain for example the rights to that that he would have all of the temblor the rights that the grants he would have to maintain fencing so that his his cattle and whatnot would not be injured by pouring would continue to enjoy the estate as a plantation which was how to use rights i'd say you're just using that as evidence of the broader correct when you when we all know that that was the intent of the grant or the question is knowing that right  still destroy the surface ok that's that's the issue so i think now it's a very well i could i do address the eight hundred forty nine deeds yard clause this is this is a prohibition within the  are attached to the said reynolds present swelling house the dwelling house still exists it's there it's a seven eighteenth century stone well and it's very rare and the planks of desires to protect itself that is not an issue that the district court accepted below the district court accepted that this is the house he said in oral argument that he accepted that and it footnote fifteen to his opinion he states that he assumes that w wasn't clear i was speaking to the parameters look you are ok so if talking about yard we know that yard is attached to the presence of all accounts so where the drawing house is a very good indication of where the  where the yard begins ok in this instance the defendant's expert agreed that it would be at least fifty to seventy feet from the house we accept that for present purposes we accept that now in addition to that we hired experts who who applied and that this yard would have had a function that would have or paraded out buildings and identified the bar in the spring and and things of that nature and said it would have been roughly perimeter that way there was there was some dispute at the court below which was never discussed by the court of which the defendants raised as to whether it was in fact fenced or not fenced it's completely irrelevant if you want to see the  case on this issue that shows exactly how much detail is required to go to the case i'm agree that that is a case in virginia in which the court set forth exactly what the standards erred in making that an issue the judge did not make it an issue if you search his opinion he does not base it on the fact that oh i don't know where the yard is if the question had been where the yard is he would have he would have said it was a fact issue he would not ruled on  about the difficulty in determining the parameters if he does it is in an afterthought all right his main problem with the with the with the whole thing just begs was simply that he did not see how the war could restrict their grammar and other words i'm giving you all this limestone but you can't corey blaster to even take away any stone in this area right here because if you read his account i would review the peculiar thing or whatever i disagree that he based his opinion on that he based his opinion in this order on two things first if you're going to restrict the grant at all what he outset if the location of the yard was the problem it wouldn't be void from the outset because obviously reynolds and wilson know where reynolds yard is so he says it's void from the outset he then goes to an alternative analysis where he gets i  think will gathered on the notion of occupancy we point this out very well that he misreads the clause omitting a critical comma that comes right before the phrase from annoyance but he then in that instance going he's talking about the notion the notion of occupancy i would refer the court to j a two forty which we supplemented yesterday with a or day before with a filing of a clear copy you each should have a copy of this this is the yard clause and it is cut and it is legible if you look right it says occupancy of the house comma space from annoyance to those who may be an ox of the house is an independent clause in that in that phrase and so it occupancy does not go back and modify wilson reynolds or his heirs or six successors so grammatically the court reading of the clause was completely incorrect by omitting the comma this is an unfortunate stake we submitted to judge judge conrad this very page and it is in the record at his docket number two ten people who might be an occupancy of the house comma and it protects all three of those categories from annoyance trust me we're annoyed by the notion that car moves wants to destroy this eighteenth century home and so occupancy simply does not instance would would not in our opinion it i think it i think it relates to a desire to use the property in some beneficial manner just as justice thomas does judge conrad implied modern concepts of like residency like real estate residency of modern zoning bear in mind this is eight hundred forty nine this house was built in the seven thousand nine hundred there was no zoning for reynolds or wilson and every single thing that you do as judges you have to go back and place yourself in the mind and circumstances of those grants or were granted you do not judge the language from today you do not judge the property distinction from today you do not judge it as to whether i can go out and easily do it today it's all judged based upon did reynolds and wilson know and can we reasonably ascertain what they can be a change circumstance change circumstances is a concept that deals directly with restrictive restrictive  covenants as pointed out in cheatham versus taylor those are restrictions that regulate the style and cost the building's directed on a tract that is being sold in parcels or had they restrict the location and the manner in which property can be used here there is not a restriction there is a prohibition mr wilson you can't blast corey or take away anything here you don't have to blast with just a little bit of dynamite or you don't have to blast fifty feet you can't  cited or agreed with that line of cases which is the chesterfield case which is not even a deep case it's a company so from the word go that has been a defense and from the word go it has been rejected now unfortunately judge conrad kind that all together and used some concepts to say to say he's changed circumstances but what he was doing if you go back and look he goes judge her because you all know ruled that the clause is not subject occupants here's a critical point judge conrad agreed with them all right that is the law of the case the clause is not subject to occupancy judge turk ruled it judge conrad accepted it confirmed it and agreed with it and that hasn't been a specifically that ruling what he said was when you're considering the circumstances i take that into account in other words you know the cases that say you you have to go back and consider the facts and circumstances of the parties and the grants or grants you position he says one of those circumstances is they use the word doc so in that sense he colored the color of his later analysis by that and said you know there's nobody occupying it can't be zoned this or that bear in mind half of this property when we're talking later about the ninety one in one thousand and two deeds that are in the that have the great say that's the only part of this property that is even zone or mine the rest is grown zoned agricultural which unlike judge judge conrad got this wrong in his opinion a one designation that's an agricultural doesn't mention you can build a residence in fact most farmers homes sit on a one designation i see that my i think my time uses i'm now i'm now in the deficit you will have you were served seven seven minutes for a bottle ok thank you you thank mr hagen whether or not less than the full state was conveyed by the ninety no one the first as to what we call the republic see issue a land title always begins with the date  when you read this deed the most important language is not the exceptions or reservations that come later the first thing you read is always the granting the granting language in this  extraordinarily impacting all of the rock and all the rock or stone or stone particularly including limestone every part of said runnels land and then they repeat that language again and again so that's an absolute unconditional of all the rocker stone on every portion of ronald's land now when you read the deed then you come to the well as language and the purported exceptions as the right to crop and right to tried to haul back part of what they'd taken and the your first question is what did they take and is it clear in on equivocal what they took back we're speaking of the modern repugnancy the common law rule which probably was still it back in the thing forty nine was that you could never take back from an absolute grant you could never have a rip reservation of a be of interest and  on the one hand thomas's expert said well this is a the simple reservation of the yard whatever it is reynolds retain ownership of that ground on the other hand he said it is a different point that maybe he just accepted the right to prohibit that rock from being taken so you ran the rock but then he said you couldn't make it mr hagan the pay a fee simple and but the preamble said that he was receiving a life estate both those things could not be true that's not the case here this is a case in which a fairly common occurrence occurred in that is the grant or reserved to himself and his family heirs in the sign the enclosure of the yard attached to the dwelling house to protect the family or other persons who may be in the occupancy of the house who are newly i don't understand why those two things can't co exist and if they can co exist seems to me that the intent of the parties is pretty easy to discover it the grant short intended to reserve to himself or herself the right to the ho i think it's important that this is a deed we have special rules or constructions or deeds and wills because they have to speak on it quickly in the have to speak for all and when we speak of construing the deed we speak of the legal the family but what horsemen of the legal est does that refer to does it refer to a piece of the ground or does it refer to the right to use a piece of the ground or can't you i simply have the most server approach and say dynamite in that fifty five seventy square rectangle of land or doesn't prohibit blasting over the hill of those rocks are going to come down all of us when you say protect from annoyance if protection from annoyance it a land right and you have you granted all the rock and stone of every description on every part of said reynolds land if reynolds is going to come back and say i didn't give you the whole thing the question is what did you retain and that's where the question the land needs the productive and in the bradley case in those general terms cemetery had been reserved and there was no one left the graves have been removed but it wasn't being  so the bradley case is an unusual case but the similar principles do apply in this case that an eight hundred forty nine right to raise a family you know home by the time you get to the twenty first century if you didn't reserve the land itself the fifty by seventy eight if you didn't reserve ownership of that land if you're a serb something else what did you reserve after the house has become derelict and it's been long event  thank you my place of court my name's thomas lawson i'm here on behalf of car moves our positions were helms and karmas are the owners of the of the mining interests the underground if you will versus thomas which is the surface and not to belabor the point but to to go to briefly to the issues what i believe judge conrad and we both are in agreement helms and arm is that he did it properly was he sifted through what i think he said over a thousand pages of evidence documents the various deeds that were presented as as recently as yesterday again and what he found on the rule of repugnancy was that this grant the court is going to do what judge conrad did and interpret it as as being repugnant and throw it out he he did kind of do a belts and suspenders opinion though and he also heard the evidence about the change in circumstances and you all have have talked very well about that but probably the most telling was there were words such as from annoyance and so on and question was  asked and i think it goes a little further to say you need to be an occupant to be annoying and the the phrase and judge conrad it well to read those words together and what was intended was there was a brief reservation  out so that these ayers or signs could live in any house and any yard and the judge didn't need to go into the depth of the evidence about whether this was the yard at all in fact there was evidence in the record that this was a stone cabin it was an out the old ng and that the house was the structure that was up on the hill the stone cap and sits and when the properties were together there was a prominent structure on the hill logic would say that was the house judge conrad didn't go into the details of that because he was able to go through the evidence that had been presented and apply not only the rule of c but also the doctrine of changed circumstances and of course that was that whatever that structure was no one had lived in it for decades and we've talked about zoning and  it's very clear where the property sit where this structure since it's zone for mining and you cannot live and it had been in that status for many many years you cannot live on that property there are other portions can change and it could it could and there was arguments for example that somebody could in theory occupy and so on but again what judge conrad did was he considered the evidence the totality of these words he found them to be ambiguous listen to the evidence and said this restriction has has number one i'm having a hard time understanding what it means especially when you compare it with the fee grant and all the stand that had been conveyed and so on and i think very properly rule that the rule does apply and then he again bootstrapped it although he ruled as two separate findings  that the change in circumstances were apply forgotten who asked the question if you don't have one do you still have the other i believe the way judge conrad will yes you do he could have ruled on either and then just said the next argument  moot i don't need role but he went to the trouble of ruling on and again i don't think he spent much time for the purposes of summary judgment getting into the merits of is this the house and is this the yard and if there's a yard how big is it and so on there was all kinds of testimonies about what one would have in the eighteen hundreds by way of an enclosure around their home and certainly i think it we can all appreciate we didn't have lawn mowers and things like that so the concept of a large yard just didn't exist at that time a judge conrad didn't need to do that in and again believe he he very appropriately ruled with regard to the contest between the mining rights and the surface streitz and the surface someone asked what is the surface on the surface subject to the mining rights and it's interesting if we read the deed the individual that retained the right for this house and yard retain the right to process lime and mine lime and harvest temper and so on that's what was going on on this property this was not some some  was very much alive and well it just wasn't as precise as it is today but the earth would have been removed in various places and again his his statement was this what a look like like the man and so if someone is living in a home and has this reservation he has it for the purpose that he can do that too but again that reservation by judge conrad's ruling is is is gone we did have one error that we noted with regard to judge conrad's ruling and that was the issue of the division line between the underground mining interests and what we've asked for is is a finding and called out as an error that we need to have in in the court's decision a line something that to quote from the cases will fit to the ground or fit to the property something in the land records that one can apply go out to the property and strike a line and say this is this is your mining interest in this is your mining interest and unfortunately judge conrad did not do that and indeed in his opinion he gave us some guidance by saying that perhaps you could do a geological survey when you get to the point that you're going to mine to determine where that that halfway point  is and our position is is that the easiest way and the best way and this would be an interpret any matter of title would be to change back and look at our predecessor deeds and in particular what the chancellor properties and take us to it on either side and that was where we we first got reference to half the stone half the mining interest and it's it's arbor area that we've noted that that's what judge conrad should have done is hearken back you know the references in our deeds in our predecessor deeds and find that that is in fact the line and not require us to do geological survey or honestly d district court we believe it's actually in the deeds the deeds are are very helpful and when you do title work extensive i don't work it's it's a little like a puzzle there's references  ambiguous or not and can i consider these things or not but every deed takes with it what its predecessor gave them or work it another way you can't have something if your predecessor didn't happen to give it to you and if you go back into the chain and when you explore this mining interests these folks were very successful sophisticated at the end of the eighteen hundreds beginning of the one thousand hundreds and mining limestone was alive and well back then as it is today and the chancellor who was tasked with splitting up the entrance did a fine job and struck a line and that's where you see the r and frankly that's the only reference to half all the other suggestions including judge conrad's are you need to open up the earth to some degree to find out where the half it are in the house is brief you outcroppings and then strike some lines off of those although the experts tell us what you see on the surface is not necessarily what's below the ground and in fact because nature laid it down the line of stone down it is most definitely irregular and different than what you see on the earth so now what we're suggesting is just go back to the deeds that are all incorporated and are in r and being clauses and to use that three hundred foot line as the dividing line between the mining i you i thank your arms if i could i will address this this issue which has been somewhat collected of the methods that could be employed just briefly that goes back to your question judge the as to whether the parties intended that wilson could destroy the service even though these specific rights were retained and even though such conrad knew it already is intended that the property would continue to be used as a working arm as to that as to the notion that was just planted before judgment so there was no was no evidence but now back back to whether they could employ these techniques which would in fact create a moonscape who just point out that that the law on this is is clear that a party courts will not construe a deed as giving a mineral owner the right to destroy the surface unless the right is given in unmistakably plain terms to boil this down judge conrad said well scoring and it doesn't matter if you cory and only create a whole this big it's only going to be down in that young corner what's the difference between that and eight hundred feet down into the earth a big difference if you reserve the right to use  service so if if the interpretation given would increase the rights of the grantee or decrease the retained rights of the grant or it's not valid under virginia law that is the basic simple when the parties intended that the crops had could not be damaged the timber could not be cut and all of these things that are specified in the deed absolute destruction was was not was not contemplated right now moving on to now we think the evidence shows that it was limestone and it was the gray van but let's go through this list of list of exactly what evidence the judge had to ignore and that contradicts his statement the author zing order for the sale that references both the grave rain and the dylan tract the advertisements for sale they talk about sure gray limestone ninety eight percent carbonite carbonate bear in mind there's two different types of stone on the property there's dolomite which is up at the top it is not zoned for mining and then there is limestone that's at the bottom it is zone for mining the terms of the sale reference the graving and the dylan line is that there were there were appraisals done of this stone at the time of the sale and one of the appraisers said he was particularly well qualified and we have this appraisal and it's in the record he says that he was particularly well qualified because he had worked quote the same bank of lime on colonel dylan's property next now that again makes it pretty clear that that our argument that the dylan line matters and the vein mat so all of these things would tend to indicate that they're not talking about all stone on the whole property they're talking about the grave the limestone the dylan boundary and if if you look  the best place to see what i'm talking about is is in the expert report which is found at j eleven sixty two we gave you a better copy of this yesterday unfortunately and the jets one appendix that did not come out in color this is the property right here you don't actually contest that the eight hundred forty nine no no no no so your your argument is that at some point later i distinction was struck correct what happened was the the properties were sold out of chancery and so i would refer you when you look at this at this map you will see the limes originate in those proceedings and in those the valuable thing was the lime stuff jeff conrad says that in his opinion he says well the reason they only talk about limestone is because that's the only thing that had value and and we agree that is the only thing that's had value so the missioners sold what had bowed they sold the limestone they didn't sell the stuff that nobody was producing nobody had ever quarry dolomite in the whole area i thought that the nineteen more so he's not conveying all it's all that is both adjoining and along the way and then it says it goes to the to a point three hundred feet from the dylan line when you when you're thinking about the dylan line that dylan line is in fact only in the southern part of the property shown in diagrams on our on our mapping i once again now go psycho over thank you very much the thomas s request reversal of all of these