STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

Dennis Kidder, Sandra Charlene Kidder Lutz, 

Marcia Lynn Mitchell, Nelson Kidder, Louise FILED 

Craft, Elaine Kidder, Linda Carpenter, Lois November 17, 2017 

Jane Ristau, Larry W. Kidder, Jeannette M. EDYTHE NASH GAISER, CLERK 

Kidder, and Robert E. Kidder, SUPREME COURT OF APPEALS 

OF WEST VIRGINIA Defendants and Third-Party Plaintiffs Below, Petitioners 

vs) No. 16-1109 (Tyler County 14-C-4H) 

Montani Energy, LLC; Whittle Corporation; Statoil USA 

Onshore Properties; Inc., Ralph Koontz, Mary Jo Koontz, 

Barbara K. Baker, Linda P. Sherwood, David Allen Sherwood, 

Phillip K. Sherwood, Lynn E. McCann, Ray McCann, Stephen 

Schubach, Danny Ray Booher, Christina Faye Booher, William 

D. Hope, Lois Marlene Fletcher Stern, Velma Well, James L.
 

Kleeh, and Marilyn Kleeh,
 

Defendants Below, Respondents
 

MEMORANDUM DECISION 

Petitioners Dennis Kidder, Sandra Charlene Kidder Lutz, Marcia Lynn Mitchell, Nelson 

Kidder, Louise Craft, Elaine Kidder, Linda Carpenter, Lois Jane Ristau, Larry W. Kidder, 

Jeannette M. Kidder, and Robert E. Kidder (collectively, “the Kidder heirs”), by counsel 

Gerasimos Sklavounakis, appeal the order of the Circuit Court of Tyler County, entered on 

October 26, 2016, that granted the motion for summary judgment of Respondent Statoil USA 

Onshore Properties, Inc. (“Statoil”).1 Respondent Statoil appears by counsel Denise D. Pentino, 

Jacob A. Manning, Christopher J. Prezioso, and Stuart C. Hollimon. Respondents Ralph Koontz, 

Mary Jo Koontz, Barbara K. Baker, Linda P. Sherwood, David Allen Sherwood, Phillip K. 

Sherwood, Lynn E. McCann, Ray McCann, Stephen Schubach, Danny Ray Booher, Christina 

Faye Booher, William D. Hope, Lois Marlene Fletcher Stern, Velma Well, James L. Kleeh, and 

Marilyn Kleeh (collectively, “the Andrew and Okey Rice heirs”); Montani Energy, LLC 

(“Montani Energy”); and Whittle Corporation appear by counsel Debra L. Steed. 

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The same circuit court order granted default judgment against parties who failed to 

plead. The entry of default judgment is not an issue in this appeal. Numerous parties, including 

petitioners, filed motions for summary judgment; however, the order appealed by petitioners 

specifies that it addresses the motion for summary judgment and motion for default judgment of 

Statoil. 

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This Court has considered the parties’ briefs and the record on appeal. The facts and legal 

arguments are adequately presented, and the decisional process would not be significantly aided 

by oral argument. Upon consideration of the standard of review, the briefs, and the record 

presented, the Court finds no substantial question of law and no prejudicial error. For these 

reasons, a memorandum decision affirming the order of the circuit court is appropriate under 

Rule 21 of the Rules of Appellate Procedure. 

This matter concerns the mineral rights beneath approximately 540 acres of land situate 

in Tyler and Wetzel Counties. Four separate parcels of the subject acreage were conveyed in 

1910, by A.J. and Letha Rice, through four separate deeds (“the 1910 deeds”), to four of the 

Rices’ six children: Finley Rice, Andrew Rice, Okey Rice, and Mary Kidder. Each deed 

provided, in part: 

The parties of the first part reserve and except from the operation of this deed and 

do not convey the usual royalty of one eighth of all the oil produced and saved 

from said land and also the consideration for gas for each gas well drilled on said 

land and producing gas and used and marketed off premises for the use and 

benefit of all the grantors’ children, to wit: Finley Rice, Andrew Rice, Okey L. 

Rice, Mrs. Linda Rabel, Mrs. Belle Stamm, and Mrs. Mary F. Kidder, equally, to 

share and share alike each with the other therein. 

The elder Rices died intestate and, around 1916, the reserved interest passed in equal shares to 

the six children. Later, in 1919, Mary Kidder and her husband conveyed approximately 112 acres 

of their 116-acre tract to Andrew Rice, “subject to the same reservations as to oil and gas, 

contained in [the 1910 deeds]. . . .”2 Petitioners are the heirs of the interest of Mary Kidder. 

Between 2010 and 2014, Respondent Statoil acquired oil and gas leases on portions of 

the subject property through various transactions.3 Statoil designated certain of those tracts Nos. 

120, 121, 123, and 124. 

Prior to Statoil’s acquisitions, in 2001, Nancy Fout purchased a tax sale deed to what she 

asserted were the oil and gas rights of the Andrew Rice interest.4 Nancy Fout and her husband 

John Fout filed their “Complaint to Determine Title” in the Circuit Court of Tyler County in 

2 Pending is the motion of respondents Montani Energy, Whittle Corporation, and the 

Andrew and Okey Rice heirs to supplement the appendix record on appeal with the 1919 deed 

evidencing the transaction between Mary Kidder and Andrew Rice. Inasmuch as the 

establishment of the chain of title is unnecessary to our determination of the issues on appeal, 

respondents’ motion is denied. 

3 Since, Statoil has conveyed its leases to a third party. 

4 We note that the deed description indicated that Ms. Fout purchased “1/5 Roy 489.45A 

Elk Fork.” 

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early 2014, claiming a 1/5 interest in the oil and gas underlying the subject property.5 They 

named sixty-nine defendants, known and unknown. Whittle Corporation, per the Fouts’ 

complaint, had drilled the subject property “without clear title and in conflict with the alleged 

owners of the oil and gas,” filed an answer together with Montani Energy, to which Whittle 

Corporation had transferred some or all of its lease interest. The Kidder heirs filed an answer to 

the complaint, together with a counterclaim, cross-claim, and third-party complaint seeking to 

quiet title.6 Respondent Statoil answered the complaint, answered the Kidder heirs’ counterclaim, 

cross-claim, and third-party claim, and also filed a counterclaim, cross-claim, and complaint for 

declaratory judgment and to quiet title. 

Upon the filing of Respondent Statoil’s motion for summary judgment in late 2014, the 

circuit court found that the 1910 deeds reserved a royalty interest only, and the oil and gas 

ownership rights thus passed with the land conveyance. The circuit court ruled in favor of 

respondent, finding that respondent has a leasehold title to Tract Nos. 120, 121, and 124 of the 

subject acreage, and granted respondent’s motion for summary judgment. The Kidder heirs 

appealed; the Fouts did not. On appeal, petitioners assert two assignments of error. They argue, 

first, that the circuit court erred in finding that A.J. and Letha Rice reserved only a royalty 

interest in the 1910 conveyances rather than finding that A.J. and Letha Rice reserved the oil and 

gas in place. They argue, second, that the circuit court failed to address the ownership of all of 

the oil and gas that was conveyed in the 1910 deeds. The circuit court’s ruling on the Statoil 

summary judgment motion is before us. Accordingly, we apply a de novo standard of review. 

Syl. Pt. 1, Painter v. Peavy, 192 W.Va. 189, 190, 451 S.E.2d 755, 756 (1994). 

We begin with petitioners’ first assignment of error, in which they argue that the 1910 

deed reserved the oil and gas in place. We clarified in 1963: 

Where deeds are made by which several undivided interests in a tract of land are 

conveyed, with the right in the several grantees, their heirs and assigns, to lease 

the land for oil and gas purposes and to receive the carrying rental, or the bonuses 

and carrying rentals, but subject to reservations in favor of the several grantors of 

the oil and gas royalty, when produced, such reservations do not constitute a 

reservation of the oil and gas in place; but, on the contrary, such deeds constitute 

a conveyance of the entire tract of land, including the oil and gas in place, but 

subject to mere royalty interests in the oil and gas when such oil or gas, or both, 

are produced. 

Syl., Davis v. Hardman, 148 W. Va. 82, 82-83, 133 S.E.2d 77, 77 (1963). Petitioners argue that, 

prior to this clarification, and when the 1910 deeds were executed, “a reservation of the ‘usual 

royalty’ was actually a reservation of the oil and gas in place.” Relying on Toothman v. 

Courtney, 62 W.Va. 167, 58 S.E. 915 (1907) and Paxton v. Benedum-Trees Oil Co., 80 W.Va. 

5 According to the Fouts’ complaint, A.J. and Letha Rice’s daughter Linda Rabel died 

intestate and childless in 1926, and her interest thus passed to her siblings in equal share. 

6 It does not appear that Petitioner Robert E. Kidder was named in the Fouts’ complaint. 

However, the Fouts named “any other person . . . claiming any interest in the oil and gas. . . .” 

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187, 94 S.E. 472 (1917)(“A grant of the royalties, rents, and income arising from the production 

of the oil from land is a grant of the oil in such land”)7, petitioners urge us to determine that A.J. 

and Letha Rice reserved the oil and gas in place when conveying the surface acreage to four of 

their six children in 1910. 

But the holding of Paxton is not absolute in terms of the effect of a reservation of 

royalties. As we explained in Davis: 

The rule enunciated in Paxton . . . is but a rule of construction and the function of 

the Court in any situation such as that presented by the present case is to ascertain 

the true intent of the parties as expressed by them in the deed, lease or other 

written instrument under consideration. ‘A valid written instrument which 

expresses the intent of the parties in plain and unambiguous language is not 

subject to judicial construction or interpretation but will be applied and enforced 

according to such intent.’ Cotiga Development Co. v. United Fuel Gas Co., 

W.Va., pt. 1 syl., 128 S.E.2d 626. In the construction of a deed or other legal 

instrument, the function of a court is to ascertain the intent of the parties as 

expressed in the language used by them. [(Citations omitted.)] All rules of 

construction must yield to the expressed intention of the parties if that can be 

ascertained. Realty Securitites & Discount Co. v. National Rubber & Leather Co., 

122 W.Va. 21, 7 S.E.2d 49; 5 M.J., Deeds, Section 57, page 729. In the present 

case, therefore, there is no place for application of the rule enunciated in Paxton v. 

Benedum-Trees Oil Co., supra, if it appears that the intention of the parties is 

clearly expressed in the language which created the oil and gas reservations now 

under consideration. 

Davis, 148 W. Va. at 88-89, 133 S.E.2d at 81. 

Here, the 1910 deeds expressed that A.J. and Letha Rice reserved “the usual royalty of 

one eighth of all the oil produced and saved from said land” as well as “the consideration for gas 

for each gas well drilled on said land and producing gas and used and marketed off premises. . . 

.” The Davis Court addressed similar language emanating from a deed executed at the end of the 

nineteenth century, and thus prior to the 1910 deeds now before us: 

We observe also that the several reservations are of fractional portions of the oil 

and gas royalty ‘when produced.’ In McDonald v. Bennett, 112 W.Va. 347, 164 

S.E. 298, a case involving a question similar to that involved in the instant case, 

the Court emphasized the significance of the words, ‘that may be produced.’ See 

also Harris v. Cobb, 49 W.Va. 350, 355, 38 S.E. 559, 561. It is apparent from the 

words ‘when produced’ that the parties were not speaking in terms of an interest 

in the oil and gas then in place, but rather of the royalty interest which would 

follow production of oil or gas, or both. If the language of the several deeds were 

treated as constituting a reservation of the oil and gas in place, the words ‘when 

7 The Paxton Court was tasked with interpreting inconsistent deed terms. 

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produced’ would have to be regarded as meaningless surplusage. Such a 

construction also would be wholly out of harmony with a grant to the several 

grantees, their heirs and assigns of the right to lease the land for oil and gas 

purposes and to receive the bonuses and carrying rentals. On the other hand, a 

construction which places in the grantees the ownership of the oil and gas in 

place, subject to mere royalty rights, renders all of the language of the 

reservations meaningful and purposeful. 

Davis, 148 W. Va. at 91, 133 S.E.2d at 82. As with the McDonald reservation, the deed before us 

speaks of royalties realized once the land is “drilled” or the minerals are “produced” or 

“marketed.” The reservation vested in A.J. and Letha Rice (and their successors) no control over 

the drilling or production or marketing. It is apparent that A.J. and Letha Rice wished to retain 

the royalty interest for any oil that the landowners allowed to be produced, as well as for any gas 

that the landowners allowed to be marketed for use other than their own on-premises use. The 

language of the 1910 deeds, on its face, is clearly intended to reserve the royalty interest only. 

Accordingly, there is no error in the circuit court’s grant of summary judgment. 

We turn to the second assignment of error, in which petitioners assert that the circuit 

court “fail[ed] to address the ownership status of all the oil and gas in place that was subject of 

the 1910 [d]eeds. . . .” Specifically, petitioners argue, the circuit court failed to settle the matter 

of the ownership of Tract No. 123. In its memorandum in support of summary judgment filed in 

circuit court, Statoil requested specific relief, including a declaration “that [it] has valid and 

subsisting oil, gas and mineral leases covering all or a portion of the mineral in, on and under the 

lands referred to herein as [Tract Nos.] 120, 121, and 124. . . .” The motion before the circuit 

court sought no relief with respect to Tract No. 123, and the circuit court was not obligated to 

grant unrequested relief. We have long held that this Court will not review nonjurisdictional 

questions that were not decided by the lower court. Syl. Pt. 2, Duquesne Light Co. v. State Tax 

Dep’t, 174 W.Va. 506, 327 S.E.2d 683 (1984). Thus, as this issue is not properly before this 

Court, we find no merit is petitioners’ second assignment of error. 

For the foregoing reasons, we affirm. 

Affirmed. 

ISSUED: November 17, 2017 

CONCURRED IN BY: 

Chief Allen H. Loughry II 

Justice Robin Jean Davis 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Elizabeth D. Walker 

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