UNPUBLISHED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.
2

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Vacated in part and affirmed in part by unpublished opinion.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Unpublished opinions are not binding precedent in this circuit.
3

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 

 1 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.
4

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 
5

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 
6

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 
7

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 
8

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. 

 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.
9

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 
10

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 
11

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
12

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 
13

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.
14

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 
15

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 

 3 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.
16

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 
17

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 

 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.”
18

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 feesimple 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.
19

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 

 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.
20

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 mineralextraction 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 
21

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.
22

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.
23

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 
24

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 
25

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.
26

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