PRESENT: Lemons, C.J., Goodwyn, Millette, Mims, Powell, and 

Kelsey, JJ., and Koontz, S.J. 

MALVA BAILEY 

 OPINION BY 

v. Record No. 141702 JUSTICE S. BERNARD GOODWYN 

 April 16, 2015 

CONRAD SPANGLER, DIRECTOR OF 

THE VIRGINIA DEPARTMENT OF 

MINES, MINERALS AND ENERGY 

UPON QUESTIONS OF LAW CERTIFIED BY 

THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF VIRGINIA 

Pursuant to Article VI, Section 1 of the Constitution of 

Virginia and our Rule 5:40, we accepted the following certified 

questions from the United States District Court for the Eastern 

District of Virginia: 

(1) Did the enactment of Virginia Code section 

55.1-154.21

 in 1981, see Acts of Assembly 1981, c. 

291, change the ownership of the shell, container 

chamber, passage, and space opened underground for 

the removal of the minerals to the owner of the 

minerals for coal severance deeds executed before 

July 1, 1981 that did not otherwise provide for 

ownership of the shell, container chamber, passage, 

and space opened underground for the removal of the 

minerals? In other words, does the presumption of 

mine void ownership created by the statute apply to 

deeds executed before July 1, 1981? 

 1

 Because Code § 55.1-154.2 does not presently exist in the 

Code of Virginia, we interpret the federal district court’s 

reference to the relevant statute as a reference to Code § 55-

154.2. We note that all other references to this statute in 

the federal district court’s order are to Code § 55-154.2. 
2

(2) If the answer is yes, and the presumption 

applies to coal severance deeds executed before July 

1, 1981, and assuming that a predecessor in interest 

executed a valid coal severance deed in 1887, then 

under Virginia law what, if any, ownership interest 

in the mine voids would a subsequent grantee surface 

owner take if she were deeded the land in 1983? 

Would that grantee have any rights to the mine void 

under Clayborn v. Camilla Red Ash Coal Co., 128 Va. 

383 (1920)? 

Factual Background 

 On May 5, 1887, George W. Sutherland and his wife severed 

the mineral estate underlying their parcel of property in 

Dickenson County, Virginia, from the surface estate2

 (Sutherland 

surface estate) and conveyed “all the coal, iron, petroleum oil 

and Gass [stet] and other ores and minerals lying and being in 

upon and under all that certain tract of land” to the Virginia 

Coal and Coke Company. The severance deed did not specify who 

would own the resulting mine void3 after all of the ores and 

minerals were removed. On May 10, 1983, Malva Bailey (Bailey) 

 2

 “‘Surface estate’ is a term intended generally to refer 

to the rights of the owner of that portion of the original 

tract of land that has not been severed by deeds granting 

rights in the mineral estate or other resources of the tract of 

land.” Levisa Coal Co. v. Consolidation Coal Co., 276 Va. 44, 

57 n.5, 662 S.E.2d 44, 51 n.5 (2008). 

3

 As the federal district court indicates in its order 

certifying the questions to this Court, “mine voids” are “those 

spaces or passageways created from the removal of coal hundreds 

of feet below the surface.” Bailey v. Spangler, No. 3:14-cv00556, at *1 (E.D. Va. filed Dec. 1, 2014). 
3

and her husband acquired ownership of a portion of the 

Sutherland surface estate. 

Procedural Background 

 On July 7, 2014, Bailey filed a civil complaint in the 

Circuit Court of the City of Richmond, asking the court for a 

declaratory judgment in her favor, pursuant to 42 U.S.C. § 1983 

(2012 & Supp. I 2013), regarding the alleged taking of her real 

property by Conrad Spangler (Spangler), the Director of the 

Virginia Department of Mines, Minerals and Energy. She alleged 

that by issuing mining permits authorizing Dickenson-Russell 

Coal Company, LLC (Dickenson-Russell) “to conduct mine 

operations” in the mine void beneath her property, Spangler 

took her private property rights for private use, purportedly 

pursuant to Code § 55-154.2.4

 Bailey asked the court to declare 

“Chapter 695, Virginia Acts of Assembly 2012 Session, an act to 

amend and reenact §§ 45.1-181 and 55-154.2 of the Code of 

Virginia, relating to mine voids” unconstitutional both 

facially and as applied because it deprived her of her private 

 4

 Bailey’s constitutional challenge now pending before the 

federal district court is directed at the 2012 Act that amended 

and reenacted Code § 55-154.2. 2012 Acts ch. 695. Code § 55-

154.2 was originally enacted on July 1, 1981. 1981 Acts ch. 

291. The federal district court’s certified questions pertain 

to a provision of Code § 55-154.2 as enacted in 1981. Thus, 

references to the statute in this opinion are to the 1981 

version of the statute unless otherwise noted. 
4

property rights in the mine void underneath her property in 

violation of the Fifth and Fourteenth Amendments to the 

Constitution of the United States. 

Spangler removed the case to the United States District 

Court for the Eastern District of Virginia. He then filed a 

motion to dismiss, arguing that Bailey did not own the mine 

void beneath her property because Code § 55-154.2 divested her 

predecessors in title of ownership of the mine void before 

Bailey acquired her property in 1983. According to the federal 

district court, under Spangler’s view, “the coal owner became 

the actual owner [of the mine void] on July 1, 1981,” when Code 

§ 55-154.2 went into effect. 

Analysis 

 In Clayborn v. Camilla Red Ash Coal Co., 128 Va. 383, 390, 

105 S.E. 117, 119 (1920), a case of first impression, this 

Court held that a surface estate owner retains ownership of a 

mine void if the severance deed does not expressly convey the 

mine void to the mineral estate owner. Code § 55-154.2, 

originally enacted by the General Assembly in 1981, is entitled 

“Presumption regarding estate of owner of mineral rights” and, 

in contravention to the holding in Clayborn, states as follows: 

Except as otherwise provided in the deed by which the 

owner of minerals derives title, the owner of minerals 

shall be presumed to be the owner of the shell, 

container chamber, passage and space opened 

underground for the removal of the minerals, with full 
5

right to haul and transport minerals from other lands 

and to pass men, materials, equipment, water and air 

through such space. No injunction shall lie to 

prohibit the use of any such shell, container chamber, 

passage or space opened underground by the owner of 

minerals for the purposes herein described. The 

provisions of this section shall not affect 

contractual obligations and agreements entered into 

prior to July one, nineteen hundred eighty-one. 

Bailey argues that Code § 55-154.2 explicitly states that 

it does not apply to deeds that were executed before the 

statute became effective in 1981 and that Code § 55-154.2 did 

not divest her predecessors in title of their ownership of the 

mine void underlying the surface estate. Moreover, Bailey 

contends that interpreting Code § 55-154.2 to apply to deeds 

that were executed before 1981 would give “retroactive effect” 

to the statute, which is disfavored by this Court. Because the 

relevant severance deed in this instance was executed in 1887, 

she argues that this Court’s rule from Clayborn applies and 

that she owns the mine void beneath her portion of the 

Sutherland surface estate. 

According to Spangler, the purpose of Code § 55-154.2 “was 

to facilitate mineral extraction from mines” by removing the 

ability of a surface owner, without an express grant of 

ownership of a mine void, to impede mining operations. 

Spangler contends that deeds are not “contractual obligations 

and agreements” in the context of Code § 55-154.2. He claims 

that exempting severance deeds executed prior to July 1, 1981, 
6

from the application of the statute would frustrate the purpose 

of the statute because most severance deeds predate the 

effective date of the statute. Thus, he concludes that the 

presumption of mine void ownership in Code § 55-154.2 applies 

to the 1887 deed and that Bailey has no ownership interest in 

the mine void below the surface estate she purchased in 1983. 

Certified Question (1) 

The first certified question of law relates to whether the 

presumption of mine void ownership created by Code § 55-154.2 

applies to deeds executed prior to July 1, 1981. 

Our goal in statutory interpretation is to carry out the 

General Assembly’s intent “as expressed by the language used 

unless a literal interpretation of the language would result in 

a manifest absurdity.” Board of Supervisors v. Windmill 

Meadows, LLC, 287 Va. 170, 179-80, 752 S.E.2d 837, 842 (2014) 

(citation and internal quotation marks omitted). We apply the 

plain meaning of unambiguous statutory language. Newberry 

Station Homeowners Ass’n v. Board of Supervisors, 285 Va. 604, 

614, 740 S.E.2d 548, 553 (2013). 

Virginia law does not favor retroactive application of 

statutes. Windmill Meadows, 287 Va. at 180, 752 S.E.2d at 843 

(collecting cases). For this reason, we interpret statutes to 

apply prospectively “unless a contrary legislative intent is 
7

manifest.” Id. (citation and internal quotation marks 

omitted). “[N]ew legislation will ordinarily not be construed 

to interfere with existing contracts, rights of action, suits, 

or vested property rights . . . .” Harbour Gate Owners’ Ass’n 

v. Berg, 232 Va. 98, 103, 348 S.E.2d 252, 255 (1986); see also

Gloucester Realty Corp. v. Guthrie, 182 Va. 869, 875, 30 S.E.2d 

686, 688-89 (1944) (“The general rule is that no statute, 

however positive in its terms, is to be construed as designed 

to interfere with existing contracts, rights of action, or 

suits, and especially vested rights, unless the intention that 

it shall so operate is expressly declared.”). Absent an 

express manifestation of intent by the legislature, this Court 

will not infer the intent that a statute is to be applied 

retroactively. See Ferguson v. Ferguson, 169 Va. 77, 87, 192 

S.E. 774, 777 (1937) (“It is reasonable to conclude that the 

failure to express an intention to make a statute retroactive 

evidences a lack of such intention.”). 

The last sentence of Code § 55-154.2 exempts from the 

statute’s application “contractual obligations and agreements 

entered into prior to [July 1, 1981].” Bailey asserts that a 

deed is clearly a contractual obligation or agreement and that 

the provisions in Code § 55-154.2 concerning the presumption of 
8

mine void ownership should not apply to deeds executed before 

July 1, 1981. 

Spangler argues that the plain meaning of “contractual 

obligations and agreements” in Code § 55-154.2 does not include 

severance deeds. Spangler also argues that the General 

Assembly purposefully differentiated between deeds on the one 

hand and contractual obligations and agreements on the other, 

and he notes that the General Assembly uses the terms within 

two sentences of each other in different ways. It is pointed 

out that the 1981 statute uses the word “deed” in the “except 

as” provision but the words “contractual obligations and 

agreements” in the “shall not affect” provision, and Spangler 

asserts that the Court should assume that different terms in 

the same statute are presumed to have different meanings. See

Klarfeld v. Salsbury, 233 Va. 277, 284-85, 355 S.E.2d 319, 323 

(1987). Spangler concludes that the natural reading of Code § 

55-154.2 is that the statute applies retroactively to all deeds 

(unless the deed itself provides for ownership or use of the 

mine void) but not to “contractual obligations and agreements 

entered into prior to July 1, 1981.” 

The Court need not parse the language of the statute 

because we are of the opinion that both interpretations reach 

the same result. If, as Bailey contends, a “deed” is a 
9

“contractual obligation” or “agreement” within the context of 

Code § 55-154.2, then the statute is explicitly nonretroactive. 

However, even assuming as Spangler contends, that a “deed” is 

not a “contractual obligation” or “agreement,” there remains no 

manifest statement concerning the retroactive application of 

the statute to deeds. 

We may not infer the retroactive application of Code § 55-

154.2 to deeds executed prior to July 1, 1981, based upon the 

statute’s express exemption of contractual obligations and 

agreements entered into prior to that date. Also, we are 

unpersuaded by the argument that exempting deeds executed prior 

to the statute’s enactment will unduly limit the statute’s 

application. That result in itself is not indicative of a 

contrary intent by the General Assembly because the legislature 

could have expressly stated that the statute retroactively 

applies to deeds, if it had desired to do so. 

Nothing in the language of Code § 55-154.2 indicates a 

manifest legislative intent to retroactively apply the 

presumption of mine void ownership to deeds executed before the 

date the statute was enacted. Therefore, we hold that the 

presumption of mine void ownership created by Code § 55-154.2 

does not apply to deeds executed before July 1, 1981. 

The first certified question is thus answered in the 

negative. 
10

Certified Question (2) 

 Having answered Certified Question (1) in the negative, 

the Court concludes that Certified Question (2) is now moot. 

Certified Question (1)answered in the negative.