West Virginia Supreme Court Defines "Surface Only"

Years ago, in a poorly-written decision, the WV Supreme Court decided that a conveyance of "surface only" was inherently  ambiguous in the case of  Ramage v. South Penn Oil Co., 94 W.Va. 81, 118 S.E. 162 (1923).  In a recent well-written opinion by Justice Ketchum,  the Supreme Court reversed Syllabus Point 1 of Ramage and gave those words a reasonable, set definition.

The word “surface,” when used in an instrument of conveyance, generally means the exposed area of land, improvements on the land, and any part of the underground actually used by a surface owner as an adjunct to surface use (for example, medium for the roots of growing plants, groundwater, water wells, roads, basements, or construction footings).

You wouldn't think that "surface only", in a property conveyance, would be unclear, but you would be wrong. I have exactly this issue in a pending case, and I look forward to citing the court's decision.

The decision is Faith United Methodist v. Morgan, Case No. 12-0080 (June 13, 2013). Thanks to Tom Hurney for writing about this in one of  his excellent emails on behalf of the Defense Trial Counsel.