United States District Court, W.D. Virginia, Abingdon Division
Francis H. Casola and Erin Boyd Ashwell, Woods Rogers PLC,
Roanoke, Virginia, Aaron B. Houchens, Stanley, Houchens &
Griffith, Moneta, Virginia, and T. Shea Cook, T. Shea Cook,
P.C., Richlands, Virginia, for Plaintiffs Plum Creek
Timberlands, L.P., and Highland Resources, Inc.; Wade W.
Massie and Seth M. Land, Penn, Stuart & Eskridge,
Abingdon, Virginia, for Defendants Range Resources-Pine
Mountain, Inc., Range Resources-Appalachia, LLC, EQT
Production Company, and EQT Production Nora, LLC; J. Scott
Sexton, Gregory D. Habeeb, Kathleen L. Wright, and Daniel R.
Sullivan, Gentry Locke Rakes & Moore, LLP, Roanoke,
Virginia, for Defendants Edwin F. Legard, Jr., ; R. Lucas
Hobbs, Elliott Lawson & Minor, P.C., Bristol, Virginia,
for Unknown Descendants, etc., of G.W. Charles,, and Other
Parties Unknown; and John M. Lamie, Browning, Lamie &
Gifford, P.C., Abingdon, Virginia, for Defendants John J.
Horschel,, Guardian ad Litem for Unknown Successors in
Interest to Yellow Poplar Lumber Company, Inc., and Trustee
for Yellow Poplar Lumber Company, Inc.
AMENDED OPINION AND ORDER
P. Jones United States District Judge.
case involves a dispute over ownership of the gas estate in
land located in this judicial district. The principal parties
have moved for summary judgment, and their motions are now
before me for decision. The plaintiffs, Plum Creek
Timberlands, L.P. (“Plum Creek”) and its
affiliate, Highland Resources, Inc. (which will be referred
together as “Plum Creek/Highland”), have
requested that summary judgment be entered in their favor and
against the various defendants. The defendants, Range
Resources-Pine Mountain, Inc., Range Resources-Appalachia,
LLC, EQT Production Company, and EQT Production Nora, LLC
(“Range/EQT”) have requested that summary
judgment be entered in their favor and against both the
plaintiffs and their codefendants. Finally, the defendants
Edwin F. Legard, Jr., Elizabeth Anne Cox, Trustee of the
Elizabeth Anne Cox Trust, William G. Baker, Jr., Trustee of
the Emily P. Baker Generation Skipping Trust, Matthew and
Michael Trivett, individually and as Trustees of the Trivett
Family Trust, Donald A. McGlothlin, Jr., Leah McGlothlin,
Kevin T. McGlothlin, Wayne Burton, Mary LePerla, and Joseph
LaPerla (“Baker/Trivett/McGlothlin”) have moved
for summary judgment in their favor and against the
plaintiffs and their codefendants.
parties agree that the gas estate in question was owned by a
corporation named Yellow Poplar Lumber Company, Inc.
(“Yellow Poplar”), which went bankrupt in 1928.
The issue in this case is what became of that gas estate.
There are at least four possibilities. Plum Creek/Highland
claim that a 1929 deed from the bankruptcy trustee conveyed
the gas estate to their predecessor in title. Range/EQT
contend that the gas estate was conveyed prior to bankruptcy
by deeds executed in 1921, 1924, and 1925 to Range/EQT's
predecessor in title.Baker/Trivett/McGlothlin argue that another
deed from the bankruptcy trustee in 1930 conveyed the gas
estate to their predecessor in title. Finally, it is possible
that a certain portion of the gas estate remains an asset to
be administered in the reopened bankruptcy case.
parties' interest in this case is exploitation of the
natural gas underlying the land, particularly the natural gas
known as coalbed methane, which resides in coal. Although it
is connected to coal, coalbed methane gas is recognized in
Virginia as a distinct property estate that can be severed
and owned separately from other interests in the land.
See EQT Prod. Co. v. Adair, 764 F.3d 347, 352-53
(4th Cir. 2014).
these conflicting motions requires a careful review - in
light of Virginia law - of the evidence submitted and a
determination as to whether the dispute regarding ownership
is susceptible to resolution on summary judgment.
Creek initially filed suit in the Circuit Court
of Buchanan County, Virginia, seeking ownership of the
subject gas estate. The suit named the defunct Yellow Poplar
as the only defendant. Yellow Poplar failed to answer the
suit, and the court declared Plum Creek the owner of all
property previously owned by Yellow Poplar in Buchanan
Range/EQT contested the validity of the court's order on
the ground that they were not parties to the suit, Plum Creek
obtained an order vacating the prior default judgment. Plum
Creek then filed an Amended Complaint in state court against
fifty-two different defendants, including Range/EQT and
Baker/Trivett/McGlothlin. Range/EQT timely removed the case
to the United States Bankruptcy Court for the Western
District of Virginia. At the request of Plum Creek, this
court withdrew reference from the bankruptcy court.
See 28 U.S.C. § 157(d).
new parties were added and the present summary judgment
motions were filed. However, before hearing argument on the
motions, and in order to ensure that all necessary parties
were before the court, I directed Plum Creek/Highland to seek
to reopen the Yellow Poplar bankruptcy case in the District
of South Carolina and add the bankruptcy trustee as a party
to this action, since it had become evident that one possible
resolution of the case is that the gas estate had never been
conveyed by Yellow Poplar. The bankruptcy case was
subsequently reopened and transferred to this court. Attorney
John M. Lamie was appointed by this court as the substitute
trustee for Yellow Poplar's estate.
motions for summary judgment have now been fully briefed and
argued and are ripe for decision.
Factual Background and Claims of the Parties.
following facts are taken from the summary judgment record.
land in question is located in Buchanan and Dickenson
counties in the mountains of southwest Virginia. In 1906,
Excelsior Coal and Lumber Corporation deeded more than 22,
000 acres of land to Yellow Poplar (the “Excelsior
deed”). Included within those 22, 000 acres were the
three tracts of land at issue in this case, which the
Excelsior deed identified as Tracts 4, 10, and 11.
Excelsior deed stated that Tract 4 was a 157-acre tract
located in Dickenson County. Tract 10 was a 1, 000-acre
surface tract located in Buchanan County, and Tract 11 was a
3, 877.5-acre mineral tract also located in Buchanan County.
The entirety of Tract 10 overlays a portion of Tract 11.
conveying the tracts of land to Yellow Poplar, the Excelsior
deed reserved for Excelsior all of the “oil, coal and
other minerals, except stone, fire clay, gas and cement
rock.” (ECF No. 331-1, p. 255.) The parties thus agree that
Excelsior conveyed the gas estate to Yellow Poplar. What
happened next is in dispute.
G.B. Long and Big Sandy Conveyances.
conveyances that serve as the basis for the claim brought by
Range/EQT begin with a 1921 deed by which Yellow Poplar
conveyed to G.B. Long eight tracts of land in Buchanan and
Dickenson counties (the “Long deed”). Two of
these eight tracts were derived from the Excelsior deed. The
Long deed did not convey any interest in Tracts 4, 10, or 11.
However, the Long deed did contain the following language,
stating that it
excepts and reserves from the operation of this conveyance
and from all of the lands herein mentioned and conveyed, all
of the coal, oil, gas, and other minerals, mining rights and
easements, timber and timber rights, privileges and
easements, and all other rights, privileges and easements,
which are or have been reserved, excepted or contained in
those certain instruments of conveyance to [Yellow Poplar] to
which special reference is here made for a more particular
description of said exceptions, reservations, rights,
privileges and easements as follows:
1. Deed by the Excelsior Coal & Lumber Co. . . . to
Yellow Poplar Lumber Co., dated January 5,
(ECF No. 331-6, p. 564.)
and 1925, Yellow Poplar conveyed certain tracts of land to
Big Sandy Fuel Corporation (“Big Sandy”),
Range/EQT's predecessor in interest. The 1924 deed
generally described the land that was to be conveyed, and it
indicated that a survey would be completed so that the land
could be described with more specificity in a later deed. The
1924 deed also conveyed the rights to gas and certain other
minerals from the land previously conveyed to Long,
“together with all other property rights and privileges
reserved” in the Long deed. (ECF No. 331-2, p. 468.)
The 1924 deed did not expressly convey any interest in Tracts
4, 10, or 11.
the land was surveyed, Yellow Poplar executed a confirmatory
deed in 1925 that contained a metes and bounds description of
the land conveyed to Big Sandy. (ECF No. 331-3.) This deed
stated that it was conveying 11, 000.97 acres to Big Sandy,
which was composed of three tracts containing 445.18, 788.86,
and 9, 766.93 acres, respectively. These three tracts do not
contain any part of Tracts 4, 10, or 11. The 1925 deed
further said that it conveyed
coal, gas, stone, fire clay and cement rock in, on upon and
under all the lands in the Counties of Dickenson and
Buchanan, Virginia, heretofore sold by the party of the first
part to G.B. Long, by deed dated March 7, 1921 . . . and
excepted and reserved by the party of the first part in said
deed, together with all other estates property and property
rights, and privileges, rights and easements excepted and
reserved in said deed. . . . It is the intention of this
paragraph to release, quit claim and convey by the party of
the first part to the party of the second part any ...