Com. of PA, PA Game Comm. v. Int'l. Dev. Corp. & Atlantic Hydrocarbon (Bd. of Property) ( 2022 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Commonwealth of Pennsylvania, :
Pennsylvania Game Commission, :
Petitioner :
:
v. : No. 497 C.D. 2021
: Submitted: February 7, 2022
International Development :
Corporation and Atlantic :
Hydrocarbon (Board of :
Property), :
Respondents :
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE STACY WALLACE, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE CEISLER FILED: March 4, 2022
Petitioner Commonwealth of Pennsylvania (Commonwealth), Pennsylvania
Game Commission (Commission) petitions for review of the Board of Property’s
(Board) final adjudication and order (Final Adjudication), dated April 15, 2021.
Through this Final Adjudication, the Board determined that Respondent
International Development Corporation (IDC), rather than the Commonwealth,
owns a Bradford County property’s “mineral rights,” due to language in a century-
old deed for that property between a previous owner and the Commonwealth. After
thorough consideration, we affirm.
I. Background
The particulars of the acts that ultimately gave rise to the matter currently
before us are neither recent, nor disputed by the parties to this matter. The affected
property consists of 2,094 acres of wild, or “unseated,” land in Bradford County,
which were purchased by Thomas E. Proctor and Jonathan A. Hill from the Schrader
Mining & Manufacturing Company in 1893 (Property).1 Final Adjudication, F.F.
1
Both the Commission and IDC agree with the Board that the Property was “unseated”
land at all times relevant to this matter’s disposition. See Final Adjudication, Findings of Fact
(F.F.) ¶9; Commission’s Br. at 16; IDC’s Br. at 5, 15. As explained by our Supreme Court in
Herder Spring Hunting Club v. Keller:
Prior to 1947, Pennsylvania’s land was categorized as either seated
or unseated land.[] Seated land was property that had been
developed with residential structures, had personal property upon it
that could be “levied upon for the tax due,” or was producing regular
profit through cultivation, lumbering, or mining. Robert Grey
Bushong, Pennsylvania Land Law, Vol. 1, § 469(II) at 500-501
(1938). Unseated land is best understood as “wild” land but included
any land that did not meet the requirements of being seated. Id. §
469(IV) at 501. The determination of whether land was seated or
unseated land was entirely based upon the “eye of the assessor,” who
would traverse the county determining whether land was being
developed and then “return” the land to the county commissioners
to assess the property for taxation. Stoetzel v. Jackson [], 105 Pa.
562, 567 (Pa. 1884).
Between the Revolution and the early 1800s, large tracts of
wilderness in the interior of Pennsylvania were owned by
speculators who lived on the coast in hopes that the land would
increase in value as the population increased. Bushong, § 470 at 502.
Many of these landowners neither developed nor paid the taxes on
the land. Id. Notably, the owners of unseated lands were not always
known by the county authorities such that personal notice could not
be given. Long v. Phillips, . . . 88 A. 437, 438 ([Pa.] 1913) (observing
that for unseated land “it frequently occurs that the owner’s deed is
not recorded, his name is not registered, he is not known, no one is
in actual possession, and there is no apparent owner or reputed
owner in the neighborhood of the property[]”). The Commonwealth
developed different sets of land tax laws to address the difficulties
[regarding] collecting tax on unseated land. Bushong, § 472 at 503.
If the assessor determined that the land was seated, the land was
taxed to the land owner, who was personally responsible for the
payment of the taxes which could be collected against his or her
personal property. Id. [§] 469(II) at 501. The owner of unseated land,
(Footnote continued on next page…)
2
¶¶1, 3; Reproduced Record (R.R.) at 326a-29a.2 The following year, 1894, Proctor
and Hill sold the Property to the Union Tanning Company (Union); the deed that
memorialized this sale contained a clause, which stated that Proctor and Hill
expressly reserve and save to themselves, their heirs and
assigns, all the minerals, coal, oil, gas or petroleum found
now or hereafter on or under the surface of any or all of
the lands described in each of the above mentioned parts
or division and conveyed by this indenture, together with
the right and privilege of ingress, egress and regress upon
said lands for this purpose of prospecting for, or
developing, working or removing the same.
however, was not personally responsible for the payment of taxes,
which were instead imposed on the land itself, in the name of the
person to whom the original warrant had been issued. See Proctor
v. Sagamore Big Game Club, 166 F. Supp. 465, 475 (W.D. Pa.
1958), aff’d, 265 F.2d 196 (3d Cir. 1959). The current owner’s name
would be used “only for the purpose of description.” F.H. Rockwell
& Co. v. Warren County, . . . 77 A. 665, 665-666 ([Pa.] 1910). As
explained by this Court in 1841,
[T]he land itself, and not the owner of it, is debtor for the
public charge; and it is therefore immaterial, at the moment
of sale, what may be the state of the ownership, or how many
derivative interests may have been carved out of it. With
these the public has no concern. They are sold with the land,
just as a remainder would be sold with the particular estate.
Strauch v. Shoemaker, 1 Watts & Serg. 166, 175 (Pa. 1841)
(quotation marks omitted); see also Bannard v. New York State
Natural Gas Corp., . . . 293 A.2d 41, 49 ([Pa.] 1972) (holding that
“it is immaterial that the name of the owner as given in the
assessment is inaccurate, since no personal liability is involved; the
land, not the owner, is looked to for payment of delinquent taxes”).
As was true for seated land, . . . unseated land could be severed into
surface and subsurface estates, which could be separately assessed,
taxed, and, if necessary, sold at tax sale. Rockwell, 77 A. at 666.
143 A.3d 358, 363-64 (Pa. 2016) (footnote omitted).
2
The Commission has inexplicably seen fit to submit a reproduced record containing a
number of pages that are illegible and/or upside down.
3
Final Adjudication, F.F. ¶5; R.R. at 42a; see R.R. at 30a-44a (1894 deed from
Proctor and Hill to Union).3 This reservation was never reported to the County
Commissioners of Bradford County and, as a result, the Property “was [still]
assessed and taxed as a whole” after the sale. Final Adjudication, F.F. ¶10. Nearly a
decade passed, before Union deeded the Property’s surface interests to the Central
Pennsylvania Lumber Company (CPLC) in 1903. Id., F.F. ¶6; R.R. at 345a-51a.
Subsequently, property taxes assessed against warrants4 encompassing both the
3
Pennsylvania law recognizes three discrete estates in land: the
surface estate, the mineral estate, and the right to subjacent (surface)
support. . . . Because these estates are severable, different owners
may hold title to separate and distinct estates in the same land. The
Pennsylvania rule permitting severance of the mineral estate for coal
and other solid minerals applies with equal force to oil and gas. As
with any estate in land, the owner of the mineral estate may convey
his entire bundle of rights in fee or may grant a mere portion thereof
via leasehold.
Pa. Game Comm’n v. Seneca Res. Corp., 84 A.3d 1098, 1105 (Pa. Cmwlth. 2014) (citations and
some punctuation omitted).
4
A land warrant is “[a] document entitling a person to receive from the government a
certain amount of land by following prescribed legal steps.” BLACK’S LAW DICTIONARY 252, 956,
1234 (9th ed. 2009). This kind of document formed an integral part of
Pennsylvania’s early land law[, which] developed from policies
instituted by William Penn’s sons in an attempt to encourage
organized settlement and payment for the land. Generally, a person
seeking to purchase land would submit an application to the Land
Office. The secretary would issue a warrant, which described the
land, the property adjoining the land, the purchaser, the purchase
price, and the terms of sale. The issuance of the warrant triggered
the surveyor general’s responsibility for surveying the land, which
would produce a survey map that identified important features on
the land and adjoining properties and town and county boundaries,
which helped to create cohesive maps of the area. Upon completion
of the survey by the deputy surveyor, the surveyor general would
verify the acreage, which included a six percent allowance for roads.
(Footnote continued on next page…)
4
Property and other nearby swaths of land subsequently fell into arrears, which led to
Bradford County selling all of that land to Calvin H. McCauley, Jr. via tax sale in
1908. Final Adjudication, F.F. ¶¶11-13; R.R. at 352a-57a. This tax sale “washed”
the Property’s title and reunified its estates, such that McCauley consequently owned
the entirety of the Property, both above and below ground. Final Adjudication, F.F.
¶13.5 McCauley then conveyed the Property back to CPLC in 1910. Id., F.F. ¶14;
R.R. at 358a-61a.
After the survey was returned, a patent would be issued providing
clear title from the state or the proprietor (such as the Penn Family)
to the original purchaser of the property.
Herder Spring, 143 A.3d at 360 n.3.
5
Title washing was a valid aspect of our Commonwealth’s property law at that time and
came into play in instances where ownership rights to an unseated parcel’s above- and below-
ground estates had been separated, but that split had not been recorded and the land had
consequently been assessed and taxed as an undivided unit. Herder Spring, 143 A.3d at 366-67. If
the parcel was subsequently sold at tax sale, that sale would “wash” the land’s title, such that any
severance of subsurface and surface interests, as well as others’ claims to title over any of the
severed pieces, was swept away. Id; see Powell v. Lantzy, 34 A. 450, 451 (Pa. 1896) (internal
citations and quotation marks omitted) (“In speaking of taxes on unseated lands, which were not a
charge against the owner, . . . there was nothing in reason or law to prevent the holder of a defective
title from purchasing a better one at a tax sale. The taxes under which the sale was made in this
case were on unseated lands, and there was no personal responsibility on the owner therefor. The
land alone was liable.”).
The parties are in agreement with the Board that the 1908 sale washed the Property’s title.
See Commission’s Br. at 13; Commission’s Reply Br. at 4-5; IDC’s Br. at 15. However, that
agreement only settles the title wash issue for this case, not for all matters relating to the Property.
As cogently noted by the Commission,
just because [it] and IDC stipulated that Proctor’s interests were
extinguished due to title wash[] does not mean that . . . Proctor[’]s
[putative successors in interest] (or other parties) are bound by that
stipulation[.]
....
(Footnote continued on next page…)
5
CPLC held on to the Property for the next 10 years, until it divested itself in a
manner which, nearly a century later, gave rise to the dispute that currently bedevils
both the Commission and IDC. In 1920, CPLC sold 7,249.9 acres of land in Bradford
County, encompassing both the Property and nearby acreage, to the Commonwealth
for $18,722.25. Final Adjudication, F.F. ¶16; R.R. at 66a-70a. The deed
memorializing this sale contained two clauses which are of particular import. The
first (First Clause) stated that
[t]his conveyance is made subject to all the minerals, coal,
oil, gas or petroleum found now or hereafter on, or under
the surface on any or all of the lands described in each of
the above mentioned parts or divisions [of the 1920 deed];
together with the right and privilege of ingress, egress and
regress upon said lands for the purpose of prospecting for,
or developing, working or removing the same, as fully as
said minerals and mineral rights were excepted and
reserved in deed dated October 27, 1894, from . . . Proctor
[and Hill] to . . . Union . . . , recorded in the Office for
recording deeds in Bradford County in deed book Vol.
205, page 436.
Final Adjudication, F.F. ¶17; R.R. at 69a-70a. The second (Second Clause)
articulated that the conveyance was “[a]lso subject to all the reservations,
exceptions, covenants and stipulations contained in said recited [1894] deed from . .
. Proctor [and Hill] to . . . Union . . . and in deed from . . . Union . . . to [CPLC],
above recited, dated May 25, 1903, of record as aforesaid in deed book Vol. 251,
If one reads the deeds in the chain of title, and not just mere excerpts,
it becomes abundantly clear the titles are complicated, at best. There
are also intervening tax sales and . . . questions about the effect of
those sales . . . which continue [to be litigated] in [f]ederal [c]ourt,
despite the agreement of IDC and the [Commission] as to the [sales’]
effect. Indeed, the “winner” of this case today [will] only earn the
prize of future litigation in federal court and elsewhere.
Commission’s Reply Br. at 2, 14.
6
page 520.” R.R. at 70a.6 Thereafter, in 1942, CPLC executed a quitclaim deed,7 via
which it “release[d] and quit claim[ed] to [the Keystone Tanning and Glue
Company] any gas, oil and mineral rights, if any, which [CPLC] may have [had],
but no greater right, title and interest of, in and to such gas, oil and mineral rights
than [was then] held by [CPLC] in lands all located in Bradford County, [including
the Property.]” Id. at 73a; see Final Adjudication, F.F. ¶21. These putatively separate
interests were subsequently resold or transferred multiple times over the ensuing
years, until IDC ultimately purchased them in 2000. Final Adjudication, F.F. ¶¶21-
6
The Final Adjudication purports to include a verbatim reproduction of the Second Clause,
but instead contains an inaccurate recitation that omits a small but critical part of that Clause.
Compare Final Adjudication, F.F. ¶18 (“Also subject to all the reservations, exceptions, covenants
and stipulations contained in said recited deed from Thomas E. Proctor, et al[.] to . . . Union . . . to
[CPLC], above recited, dated May 25, 1903, of record as aforesaid in deed book Vol. 251, page
520”), with R.R. at 70a.
7
Quit-claim deeds, long known to the law, are used when a party
wishes to sell or otherwise convey an interest he may think he has
in land but does not wish to warrant his title. It does not purport to
convey anything more than the interest of the grantor at the time of
its execution. 16 Am.Jur. p. 560, sec. 219: ‘The distinguishing
characteristic of a quit-claim deed is that it is a conveyance of the
interest or title of the grantor in and to the property described,
rather than of the property itself.’ (Emphasis added.) . . .
“One who receives a quit-claim deed to a property must proceed
with caution if he seeks to possess himself of that property. By
securing a quit-claim deed he has eliminated only one person who
might bar his ingress to that property. A quit-claim deed contains no
covenant of peaceful possession.”
In re Delinq. Tax by Elk Cnty. Tax Claim Bureau Held on Sept. 11, 2000 Parcel, 793 A.2d 1025,
1030 (Pa. Cmwlth. 2002) (quoting Greek Cath. Congregation of Borough of Olyphant v. Plummer,
32 A.2d 299, 300 (Pa. 1943), and Greek Cath. Congregation of Borough of Olyphant v. Plummer,
12 A.2d 435, 437 (Pa. 1940)).
7
22, 24-33, 36; see R.R. at 76a-77a, 82a-84a, 86a-88a, 90a-92a, 94a-96a, 98a-103a,
105a-08a, 110a-13a, 115a-23a, 125a-35a, 158a-63a.8
As for the Commonwealth, its interest in the Property has been “owned,
controlled[,] and managed” by the Commission since the Commonwealth purchased
it in 1920. R.R. at 243a; see Final Adjudication, F.F. ¶39. In keeping with this, the
Property is now part of State Game Lands Number 12, which is administered by the
Commission. Id. In 2013, the Commission entered into an agreement with Chief,
Radler 2000 Limited Partnership, and Enerplus Resources (USA) Corporation,
entitled “Restricted Surface Use Cooperative Agreement for Exercise of Production
Rights for Oil and Gas,” which, in essence, constituted a five-year contract between
the Commission and those companies, under which the companies were authorized
to drill for oil and natural gas in State Game Lands Number 12 in exchange for
making lease and royalty payments to the Commonwealth. R.R. at 171a-225a.
On April 30, 2018, IDC and Atlantic Hydrocarbon filed a petition for
declaratory order (Declaratory Petition) with the Board, through which they asked
the Board to rule that IDC, rather than the Commonwealth, owns all of the coal,
minerals, natural gas, and oil that are present underneath the Property. R.R. at 2a-
23a; see also id. at 24a-225a (Declaratory Petition exhibits).9 The Board convened a
8
“On July 7, 2013, IDC leased its interest in the oil and gas underlying the . . . Property
and other lands to Chief Exploration & Development, LLC (“Chief”)[.] . . . Under the 2013 [l]ease,
Chief was to pay a majority of the royalty interest to IDC and a small portion of the royalty interest
to [Atlantic Hydrocarbon].” Final Adjudication, F.F. ¶¶37-38; see R.R. at 165a-69a, 295a (lease
agreement and relevant portion of hearing transcript).
9
In 1929, the General Assembly created the Board to hear disputes
over land held or claimed by the Commonwealth.[] Through Section
1207 of [T]he Administrative Code of 1929[, Act of April 9, 1929,
P.L. 177, as amended, 71 P.S. § 337], the General Assembly
conferred upon the Board broad authority over such disputes,
(Footnote continued on next page…)
8
hearing regarding the Declaratory Petition on June 16, 2020, and, after considering
the arguments and evidence presented by the parties, issued its Final Adjudication
on April 15, 2021. Therein, the Board interpreted the 1920 deed’s First Clause as
having incorporated by reference the language of the subsurface rights reservation
from the 1894 deed, thereby
giv[ing] the applicable provision of the recorded 1894
[d]eed the same force and effect as if it had been part of
the 1920 [d]eed.
....
By stating that the 1920 [d]eed is subject to mineral rights
and then incorporating by reference the exception of
mineral rights of the 1894 [d]eed that otherwise was no
longer in effect, CPLC made clear[] that it did not intend
to — and by this language did not — convey to the
Commonwealth the mineral rights as had been excepted in
the 1894 [d]eed. CPLC thus expressly reserved to itself all
the minerals etc. in the lands described along with
appropriate easements. No mineral rights were conveyed
to the Commonwealth by the 1920 [d]eed.
Final Adjudication, Discussion at 13-14 (footnote omitted). In addition, the Board
reasoned that the 1920 deed’s First Clause was not simply boilerplate language that
served as a general warranty disclaimer provision; according to the Board, “[b]y
incorporating by reference the mineral rights exception of the 1894 [d]eed [through
the First Clause,] but not doing so with respect to similar provisions of the 1903
[d]eed [through the Second Clause], CPLC demonstrated that these provisions were
to be treated differently.” Id., Discussion at 14. As a consequence, the 1920 deed
including “exclusive original jurisdiction over any claims involving
title to land occupied or claimed by the Commonwealth, such as
claims in actions to quiet title.” Krulac v. Pa. Game Comm’n, 702
A.2d 621, 623 (Pa. Cmwlth. 1997) (emphasis in original).
Beishline v. Dep’t of Env’t Prot., 234 A.3d 878, 880 (Pa. Cmwlth. 2020) (footnotes and quotation
marks omitted).
9
only conveyed the Property’s “surface rights” to the Commonwealth and served to
reserve the Property’s “mineral rights” for CPLC, which had not divested itself of
those rights until 1942, when it deeded them to the Keystone Tanning and Glue
Company. Id. Accordingly, the Board concluded “that IDC and not the
Commonwealth is the owner of the mineral rights of the . . . Property, in which
[Atlantic Hydrocarbon] holds a royalty interest.” Id., Conclusions of Law ¶2; see id.,Discussion at 14 (“[A]s the Commonwealth received no mineral rights through the
1920 Deed, IDC is the owner of all mineral rights in the . . . Property.”).
This appeal to our Court followed shortly thereafter.
II. Discussion
The Commission presents arguments for our consideration that all effectively
boil down to a single contention, i.e., the Board incorrectly read the 1920 deed’s
First Clause as reserving the Property’s mineral rights for CPLC, rather than as a
warranty disclaimer provision, and erroneously concluded on that basis that IDC,
rather than the Commonwealth, owns the natural resources underneath the Property.
Commission’s Br. at 7-24; Commission’s Reply Br. at 2-16. In general, our standard
of review regarding Board adjudications is limited to determining whether the Board
violated a petitioner’s constitutional rights or committed an error of law, as well as
whether the Board’s findings of fact are supported by substantial evidence.
Beishline, 234 A.3d at 884 n.8; 2 Pa. C.S. § 704. More particularly, interpretation of
a deed’s language, like that of any contract, is a question of law and, thus, our
standard of review regarding the Board’s reading of the 1920 deed is de novo and
our scope of review is plenary. McMullen v. Kutz, 985 A.2d 769, 773 (Pa. 2009);
Joiner v. Sw. Cent. Rural Elec. Co-op. Corp., 786 A.2d 349, 352 (Pa. Cmwlth. 2001).
In interpreting this [type of] instrument[,] certain rules of
construction are applicable: (1) the nature and quantity of
10
the interest conveyed must be ascertained from the
instrument itself and cannot be orally shown in the absence
of fraud, accident or mistake and we seek to ascertain not
what the parties may have intended by the language but
what is the meaning of the words . . . (2) effect must be
given to all the language of the instrument and no part
shall be rejected if it can be given a meaning . . . ; (3) if a
doubt arises concerning the interpretation of the
instrument[,] it will be resolved against the party who
prepared it . . . ; (4) unless contrary to the plain meaning
of the instrument, an interpretation given it by the parties
themselves will be favored . . . ; [and] (5) to ascertain the
intention of the parties, the language of a deed should be
interpreted in the light of the subject matter, the apparent
object or purpose of the parties and the conditions existing
when it was executed[.]
Brookbank v. Benedum-Trees Oil Co., 131 A.2d 103, 107 n.6 (Pa. 1957) (emphasis
in original, internal citations and some punctuation omitted).
Both the First Clause and Second Clause expressly state that CPLC’s
conveyance to the Commonwealth was made “subject to” certain conditions. See
Final Adjudication, F.F. ¶¶17-18; R.R. at 69a-70a. This phrase has a specific
meaning when used in property deeds, which the Superior Court aptly explained in
Burns v. Baumgardner:10
“[T]he fact that a conveyance is made ‘subject to’
restrictions set forth in some other deed or instrument
referred to will not, without more, make the restrictions
applicable to the property conveyed, if in fact the
restrictions do not otherwise apply thereto. If the ‘subject
to’ language of the instrument in question refers to
restrictions which in fact do not exist at all, it does not
operate to impose the supposed restrictions on the granted
land.” 20 Am. Jur. 2d Covenants, Conditions, and
Restrictions, § 169, at 728. See also[] De Sanno v. Earle, .
. . 117 A. 200 ([Pa.] 1922); Smith v. Second Church of
10
“In general, Superior Court decisions are not binding on this Court, but they offer
persuasive precedent where they address analogous issues.” Lerch v. Unemployment Comp. Bd. of
Rev., 180 A.3d 545, 551 (Pa. Cmwlth. 2018).
11
Christ, Scientist, . . . 351 P.2d 1104 ([Ariz.] 1960);
Procacci v. Zacco, . . . 324 So.2d 180 ([Fla. App.] 1975);
Wiley v. Schorr, . . . 594 S.W.2d 484 ([Tex. Civ. App.]
1979); Annotation, 84 A.L.R.2d 780 (1962).
449 A.2d 590, 593 (Pa. Super. 1982).
Although such reference [i.e., ‘subject to’] does not
impose new restrictions on the land, it nonetheless serves
a very necessary and desirable purpose for the grantor.
When property is conveyed by warranty deeds . . . it is in
the interest of the grantors that the conveyance be made
subject to every restriction or encumbrance which not only
does apply to such property but also may apply. The
inclusion of restrictions in the ‘subject to’ clause may thus
express a wise precaution on the part of the grantor (cf.
Donahoe v. Turner, . . . 90 N.E. 549 [(Mass. 1910)]). It
would indeed be foolhardy for a grantor who is delivering
a warranty deed to fail to refer to a restriction which may
at some time in the future be held to apply to his property,
merely to avoid the criticism of excess wordiness. Thus, it
is not unusual for conveyances to be made subject to all
recorded covenants, easements and restrictions, without
specific enumeration, and it would be inappropriate, to say
the least, to infer restrictions because it may subsequently
turn out that none then applied to the property.
Id. (quoting Smith, 351 P.2d at 1109). Therefore, in the absence of additional deed
language that contextualizes “subject to” as imposing some sort of restriction upon
the property rights acquired by the grantee, or reserving for the grantor some portion
of those rights, this phrase can show the grantor’s intent regarding the scope of the
warranty they have given to the grantee, but “[cannot] create new restrictions or
expand existing restrictions.” Id.Reading these clauses together, we conclude that the First Clause reserved for
CPLC ownership over the Property’s coal, minerals, natural gas, and oil. To
reiterate, the First Clause states that
[CPLC’s] conveyance [to the Commonwealth] is made
subject to all the minerals, coal, oil, gas or petroleum
12
found now or hereafter on, or under the surface on any or
all of the lands described in each of the above mentioned
parts or divisions; together with the right and privilege of
ingress, egress and regress upon said lands for the purpose
of prospecting for, or developing, working or removing
the same, as fully as said minerals and mineral rights were
excepted and reserved in deed dated October 27, 1894,
from . . . Proctor [and Hill] to . . . Union . . . , recorded in
the Office for recording deeds in Bradford County in deed
book Vol. 205, page 436.
Final Adjudication, F.F. ¶17; R.R. at 69a-70a. The phrase “as fully as” is key, in that
it transforms the entire clause from one which would operate as a warranty to one
which limited the scope of the property transfer memorialized by the 1920 deed.
Properly contextualized, the language of the First Clause shows an intent to reserve
CPLC’s ownership of “all the minerals, coal, oil, gas or petroleum found now or
hereafter on, or under the surface [of the Property,]” and establishes that this
reservation was equally as broad as Proctor and Hill’s reservation via the 1894 deed
of the Property’s “minerals and mineral rights.” See R.R. at 42a, 69a-70a. In other
words, just as Proctor and Hill had reserved for themselves “all” of the Property’s
mineral rights, so too did CPLC reserve for itself ownership over all of the Property’s
coal, minerals, natural gas, and oil.11
11
We note that there is a longstanding canon of deed interpretation in Pennsylvania known
as the Dunham Rule, which was created by our Supreme Court in Dunham v. Kirkpatrick, 12
W.N.C. 217 (Pa. 1882). This rule establishes that “absent the terms ‘oil’ or ‘natural gas’ being
included within a reservation for mineral rights within a private deed, oil or natural gas simply are
not encompassed within the reservation without clear and convincing parol evidence produced by
the proponent of the reservation to the contrary.” Butler v. Charles Powers Est. ex rel. Warren, 65
A.3d 885, 896 (Pa. 2013). The Commission appears to have made a brief, oblique gesture towards
this Rule, but failed to develop an argument on that basis in any substantive way. See
Commission’s Br. at 11. Accordingly, to the extent that the Commission could have argued that
the First Clause’s reference to “minerals and mineral rights” did not establish an intent to reserve
CPLC’s ownership over the Property’s coal, minerals, natural gas, and oil, it has waived its ability
to do so. See Wirth v. Com., 95 A.3d 822, 837 (Pa. 2014) (quoting Com. v. Johnson, 985 A.2d 915,
(Footnote continued on next page…)
13
The language used in the Second Clause reinforces our conclusion that the
First Clause excepted these interests from the 1920 deed and did not operate as a
warranty provision. As already mentioned, the Second Clause states that the
conveyance from CPLC to the Commonwealth was “[a]lso subject to all the
reservations, exceptions, covenants and stipulations contained in said recited [1894]
deed from . . . Proctor [and Hill] to . . . Union . . . and in deed from . . . Union . . . to
[CPLC], above recited, dated May 25, 1903, of record as aforesaid in deed book Vol.
251, page 520.” Final Adjudication, F.F. ¶18; R.R. at 70a. The Second Clause
consequently warranted the 1920 deed against conditions imposed by the 1894 deed
and/or the 1903 deed, due to the Second Clause’s use of “subject to” in conjunction
with the absence of verbiage that restricted the Commonwealth’s ownership rights.
In light of this, the First Clause cannot also act as a warranty provision, for
interpreting it as such would render either it or the Second Clause redundant and turn
the First Clause’s more specific language (as compared to the Second Clause) into
spare, inoperative verbiage. Doing so would thus contravene the requirement that
“effect must be given to all the language of [a deed] instrument and no part shall be
rejected if it can be given a meaning[.]” Brookbank, 131 A.2d at 107 n.6 (emphasis
in original).
III. Conclusion
In light of the foregoing, we conclude that CPLC did not transfer ownership
of the Property’s coal, minerals, natural gas, and oil to the Commonwealth via the
924 (Pa. 2009)) (“[W]here an appellate brief fails to provide any discussion of a claim with citation
to relevant authority or fails to develop the issue in any other meaningful fashion capable of review,
that claim is waived. It is not the obligation of [an appellate court] to formulate [an a]ppellant’s
arguments for [him].”); Rapid Pallet v. Unemployment Comp. Bd. of Rev., 707 A.2d 636, 638 (Pa.
Cmwlth. 1998) (“Arguments not properly developed in a brief will be deemed waived by this
Court.”); Pa. R.A.P. 2119(a).
14
1920 deed and, consequently, that IDC is the current owner of those natural
resources, to the extent any are present below the Property’s surface.12 Accordingly,
we affirm the Board’s Final Adjudication.
__________________________________
ELLEN CEISLER, Judge
12
Given the language used in the First Clause, IDC could conceivably assert an ownership
claim to all of the Property’s coal, minerals, natural gas, or oil, regardless of whether those
resources are on the surface or beneath the ground. See R.R. at 70a (“[CPLC’s] conveyance [to the
Commonwealth] is made subject to all the minerals, coal, oil, gas or petroleum found now or
hereafter on, or under the surface on any or all of the lands described in each of the above
mentioned parts or divisions [of the 1920 deed.]”). However, our holding here is limited in scope
to the relief IDC requested from the Board. As IDC only asked the Board to determine that IDC
owns the Property’s subterranean deposits of coal, minerals, natural gas, and oil, neither this
opinion nor the Final Adjudication can or should be understood as addressing or resolving any
claim to the Property’s surface rights.
15
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Commonwealth of Pennsylvania, :
Pennsylvania Game Commission, :
Petitioner :
:
v. : No. 497 C.D. 2021
:
International Development :
Corporation and Atlantic :
Hydrocarbon (Board of :
Property), :
Respondents :
ORDER
AND NOW, this 4th day of March, 2022, it is hereby ORDERED that the
Board of Property’s final adjudication and order, dated April 15, 2021, is
AFFIRMED.
__________________________________
ELLEN CEISLER, Judge