cash. Their business was carried on under the firm name of C. G. Thyng & Company, and the deed for the 110 acres was made to "Culver G. Thyng and Thomas Loan, doing business under the firm name and style of C. G. Thyng & Company." The parties under the firm name, on June 19, 1889, five days after acquiring title, in consideration of $4,000 paid, made the following grant to Lewis Lemley and David Lemley:

"All that surface of a certain tract or parcel of land containing 110 acres lying on the headwaters of Dolls Run, Monongalia county, West Virginia, known as the tract

of land that F. M. Meredith, guardian, etc., and Mary F. Morris, conveyed to the said grantors on the 14th day of June, 1889, subject to ingress and egress and water privilege for drilling gas and oil wells on the same and the right to lay pipes to convey oil and gas there from or over the same, and to work upon said lands in drilling said wells, or removing any or all machinery therefrom, and said tract of land is bounded as follows, to wit: (Here follows a description of the property by metes and bounds.)

"And it is further understood and agreed that said grantees take the surface of said tract of land subject to the lease thereon to David Morris to the 1st day of March, 1890, for $200, and said rent from the 14th day of June, 1889, is payable to said grantees, but from the 1st day of March, 1889, to said 14th day of June, 1889, is payable to F. M. Meredith, guardian, etc., and that the said grantors, in retaining the oil and gas under said tract, shall have the right to go on said land, erect and place the proper machinery thereon for drilling for oil and gas, and have sufficient water supply for running said machinery, and the right to lay pipes for removing gas or oil therefrom or over said lands, doing no more damage to the surface of said farm than is necessary to develop and remove

said oil or gas from under said farm or tract of land."

The controversy in this case revolves around the effect of this deed, which for brevity we will hereafter call the "Lemley deed." Plaintiff claims the coal under the deed, she having obtained a conveyance therefor from the grantees; the defendant claims against the deed, and asserts title to the coal through subsequent deeds made by the firm, or the members thereof, their heirs or assigns.

Plaintiff introduces certain parol evidence in order to aid the court in interpreting the Lemley deed, to which we will later refer. She also exhibits certain deeds made subse

quently by the grantors, which she

claims show an interpretation placed on the Lemley deed by C. G. Thyng, and Thomas Loan and South Penn Oil Company, at variance with the present claims of defendant. These deeds and other deeds under which the defendant claims title to the coal, oil, and gas, in brief, are the following:

1. By deed dated June 20, 1889, C. G. Thyng & Company, for $1,762.50 paid, granted to South Penn Oil Company the three eighths of "the petroleum oil and gas in and under" the 110-acre tract, "with the right of ingress and egress, and water privileges for drilling gas or oil wells on the same, and the right to lay pipe lines to convey oil and gas therefrom or over the same, and to work upon said land in drilling said wells or removing any or all machinery therefrom, doing no more damage to the surface of said farm than is necessary to develop and remove said oil or gas from under said farm or tract of land."

2. By deed dated April 16, 1891, Culver G. Thyng conveyed by mortgage to D. C. Conklin all his interest in the following described leaseholds, created by the following oil and gas leases:

(a) A lease made by Francis B. Michael and wife, dated May 16, 1889, covering 80 acres, more or less.

(b) A lease made by Tossy

Michael and others, dated May 20, 1889, covering 53 acres, more or less.

(c) A lease made by David E. Lemley and Lewis Lemley, dated June 19, 1889, covering 174 acres, excepting 20 acres therefrom by actual measurement, on the northeast corner of the tract.

(d) "Also all his right, title, and interest of, in, and to the following described lands and premises, to wit:" (Here follows a description of the 110 acres by metes and bounds.)

This mortgage was executed to secure Conklin in the payment of $15,000, and passed by assignments to defendant, April 21, 1894.

3. By deed dated August 18, 1891, Thomas Loan and wife conveyed to Culver G. Thyng, in consideration of $2,000 and other considerations paid, the following described real estate and personal property in Monongalia county:

(a) All their interest, being the one-fourth undivided interest in the Morris 110 acres.

(b) The personal property consisting of "drilling tools, one cable, one sound line, hammers, boiler, bellows, etc."

(c) All their interest, being the one-fourth working interest, in the Benjamin Core leasehold estate, containing 150 acres.

(4) By deed dated September 11, 1893, and recorded in Deed Book 37, p. 49, Culver G. Thyng assigned and conveyed to Jason D. Case:

(a) All his interest in all that certain tract of land sold to C. G. Thyng & Company by F. M. Meredith, guardian, etc., being the 110acre tract, including the interest therein conveyed by Thomas Loan, and all personal property in Monongalia county, consisting of drilling tools, boilers, engines, etc.

(b) All his right, being the working interest, in the Benjamin Core leasehold estate.

(c) Also all that certain parcel of land containing 154 acres, described as the Lemley land.

(d) Another tract described by

(e) "And all the land in the county of Monongalia in which the party of the first part has any interest. The interest hereby intend ed to be conveyed is the oil and gas rights in said land and all the title that the party of the first -- has therein. Together with all the appurtenances, right, title, and interest owned by the party of the first part therein."

5. By deed dated August 21, 1894, Jason D. Case, trustee, Jason D. Case, and Helen C. Case, his wife, Culver G. Thyng and Mildred K. Thyng, his wife, in consideration of $3,000 paid, sold, transferred, assigned, and set over unto the South Penn Oil Company, with covenants of special warranty, the following described real estate in Monongalia county, West Virginia, containing 110 acres, more or less, and described by metes and bounds. and being the tract in controversy. Immediately following the description is the following paragraph: "The right and interest hereby conveyed to the above-described lands is all the right, title, and interest of said parties of the first part, of, in, and to the said premises, which is the right and title to all the minerals, oil and gas in, upon, or under said lands, the title to which lands is held by Lewis Lemley and David E. Lemley."

By the same deed there is granted all the grantor's interest in the oil and gas under the Lemley 154acre leasehold estate.

6. On August 11, 1914, the Citizens' Bank of Arcade, New York, the bank of East Aurora, New York, the Union National Bank of Franklinville, New York, the latter being the successor of the First National Bank of Franklinville, and Jason D. Case and Helen C. Case, his wife, executed a deed to South Penn Oil Company, wherein it is recited that by deed dated September 11, 1893, recorded in Monongalia county, West Virginia, in D. B. 37. p. 49, Culver G. Thyng conveyed to

Jason D. Case certain lands to secure the banks above named, in certain loans made to Culver G. Thyng, and that said loans have been paid, and said claims should be released, and that Culver G. Thyng sold and by deed made by Jason D. Case individually and as trustee, and Culver G. Thyng, their wives joining therein, dated August 21, 1894, "there was conveyed unto said South Penn Oil Company certain minerals, oil, and gas, which deed was recorded in said Monongalia county, West Virginia, on the 18th day of September, 1894, in Deed Book No. 40, p. 83, being all or part of the real estate mentioned and described in the deed first herein set forth." Then, after stating a consideration of $1 and other valuable considerations, there follows: "Said grantors, parties of the first part, do hereby release unto said grantee, party of the second part, all of their claim, either joint or several, upon the minerals, oil and gas, described in said last-mentioned deed, dated the 21st day of August, 1894," and recorded September 18, 1894, in Deed Book 40, p. 83.

.

7. By deed dated June 30, 1920, after this suit was begun, the heirs and devisees and administrator with the will annexed of Culver G. Thyng, deceased, granted to South Penn Oil Company "all their right, title, and interest in and to all minerals, including all the veins and seams of coal, in, upon, and underlying" the 110 acres in controversy.

It is contended by plaintiff that Culver G. Thyng, who ultimately became the owner of all the firm's interest in the 110 acres, which remained after the making of the Lemley deed, and his grantee, the South Penn Oil Company, by the various deeds above mentioned, distinctly recognized that this remaining interest was only the "oil and gas," with the operating rights; that they so interpreted the Lemley deed; and that this construction is binding on defendant.

On the other hand, the record

distinctly shows that the Lemleys construed their deed as granting to them the coal. On December 4, 1901, Lewis Lemley, in consideration of other coal, granted to David E. Lemley his interest in the coal and mining rights under the 110 acres. On October 2, 1911, David E. Lemley conveyed the coal to George W. Core, in order to enable Core to make sale thereof. By subsequent deeds, the Lemley title passed to the plaintiff. The coal was assessed with the surface to the Lemleys, and the defendant South Penn Oil Company did not, nor did Culver G. Thyng, have the coal entered on the land books for assessment of taxes until 1914, twentyfive years after the Lemley deed was made. At the time the deed was made there was no coal development in the neighborhood of this land; in fact, the nearest development was in the Fairmont region, more than 15 miles away, and there only in a small way. No one was selling coal lands as coal lands in the neighborhood. The only activity was in oil and gas lands. The commercial veins of coal, the Pittsburgh and Sewickley, are deep and can only be reached by shafting, and doubtless the coal was not thought of by any of the parties when the deed was executed. In drilling oil wells in that vicinity in the early the early nineties they drilled through the Pittsburgh coal. Thyng and Loan must then have learned of the coal. The Lemleys were farmers residing in the neighborhood, owning a large acreage of farm lands, from which the coal had not been sold. These matters are material, and it is important to keep in mind the situation and business of the parties at that time, unless the question of the construction of the Lemley deed is foreclosed by the decision of this court in the case of Williams v. South Penn Oil Co. 52 W. Va. 181, 60 L.R.A. 795, 43 S. E. 214; or Dolan v. Dolan, 70 W. Va. 76, 73 S. E. 90, Ann. Cas. 1913D, 125.

It is contended by defendant's

counsel that the principles laid down in the Williams Case were reaffirmed in the Dolan Case; but plaintiff's counsel insist that the Williams Case is overruled by the Dolan Case, and that if it was not overruled, the reference to it is obiter dictum and wholly unnecessary to the decision reached therein; that the Williams Case does not correctly state the law, and if not overruled, it ought to be.

In view of the importance of the question involved, we think it proper to re-examine the principles announced in these two cases. For the sake of argument it may be conceded that the deed in the Williams Case is substantially like the Lemley deed, except the Williams deed granted the "surface," reserving the coal and mining rights therefor, without mentioning the oil and gas. The Lemley deed grants the "surface," but impliedly, at least, reserves the oil and gas without mentioning the coal. It was held in the Williams Case that the oil and gas did not pass by the deed. Defendant would in like manner have us hold that under the Lemley deed the coal did not pass. It all depends upon the meaning of the word "surface" when used in a deed of this character. In the Williams Case it was held: "The word 'surface' when specifically used as a subject of conveyance has a definite and certain meaning, and means only that portion of the land which is or may be used for agricultural purposes."

For this definition the court seems to rely upon Murray v. Allred, 100 Tenn. 100, 39 L.R.A. 249, 66 Am. St. Rep. 740, 43 S. W. 355, 19 Mor. Min. Rep. 169, and three English cases, Midland R. Co. v. Checkley, L. R. 4 Eq. 19, 16 L. T. N. S. 260, 36 L. J. Ch. N. S. 380, 15 Week. Rep. 671, Hext v. Gill, L. R. 7 Ch. 699, 41 L. J. Ch. N. S. 761, 27 L. T. N. S. 291, 20 Week. Rep. 957, 17 Eng. Rul. Cas. 429, 17 Mor. Min. Rep. 1, and Atty. Gen. v. Tomline, L. R. 5 Ch. Div. 762, 46 L. J. Ch. 654, 36 L. T. N. S. 684, 25 Week.

Rep. 802. A careful examination of the Tennessee case discloses that the term "surface" was not involved at all. By the deed in that case there was conveyed "a certain tract of land," by proper description; the grantor reserving to himself, his heirs, and assigns, “all mines, minerals, and metals in and under said land." There were no minerals or metals under the land, except oil and gas, and the sole question was whether oil and gas were within the terms of the reservation; the court holding that they were. In the course of the opinion, the court discusses the severance of land horizontally into strata or layers, and incidentally mentions the term "surface," and cites the three English cases as authority for the definition adopted in the Williams Case. So much for the Tennessee case.

The first English case, that of Midland R. Co. v. Checkley, supra, arose under the Canal Act (34 Geo. III. chap. 93), and involved the right of an owner to quarry stone on his land through which the canal extended. The act providing for the compulsory sale of the canal right, which under our law would be termed "condemnation," also provided that nothing in it should extend to or affect the right of any owner of land, in, upon, or through which the canal should be made, to the mines and minerals lying and being within or under the land; but all such mines and minerals were thereby reserved to such owner, his heirs, etc., and that it should be lawful for the owner, subject to certain restrictions, to work such mines and minerals. The canal right was purchased under the statute, and the title to the land passed to the railway company. The owner of the tract through which the canal was constructed desired to work his quarry closer to the canal than the plaintiff thought safe, and plaintiff sued out an injunction, which the court stated it would perpetuate upon the railway's making compensation to the owner of the stone,