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Becord No. 2248. - In the - Supreme Court of Appeals of Virginia At Richmond

BUCHANAN ('OAL UOMPANY. INC, et ah;. AJ>pellants vs. \Y. A. WI'R.fGET. Pt al~ . .A.ppellees -----...... -· -· -· -· ... ----- From the Circuit Court of Buchanan County, Va.

RUl.J.1£ 14

~5. );' UMBEH (){,' ('oPIES ro Bb Frt.J,;u AN I) DELIVERED TO 0PP0S­ lNG CouNsEL. Twenty copies of each brief shall be filed with the clerk of the court, and at least two copies mailed or de­ livered to opposing <'Ounsel 011 or before the day 011 which the brjef is filed. %. SrZE A~D T, P~:. Briefs shal I be printed in type not less in size than small piea. and shall he nine inches in l ngth and six inehei:. in width, so as to collform in dimensions to the printed recordi-. 'Phe record. number of the case shall be printed 011 all hri@f's.

The foregoing is priutecl in small pica type for the informa­ tion of rouni::el. \f. B. W.\.'l'TS. ('!erk.

Jolin .4.. Coolt. Print.er. W)'thevUle. V&.

/ '7·5 Vtr 5 j / NOTICE TO COUNSEL This case probably will be called at the session of court to be held You will be advised later more definitely as to the date. M. B. WATTS, Clerk. - SUBJECT INDEX -

Side Page Preliminary Statement ...... 2:i,. Facts ...... old' Assignment of Error ...... 12* Speci'fications of Error, 1 to 6, inclusive ...... 13* The Law and Argument covering: (a) Specifications of error 1 & 2 ...... 14* (b) Specifications of error 3 ...... 20* Peculiar Equities apply to disputes over boundary lines as well as to land title ...... 21 :t:' Four separate grounds of equity jurisdiction ...... 21 * . Section 5490 of Code provides for a summary remedy at law only ...... 25• Mistakes alone afford ground for equity jurisdiction . . 26* Specifications of error 4 & 6 ...... 30'1t Destruction or Impairment of easement rights to mine coal also is sufficient to give Court of equity jurisdiction 30"' Conclusion ...... 31 :11: Certificate of Counsel ...... 34,. - TABLE OF CITATIONS -- .•. - Side Page Anderson v. Woodford, et al 35 Va. 328 ...... 15* Code, Section 5490 ...... 25* Duty v. Honaker Lumber Company, 131 Va. 35 ...... 21 • Filler v. Tyler, 91 Va. 645 ...... 26i' Fore v. Foster, 86 Va. 104 ...... 15~ French v. Strange Mining Company, 133 Va. 6.27 ...... 29• Hagan Company, Inc., v. Norton Coal Co., 137 Va. 163.. 29* Hodges v. Thornton, 138 Va. 112 ...... 23~ Jefferson v. Gregory, 113 Va. 61 ...... 15 .. Litz, et al, v. Rowe, 117 Va. 752 ...... _ .. · 20• Nichols -v. Nichols, 169 Va. 404; 193 S. E. 691 ...... 26* Penn v. Tucker, 114 Va. 672 ...... 29• Phillips v. Wells, 147 Va. 1045 ...... 29* · ·Pomeroy's Equity Jurisprudence (3rd Ed.), Vol. 4, Sec. 1384 ...... t • • • • • • • • • • • • • • • • • • • • • • • • 25:1 Price v. McLemore, 108 Va. 280 ...... 15* Wright v. Rabey, 117 Va. 884,890 ...... 22* IN TH.E juprtmt ~aurt of jpptals of ~irgiuia At Rich1nond

Record No. 2248

Buchanan 9oal Company, a corporation, vV. M. Ritter Lum­ ber Company, a corporation, Yukon Pocahontas Coal Com­ pany, a corporation, Saye:rs Pocahontas Coal Oo;mp.any, In­ corporated, a corporation, and Red ,Jacket Coal Corporation, a corporation, Appellants vs. W. A. Street., Ji,rankie M.ae Street. Ji"'. M. Ratliff, Missouri Compton, Clarence E. Dye, ·w arfield Strickler, Letitia Strick­ ler, C. H. Litton, ,J. R. Gildersleeve, H. D. vVright, Minnie Wright, H. Claude Pobst, Trustee in deed of trust from H. D. Wright and wife to secure ,J. R. Gilders,eeve, S. J. Mul­ lins Martha Mullins, H. Claude Pobst.. Trustee in deed oi trust from S. J~ Mu!lins and wife to secure Mingo Lime and Lumber Company, A. G. Law, B. C. Bucklin, Maymie Buck­ lin, J. D. Dalton, Hattie L. Diilton, .T. G. Grace, Levi Mullins; Samantha ,J. Christi~n, l\'[rs. A. M. Christian, .Judge W. Mul­ lins, A.. :M. Christian Auty Coleman, R.uth Co'eman, Brure -Abbott, :M°!lPde Abbott. Cnrfo: Baldw'in, Gracp l\f ullim, P. F. ~erndon, Evalyn Herndon, Bert Keen, Garnett Keen, l~,. C. Mathews, A. K. Parish. Ivory Killem. ,Joshua Gra.ee. Bessie Grace, Ollie Roberts, Dave Strunk, .James Roberts, F. H. Combs, Trustee in deed of trust from Ollie anrl .J ameR Rob­ erts '~o secure PerR~ng-cr Supply Comp.any, C1eve Willis, Rose Coleman, George Weddie, Lessie Kinser, M. l. Potter, T. W~ · 2 Supreme Court of Appeals of Virginia

Ratliff, Ella Ratliff, Edgar M. Call Henry Call, Caroline Cole Gregory, J.B. Ramey, Lena Dye, ·and H. Claude Pobst, Trustee, et al. Appellees

PETITION

To the Honorable Justices of the S·upre-me Uo·urt of Appeal.s of Virginia:

Your petitioners, complainants in the above-styled suit, would most respectfully show unto your Honors that they are aggrieved by a certain decree entered in said cause, July, 26, 1939, (R. 104), and also a certain final decree entered in said cause on the same day by the Circuit Court of Buchanan County, Virginia, (R. 105), which said decrees, as your pe­ titioners are advised, are erroneous and prejudicial, and should be reversed and annulled for reasons hereinafter spe­ cifically assigned. A transcript of the record, including the said final decrees, and the opinion of the Court (R. 134, a, b, c), which is by express provision of the said final decree made a part thereof, accompanies this petition, and is herewith ex­ hibited, and from which it appears that the Supreme Court of Appeal~ has jurisdiction.

PRNLIMINARY srrATEMENT

Petitioners instituted their said suit in equity, in the Cir­ cuit Court as aforesaid, and filed their bill of complaint hav­ ing for its primary obdect the correction of certain gross, palpabLe and prejudicial mistakes, as specifically charg·- 3* eel in *their bill, and seeking such reformation as is necessary to correct said mistakes, and the iticidental relief of having the resulting clouds removed; and, alrn, the abatement of certain a1leg-ed nuisances, as well as for injunc-, tive and general relief. The chiuges in the bill of complaint, as wi 1 hereinafter more fully appear, make a case which falls, as your petitioners are advised, within the exclusive jurisdic­ tion of a court of equity. A demurrer was filed to the said bill, on the ground, inter alia, that a court of equity had no jurisdiction to hear and determine the issues involved, (R. Buchanan Coal Co. vs. vV. A. Street ·3

100-101). The court sustained the said demw-rer and held that petitioners could not maintain a suit for the purpose of having· the mistakes _made in the partition suit for partition of the James M. Ratliff land corrected, although said mistakes . overlapped and affected petitioners' adjoining land; and, af­ ter adjudicating on demurrer, as aforesaid, that it could not consider any of the a!leged mistakes, an answer was filed, and after a general replica~ion thereto was filed the court, ignor­ ing the peculiar equities charged in the bill aforesaid, and merely upon an inspection and consideration of a part of said bill and answer, (the mistakes not being considered at all), reached the conclusion that your petitioners had proceeded in the wrong forum, that a court of equity had no juris- 4 * diction - and, *thereupon, then and there, effectively closed the door of equity and definitely and finally, de­ nied to your petitioners any relief, geheral or special, as pray­ ed for in the bill, saying, among other things : '' The court having reached the conclusion (that) a court of equity has no jurisdiction, w'ill exercise its prerogative and transfer this case to the law side of the docket.''

And, as the court i;;tated in its written opinion aforesaid (sic) the only reason petitioners' cause was not dismissed at its cost was due to the liberality of the new statute author­ izing such transfers when one proceeds in the wrong forum. The cause was, thereupon, transferred from equity to the law side of the docket, with leave to complainants, to amend "their pleading·s" at la ,v and in that forum.

There~, it may be ~tated as a fact in the irn;taut ease -and in the language of the law, (Hodges v. Thornton, 138 Va.1i2): "That (this) was a t~·ee in that it denied the whole of the relief prayed for in tlw bill and in ef­ fect dismi~scd the bill and remanded the plaintiffs to another forum, namely. t.he hnY side of this court."

5* li1ACTS

Since petitioners' bill was dismissed from equity solely on account of jurisdictional reasons, as aforesaid, and since 4 Supreme Court of Appeals of Virginia

the question here involved only relates to the legality of such a ruling, it is ~ought that a detailed statement of the facts would hardly be neceesary or desirable. However, without waiving any of the facts alleged in the bill of complaint, but · relying on same, a brief summation of the pertinent facts es­ tablishing grounds for equity jurisdiction follows : James M. Ratliff owned the surface of a certain tract of land containing about 702 acres, more or less, and John S. Ratliff owned an adjoining tract of land. John S. Ratliff died, and his land passed to his heirs. In th~ partition of the John S. Ratliff land there was assigned to his son, Henry R. Ratliff, a certain tract or parcel of land which is supposed to be the same tract or parcel of land covered by petitioners '' Fee tract No. 27. ". However that may be, the facts are that Henry R. Ratliff conveyed to. petitioners predecessors in title, Sep. 23, 1904 (R.. 32) the mineral on said tract of land, together with certain mining rights, privileges and easements on~AM~~e tract No. 27.", and subsequenfy on the 27th day of ~r 1906, petitioners' predecessor in title, purchased from 6• the said *Henry R. Ratliff the entire surface of said tract (R. 45), thus vesting in petitioners' predecessor in title the entire fee simple title to said tract of land as em­ braced in their said deeds from Henry R. Ratliff. And it is admitted, as shown by the stipulation of counsel (R. 25-26), that petitioners are now the fee simple owners of said "Fee tract No. 27." James M. Ratliff lived many years after the death and partition, as aforesaid, of the John S. Ratliff land, and recog­ nized tlrn boundary line between said tracts of land. James l\L Ra.tiff, in his lifetime, to-wit, Septe:nber 23, 1904, sold and conveyed ( R. 39), to petitioners' predecessor in title, all of the coal, oil, and mineral underlying his ad­ joining tract of land, which wi1s supposed to contain about 702 acres, and which is thtS same tract of la.nd mentioned in the bill a~ "Minernl Tract. io:)." tl mAferrAL . 1·1 P c t1·t· 10ners, . 1erc· t· 01·e, "own a :mmm~ m t erest, as 1s . 1 rn- wise admitted, in the so-cal ed "Mineral Tract No. 10)". Soon aftor the death rf the s.a.id ,J amcs 1\L Ratliff, namely, in October, 1935, (R. 13, paragraph 11 of the bill), a suit was i:ristituted in the Circuit Court of Buchanan County, Virginia, having for its object the partition of the said surface of the Buchanan Coal Co. vs.\¥. A. Street 5

said James M. Ratliff 702 acres, embracing· the sur- T· face over the *said "Mineral Tract No. 100", and ad- joining petitioners' '' Fee Tract No. 27 '', and said sur­ face of said mineral tract waEt I.aid off, and _assigned to one o-f the heirs of James M. Ratliff, deceased, and acquired by the defendants, W. A. Street, Frankie Street, and F. M. Ratliff Your petitioners were not parties to said partition suit and had no notice of the fact that such a suit was· pending. However, when some question developed later about the lo­ cation of the division line as aforesaid, not knowing how such a question could have arisen, since there had: been no question theretofore between them and James :M. Ratliff as to the true .location of the said boundary line, they made an examination of the records and located· said attempted partition suit and found, upon an examination of same, that all kinds of gross mistakes, apparent on the face of the original papers, had been ·made. These mistakes and errors caused the description of the partitioned Lands to interlock with petitioners' lines and to lap over and include a part of the petitioners' '' Fee Tract No. 27", as well as other lands; and that these mistakes and en-ors were so gross as to amount to fraud. These mistakes are, in part, as fo)l ows : 8* *In the sui1t of Edgar M. Call v. Caroline Cole, Fulfou Ratliff and T. W. Ratliff, Commissioners were appoint­ ed to partition sa:id surface among the heirs of the said James M. Ratliff, deceased, and the said Commissioners made their report of partition of said land, which was duly filed with the papers in said cause, and marked filed as of the 7th day of April, 1936, and after various proceedings and exceptions, not material or necessary to be mentioned herein, the Circuit Court on the 13th day of May, 1936. entered a decree purport­ ing to confirm said report as made; that the said decree pur­ ported to embody an exact copy of the said report of said commissioners, and said decree was ordered to be recorded, and was duly recorded in the Clerk's Office of Buchanan County, Virginia, in Deed Book No. 72. page 4:36, and also in Chancery Book No. 9, page 188, thereof; that said commiH­ sioners' report wa.s·, however, ineorrectly copied into the de­ cree; that there were various mistakes made therein, and among other mistakes im

The le:uned Cil'(·uit Court held 011 demuner that tbeHr mistakes could not be corrected by an original hill in equit~·, a.s aforei:mid and the smne day as aforesaid, dk.missed 1w­ titioners' snid bil1 on tl~e sole ground that a con rt of equitv had ·no ,jurisdiction to hear and pass upon the is~rnes imrnlved. Defendants filed an answer, after the demurrer afore­ said was sustained, inter alia, denying· each an

ASSIGNMEN.T OF ERROR

. Since the questions at- issue, as indicated above, are ques­ tions involving "pecu1iar" eq:u.ities. a general assignment of error to the: eff.ect that the Honorable Circuit Court erred in ~etermining and decreeing that a court of equity had no juris-. diction, and in remanding the oo.use· to the law side of 13"' the docket *would seem to be sufficient. However, this g·eneral statement may be brolren down and clari-· fied by separate specifications of error.

SPECIFICATIONS OF ERROR 1.

The Cireuit Court ene

The Circuit Court erred in determining and hold­ ing in its decrees and opinion aforesaid, that petition­ ers had no leg1:1.l rig:ht to file a bill in eq-µity to have a court of e_quity take juriRdiction and correct certain other alleged mistakes and fraud directly affecting their rights· and propertJ, ns charged in the bill; 3.

The Circuit Court erred in determining and hold­ ing that the issues involved in the suit were confined Buchanan Coal Co. vs. vV. A. Street 9

to the independent claims of legal title to the same land, arising out of the dispute as to the correct lo· cation of boundary lines, and that a court of equity, not· withstanding the various peculiar equities aforesaid, and hereinafter mentioned, had no jurisdiction;

14* 4.

The Circuit Court erred in ignoring, inter alia. as a ground for equity jurisdiction the avoidance of u mulitiplicity of suits;

5.

The Court erred in ignoring, as a ground for equity jurisdiction, the necessary abatement of nuisances spe­ cifically charged in the bill ; and

6.

The Court erred in ignoring, as a ground for equit­ able relief, the injunctive relief sought and pua~ed for in the bill.

TITg LAvV AND ARGUJIENT

POINTS 1 & 2.

The specifications of error, 1 and 2, are so nearly alike th~t they may be grouped, or reduced to 011.e, and treated to­ gether. For authority that a court of equity does have juris­ diction to reform and correct mistakes of fact in decrees, in partition suits, and other court proceedings, and that such re· lief will be granted in Virginia by a separate hill filed for the purpose, as in the instant c.ase, see. 15* Hodg(~S v. Thornton, rnR Va. 112; Jefferson v. Gregory, 113, Va. 61; Fore v. Foster, 86 Va. 104; Anderson v. Woodford, et al, 35 Va. 328. 10 Supreme Court of Appeals of Virginia

The Circuit Court, in its opinion, said, CR. 135): "Insofar as the bill seeks to reform the Ratliff partition suit, the court is of opinion that the demu~·­ rer should be sustained. The Court is clearly of opin­ ion that the defendan:ts (meaning complainants and petitioners) could not have gotten into that partition suit when it was pending on the docket. If ;they could not have gotten in then, certainly they could not get in now to reform a suit they never had any business in.''

The learned court evidently had in mind mistakes of law and not mistakes of facts, or fraud. These peculiar equitable grounds, namely, mistakes of fact and frmtd, being peculiar equities. will always he considered-and it pleases a court of equity to consider them~ven if it is necessary to assail its own proceedings, set aside judgments, reform or annul de­ crees. It is quite true that one can not file a bill iu equity to correct a mere mistake of law in a suit in which he was not a party, and in which he had no interest. But, it is submitted, that one ha.s the unquestionable and unqualified right to comH into a court of equity to seek relief from a mist9ke of fact or fraudulent act, or series of acts, directly affecting 16* ones rights, *whatever those rights may be. As Jus- tice Keith (Pd.ce v. McLemore, 108 Va. 280) said, re­ f erring to a mistake made without the know1 edge of the party affected, "though without fraud", and the right of a court of equity to take jurisdiction to correct it, and restore the parties to their former position '' whatever ,their· rights may be": '' And, ns we have already said, the m1sta.ke provPr~ in this case ought to entitle the parties to itbe same re~ lief as though a fraud had been perpetrated upon them, for to refuse relief under the circumstances WO'U,ld be eq11.iva.!enf to sanction-i-n,q fraud.''

Can it be successfully asse1·ted and maintained that an adjoining land owner may die and that his heirs may parti­ tion his est.a.te, describin~ it in tl1e bill, as in this partition suit, by reference to adjoinders, and have the exterior boundary lines thereof surveyed and run, by fraud or mistake, so a§ to take in the said adjoining lands of such innocent adjoinders, · who have no notice or knowledge of such a proceeding, a.nd Buchanan Coal Co. vs. W . .A.. Street 11

that they, the innocent adjoinders, have no right to come iu­ to a court of equity and have those fraudulent acts and mis­ takes reformed and corrected f It is not necessary to argue such a proposition. If it were necessary to argue it we would simply refer to the fact that this Honorable Court has 17* spoken on that subject quite definitely. The case of Jefferson v. Gregory, 113 Va. 61, was one in which a bill was filed to correct a mistake of fact in a deed and plat as to the dimensions of a small tract of land sold under a de­ ·cree of the court, and '' to restrain the appell~es from inter­ fering with the appellant's possession of said Jot, and to quiet their title". It was contended in that case that a court of equity had no jurisdiction, and Justice Buchanan speaking (p. 62 ancl 63) said : '' It is well settled in this State, and in many if not most jurisdictions, that relief from mistakes in judg­ me:nJts, decrees, or other court proceedings; may, in an otherwise proper case. be had if the mistake is not ju­ dicial, but one of fact. Anderson v. Woodford, etc. 8 Leigh (35 Va.) 316, 328-'9; Rust v. Ware, 6 Gratt. (47 Va.) 5J, 52 Am. Dec. 100; Bryne and wife v. Ed­ monds, 23 Gratt. (64 Va.) 200; Fore v. Foster, 86 Va. 9 S. E. 497; Eppes v. Williams, 89 Va. 794, 17 S. E. 235; Prince's Admr., v. McLemore, 108 Va. 269, 61 S. E. 802. There is no valid objection to proceeding by orig­ inal bill to obtain relief from such a mistake in a court (having· jurisdiction of the parties and the subject mat­ ter) other than that in which the mistake was made, when it cannot be corre0ted in that cause, since surl1 mistake is not corrected by reviewing the judgment. or decree of that court, but by restriaining the parties who may take Hdvnnfage of it from doing- so or by compel­ ling· them to execute proper papen; for the purpoi;;e of correcting- it. Barnesley v. Powell. ] Ves., Sr., .284; Byrne v. Erlmomh;, ~upra; LM~ v. Ohrey-, 22 N ..T. Fiq. 52. The court also properly overruled the demurrer to 18* the b~ll. Its arei;ations are sufficient. *if proved, to entitle the appellants to relief from the alleged mis­ take. The fact that the hill also prays to have the rlou

pellees insists, that it is not distinctly charged in the ·bill that the appellants were in possession of the land in controversy when the suit was brought. ·while the general rule is that the holder of the legal title to land cannot maintain a bill to remove a cloud from his title unless he is in possession (Otey v. Stuart, 91 Va. 714, 22 S. E. 513; Austin v. :Minor, 107 Va. 101, 57 S. E. 609), this ru1e does no~, ru1d ought not to, apply 'Yhere the primary relief sought is upon another and well es­ t.~.;l:.:::~~cJ. 6romd of equity jurisdiction, and the re· moval of the cloud is sought on~y as an incident to that relief. See Booth, etc., v. Wiley, 102 Ill., 84 113-'14; Swick v. Rease, 62 vV. Va., 557, 59 S. E. 510, 511, Ship­ man v. Furnes, 69 Ala. 555, 44 Am. Rep. 528, 531."

It will be obscrw~d that the trial court in that case dis­ missed the bfl, as in the instant case, because it thought the bill was one seeking to remove a cloud from the title, and since it did not appear that Gregory was in the possession of the land (as was then required by the White Act) the suit could not be maintained in equity. But this Honorable Court said, as above set out, that ._ "While the general rule is that the holder of the legal title to land cannot maintain a 'bill to remove a cloud from his title unless he is in possession * * * * ~ this rnle does not, and mt,ght not to, apply where the 19* priniary relief *soitght is 'u,pon another and 1oell-estab­ lished gr01.1,nd of eqi1,ity, and the cloitd i.s~ souqht ( to be removed) only t.is an incident to that 1·elief." Citing case~. (Ttalics ours.)

And the lower court was accordingly reversed.

The learned Circuit Court in the instant case lost sight of the f~c.t tliat the primary relief sought in the instant case was on the ground of mistakes, and not only mistakes of fact but mistakes of f net SO eg-reg1.0U''., and RO palpable, as to amount to lega 1 fraud. (if there min he ~mch a thing) and the original papers, photopictures of w'l1ich are made a pa.rt of the transcript of tbe record. spe~.k out on that issue, and are in­ disputable and axiomatic. There is no question about this, nohvitl1standing tlle m~s,ver of the defendants; a.nd, it may be said, the learned trial court did not question the records or Buchanan Coal Co. vs. vV. A.. Street 13

facts showing incontrovertably the said mistakes; but held, as above shown, that your petitioners, not having been parties to the suit, '' could not now get in to reform'', or ask a court of equity to correct these mistakes. That, we submit with all deference and respect, would not only result in a very grievous wrong to petitioners in the instant cause, but such a rule would, if adhered to, render impotent those grounds of equity jurisprudence which brought about the very foundation and estab'ishment of courts of equity. Indeed, "one of th,~ 20* highest prerog·atives and *one of the favorite sub­ jects of equity jurisprudence is to give relief against the consequence of mistakes,'' accidents or fraud. -

POJNT 3.

The court erred in concluding that the only issue invol­ ved in this suit w·as the mere independent claims to the legal title to the land, and that equity could not take jurisdictiu11. In this conclusion of the learned trial court the secret of most of its errors above complained of appear to be revealed. There is no doubt about the general ru"'e that in disputes in­ volving independent claims to the legal title to real estate, or the boundaries thereof, equity has no jurisdiction; but tht'? court, in extending this g·eneral principle into an iron-clad rule, ign,()red exceptions to the ri,,le as well founded as the rule itself, The rule referred to by the court is as old as the Com· monwea.lth and was quickened in the leading case of Litz, et al., v. Rowe, 117 Va., 752, and has been followed in Virginia in a number of later cases. But our court in that case did not over-look the exceptions to the ru1e, as did the trial court in the instant c.ase, and it expressly so stated. and set them out as ,a. part of and in the very rule itse]f. At page 757, 21• *.Justire Kery speaking, it says:

"That courts of equity are without ;jurisdiction to settle such dispu~es in the (tbsence of ,c;o1ne pec11,liar eq,uity, (not r..risting in this case) is perfectly well ~et­ tled.'' (Italics ours.)

And in the later case of Duty v. Honaker Lumber Com­ pany, 131 Virginia, 35, in citing the Litz-Rowe case, bottom of page, ,Justice Prentis speaking for the court, inter alia, 14 Supreme Court of Appeals of Virginia said, "In the absence of some peculiar equity, courts of equity are without jurisdiction to settle disputes regarding the title and boundaries of land.'' To ignore the exception to this ru1 e, would change the rule itself, and result in destroying the very purpose for which the court of equity was established. It was not attempted to do this in the foregoing cases, and it was so expressly held. There was no allegation or issues in any of those cases in­ volving fraud, mistakes, nuisances, or charges showing the necessity for the avoidance of a multip1icity of suits. These four separate, distinct, and peculiar grounds for equity jurisdiction were specifically charged and relied upon in petitioners' bill of complaint. The learned trial court ruled tha.t petitioners could not seek relief on account of the alleged errors in the partition suit, and sustained the demur· rer to th~ bill on the 26th of July, 1939, (R. 104); and 22• the same day *it entered its further final decree, (R. 105) complained of as aforesaid, refusing to take juris· diction as a court of equity, because the _case involved '' a con­ troversy over ,adverse claims of title to a specific parcel of land arising over a dispute as to the correct location of boun· dary lines.''

DISPUTE OVER BOUNDARY LINES

Whether the dispute is over land, or over the boundary lines, the same rule of law applies and the same exception thereto likewise applies. See Litz v. Rowe, supra. A court of equity is not without jurisdiction except where '' there ar,?. no peculiar equities''. such as we ha.ve in the instant case. Section 5490 of the Code. relating to how boundary lines may be ascertained and established at law, is a pure leg·al rem· edy and the summary tria1 provided for by the express terms of that statute '' shall be cond1wted as other trials at law''. etc. But a court of law, or a jury, cannot. correct mistake8 made in another suit, decrees and proceedings, or any other kind of mistakes-a proceeding under this statute would not be a proceeding in equity, it would be purely a s1,1/m1nary p'l'O­ ceeding at la-w. Sec Wright v. Rabey. 117 Va. 884, 890. Pc· titioners could not get any relief at all in a court of law 23• in the instant ,.v,:case, and, hence, no possible relief by a trial before a jury, since the jury could not correct mis- Buchanan Coal Co. vs. W. A. Street 15

takes made by a court in a partition suit, or other mistakes made by the heirs of James M. R~ tliff, deceased, and their vendees, which brought about the confusion in the boundary lines. Certainly it will not be contended that a court of law, or a jury, can grant an injunction, abate nuisances, or reform exparte sub-divisions, deeds, correct mistakes in decrees in chancery cases off the docket, or reform other court pro­ ceedings.

In the case of Hodg·es v. Thornton, 138 Va. 112, it appears that a suit was brought for partition. The defendants filed a demurrer to the bill. This court stated, in substance (p. 115), the grounds of demurrer, and the action of the lower court as follows: '' That the aforesaid devises of the respective por­ tions of land to the predecessors in title of the plain­ tiffs and defendants, respectively, contained descrip­ tions which passed separate title and right of posi:ses· sion to the 10~ acres belonging to the plaintiff and to the residue of the original tract belonging to the dc­ f endants, so that the two portions of the original tract 'are entirely separate and distinct' in rig·ht of posses­ sion and so that pl.a.intiffs and defendants 'are not anil never have been• * * tenants in common'; that they are merely adjoining land owners; that a court of equity . has no jurisdiction to es tab· ish or settle the boundary line between adjoining land owners; and that whatever 24* rights the plaintiffs have in the *premises may be es­ tablished in a court of law. '' The cause was heard upon the hill, the exhibits therewith filed and the demurrer, and thereupon the decree under review was entered, which provided as follows * * '* the court being of opinion that the plain­ tiffs have proceeded in the wrong forum and should have filed a petition to ascertain and settle the boun­ dary line between the complainants and the defendanh;, in accordance with the statute for such cases made and provided, it is ordered that this cause be and the same is hereby b·ansferred from the equity to the law side of this court, with leave to the complainants, if they shall be so advised. to so aro_end their bill as to make it a petition for the ascertainment of the true boundary line between complainants and defendants. It is fur- 16 Supreme Court of .A.ppeals of Virginia

ther ordered that the clerk of this court do docket this cause on the common law docket of this court.' ''

Of course that was a bill seeking only partition of lands, but the court's opinion shows quite clearly that section 5490 of the Code provided for purely summary proceedings at law and that a law court cannot undertake to assume equity juris­ diction thereunder. At pages 122 and 123 Justice.film§, speak­ ing for the court, said: d',_ '' Does the statutory proceeding, under section 54- 90 of the Code, afford the plaintiffs the relief sought by the bill for partition°? The question must be answered in the negafav-e. The statutory proceeding in question was not in­ tended as a substitute for a suit for partition, nor does 25* it afford the same relief. The former proceeding is governed by the same principles as obtain in an action of ejectment. The Court has no jurisdiction therein to -r esta:blish lines which have never been desig11ated with proper certainty by the source of title of the plaintiff.'' -:;:,--- In short, our Virginia court bas uniformly followed the general rule in America, and in England, as it appears in the 4th Vol. of Pomeroy 's Equity Jurisprudence ( 3rd ed.) section 1384 : '' ·where the boundaries between two adjacent par­ ce · s of land, even when held by their respective owners under purely leg·al titles, have become confused or ob­ scure, equity has, from an early period, exercised a jurisdiction to settle them. Whether this jurisdiction originated in the consent of the parties, and proceeded by analogy to the writs de ratioualibus divisis and de perambulatione facienda used ·at law, or arose in avoid­ ance of a multiplicity of suits, has been discussed; but the determination of the question remains uncertain and conjectural. The mere fact, however, that certain boundaries are in controversv is not of itself sufficient )J.Yto authorize the interference ~f equity; and upon sueh a 'ir- showing the parties would be~ left to their rights and ,\ p , remedies at law./1 Courts of equity will not interpose to ~- ;:? ascertain boiiniaries unless, in addUion to a naked con­ fusion of the controverted bounda,ries, there is suggest- Buchanan Coal Co. vs. W. A. Street 17

ed s01ne pec'll,liar equ-ity" which has arisen from the con­ duct, situation, or relations of the parties.'' Sectio'Jl, 5490 does not and could not ~it~J .iu,risdiction. ,--·

26'x: Therefore, it will be seen that a court of equity origin- ally had, and still has, jurisdiction notwithstanding section 5490 of the· Code, relating to the establishment of boundary lines. This statute clearly shows that it was only intended to be a summary remedy at law, as shown above, and that it does not attempt to supplant the jurisdiction of a court of equity in cases of his kind, over w·hich a court of equity has uniformly and necessarily entertained jurisdiction from the formation of our Commonwealth-and, it is believed, from the time of the formation of courts of equity. That be­ ing the case, since the statute (5490) has no express provision in it, to the effect that it was intended to supplant the juris­ diction of a court of equity, such a: court would retain juris· diction as originally. That courts of equity, having- such jurisdiction before the enactment of the statute retains it, and this too, '' even thoug.n the statutes may furnish a complete and adequate remeay at 1aw"-which of course it does not in the instant case.

See-Filler v. Tyler, 91 Va. 458, and Nichols v. Nichols, 169 Va. (193 S. E. 691) page 404, where Chief Justice Camp­ bell speaking for the the court said: ''In Fillel,' v. rryler, 91 Va. 465, 22 8. }J. 235, 237, it is said: 27* "Courts of equity, having such jurisdiction he- . fore the enactment of the statute * * '"' still retain- if althoug·h the statute may furnish a complete and adt!· quatc remedy at law. Courts of equity. having once av quired jurisdiction, never lose it because jurisdiction 01 the same matters are g·iven to law courts, unless the statute giving such ,jurisdiction uses prohibitory or rt-;· strictive words. 1 Barton's Ch. Pr. 60 61.' See also Beverley v. Rhodes, 86 Va. 415, lQ. S. E. 572; Shield v. Browu, 166 Va. 596, 186 S. E. 33 34; Hoge v. Fidelity Loan & Trust Co., 103 Va. 1, 48 S. E. 494. '' 18 Supreme C.ourt of Appeals of Virginia

The peculiar equities, namely, mistakes, fraud, nui~n.ncP.. multiplicity of suits, injunctive relief specifically sought and prayed for, the abatement of nuisances-all of which were directly alleged and involved, make this case,. it is submitted, one in which petitioners were seeking relief in the only forum where such relief may be granted-a; court of equity-and the door of that forum was ~emptorily closed.

MISTAKE ALONE GIVES JURISDICTION.

It will be observed that a mistake alone made in a par­ tition suit, even without the charge of fraud or other equi­ table grounds, is sufficient grounds for equity 'jurisdiction, and by an original bill in equity, same will be corrected. The case of Fore v. Foster (supra) is a Virginia case directly in point: 28* *Patrick H. Foster and Martha Foster were joint own- ers of a tract of land containing some fifteen hundred acres. In 1873 Martha Foster died intestate and without is­ sue, a.nd a suit was instituted by her heirs against Patrick Foster, the surviving husband, for partition. '11he land was divided by conuniss10ners into equal parts, each containing 755 acres. A decree was entered confirming· the report of Commissioners, and the lang allotted to the heirs of Martha Foster was sold, and Fore became the purchaser, paid for it and received his deed. Later Patrick Foster died, and by proceedings under his will his land was divided and it con­ tained more than was allotted to him. Fore, then, had his land surveyed and it contained less than his part. Fore filed fl bill, convening a'l the parties, charging that a mistake had been made by the commissioners in the original partition. and prayed that it be corrected. The defendants demurred to the bill, and ihe trial court sustained the demurrer, whereupo11 he appealed. ·

The Supreme Court, in reversing the lower court, inte.· alia, said, (86 Va. 106): '' The bill in this case is an original bill to correet. a mistake of fact, and falls wi.thin the general rule thnt an act done or contract made under a mistake or ig­ norance of a material fact, is voidable and relievable in equity, and this rule applies not only to cas~s where Buchanan Coal Co. vs. W. A. Street 19

29* *there has been a studied· suppression or concealment of facts by the other side, which would amount to a • fraud, but also to many cases of innocent ignorance ana mistake on both sides, and it is a material mistake, in~ volving a large sum of money,. or a large tract of land as it may he regarded."

See also Penn. v. Tucker, 114 Va. page 672, where the court cites ·Fore v. Foster, with approval and also quotes from 16 Cyc. as follows : '' In 16 Cyc. 532, it is said: 'Bills to impeach de­ crees for fraud or other like causes, while partaking in some respects of the nature of bills of review, are orig­ inal bills, governed by general equitable principles.' Citing Kernan v. Trice, 76 Va. 690 . . '' In note 93 _p. 533, this statement occurs: 'Bills in nature of bill review.--Any matter clearly showing that a decree is improper, although not obtained by fraud, collusion or surprise, may be made the ground for impeaching the decree by an original bill in the nature of a bill of review. Gregory v. Lenning, 54 Md. 51 ; Arno, d v. Meyers, 1 Lea. (Tenn.) 308.' ''

That the Honorable Circuit Court was in error in ig­ noring the special equitable ground, well-recognized in equity jurisprudence of equity jurisdiction to avoid the multiplicity of suits, see Hagan Company, Inc., v. Norton Coal Co., 137 V~163; Phillips v. Wells, 147 Va. 1045·; French v. Stfange Mining· Co., 133 Va., 627, 629; Pomeroy's Equity Jurispru­ dence Vol. 4 ( 3rd ed.) Ser 1385.

30* "''POn?rS 5 and 6.

Petitioners are advised that it is not necessary to discus<:; or cite authorities for the proposition that the creation of a nuisance is a g-round for relief in equity and, would be of it­ self, sufficient grounds for equity jurisdiction. The same is true of the \1st ground, or specification of error, namely, the special equity jurisdiction for injunctive relief prayed for. The fact is that defendants have no right to cut up any part of the surface of the James M. Ratliff land, or mineral 20 Supreme Court of Appeals of Virginia

tract No. 100,_ into town lots and take exclusive possession of the surface of said mineral tract for building purposes, as alleged and shown in the bill, and not at all controverted, since petitioners who largely own the said mineral have the right to the use of the said surface for mining purposes and defendants' acts in taking exclusive possession of the surface for building purposes, necessarily destroys all easement rights of your petitioners, and such a destruction or invasion of the easement rights, is unquestionably sufficient to give a court of equity jurisdiction, and it should under the law as laid down by this Honorable Court in Hagan v. Norton Coal Company, 137 Va. 163, take jurisdiction and enjoin them 31 * and grant the relief prayed *for. It is there said, in­ ter alia, page 163, Sec. 10: '' If and when the rights of the appellee, or any of them, accrue as aforesaid, and while they exist, the g1·ounds of equity g.urisdiction above mentioned, for the removal of existing clouds upon its right or title * * * or for preventing multiplicity of suits, or disturb­ ance of existing easements, will afford the appellee ample remedy in one suit against all of the grantees of the surface of the land, etc.''

CONCLUSION

Petitioners, for the foregoing reasons, respectfully sub­ mit: that the Honorable Circuit Court was in error in c osing the door of the court of equity, where alone petitioners' pe­ euliar equities are cognizable, and remanding them to law where no remedy is available to correct the mistakes so gross· ly and wantonly committed; that aside from the alleged nui­ 'Sances, fraud, the trespasr.es continuing, the destruction of easements, and the multiplicity of ~mits, any one of which. as petitioners are advised, affords grounds in equity for juri:-,­ diction, the gross and palpab}e errors which appear on the face of the record in the partition suit of Call v. Cole above men- 1.fioned, should be corrected and the decrees of the court, the deed hook where same is recorded, wherein the said erroneou~ report of commissioners appears which is in plain con- 32* tradiction to the report itself, as appears "'not only from the original papers filed in the cause, hut from photopictures macle a part of the record by agreement-and the errors in the ex parte sub-division and deeds-should be Buchanan Coal Co. vs. vV . .A. Street 21

reformed so as to show the simple facts and figures, and thus remedy a grievous wrong. Petitioners are remediless at law where they have been left groping in th~ i~J?enetrable black­ out of equity. ·wherefore, they humbly pray that they be granted an appeal, with a writ of supers~deas, and that this cause be reviewed and reversed, and. that the decrees com­ plained of be annuP ed and vacated, and that this Honorable Court grant them the relief prayed for in their bill, or such relief as tI1e Honorable Circuit Court should have granted, and they will ever pray. This petition will ·be filed with the Honorable H. B. Greg­ ory, one of the Justices oi the Supreme Court of .Appeals of Virginia, at his office, in the Municipal Building, in Roanoke Virginia. Copies of this petition have been mailed to Mr. Rolanct E. Chase, Clintwood, Virginia, and to Mr. W. A. Daugherty, Pikeville, Kentucky, the attorneys of record for the defend­ ants, and same were mailed on the 4th day of November 1939. Counsel for petitioners desire to state orally the reasons for reviewing the decision and decrees of the lower Court herein complained of. Respectfully submitted, BUCHANAN COAL COMP ANY, INC. W. M. RITTER LUMBER COMP ANY YUKON POCAHONTAS COAL COMP ANY, INC. SAYERS POCAHONTAS COAL COMPANY, INC. RED JACKET COAL CORPORATION By Counsel F. H. COMBS, Grundy, Virginia LANDON C. BELL, Columbus, Ohio GREEVER & GILLERPHi, Tazewell Virginin and BURNS and I.IVE.LY, Lebanon, Virginia.

34• We, the undersigned attorneys, practicing before the Supreme Court of Appea's of Virginia, do hereby cer· tify that in our opinion the decrees, and rulings of the Honor­ able Circuit Court of Buchanan County, Virginia, complained of in the foregoing petition, are erroneous and the same 22 Supreme Court of Appeals of Virginia

should be reviewed and reversed by the Supreme Court of Appeals of Virginia. Given under our hands on this the 4th day of November, 1939. F. H. COMBS, Address : Grundy, Va. BURNS & LIVEiLY, Address: Lebanon, Virginia CHAS. P. GILLESPIE of GREE­ VE.R and GILLESPIE. Address : Tazewell, Va. LANDON C. BELL, Addr~ss: 115 East Rich St. Columbus, Ohio.

Appeal and supersedeas awarded, this Dec. 7, 1939-Bond $1000.00. H. B. GREGORY. Received Dec. 8, 1939. M. B. Vl. Buchanan Coal Co. vs. W. A. Street 23

RECORD

-VIRGINIA: PLEAS before the Circuit Court of Buchanan County, at the Court House thereof, on the 26th day of July, 1939. BE IT REMEMBERE,D, that heretofore, to-wit: on the 8th day of February, 1939, came Buchanan Coal Company, a corporation, W. l\L Ritter Lumber Company, a corporation, Yukon Pocahontas Coal Company, a corporation, Sayers Poca­ hontas Coal Company, Incorporated, a corporation, and Re1 Jacket Coal Corporation, a corporation, complainants, hy their counsel, and fi1ed in the Clerk's Office of said court, their bill of complaint in chancery against the defendants hereinafter named; and this bill was regularly matured at rules, as to each and a11 of said defendants thereto. The said bill of complaint, with such of the exhibits filed therewith and made a part thereof, as are not agreed upon in a stipulation fi1 ed herein, is in w·ords and figures as follows, to-wit; page 2 ] In the Circuit Court of Buchanan County, Virginia: Buchanan Coal Company, a corporation, ,v. M. Ritter Lum­ ber Company, a corporation, Yukon Pocahontas Coal Com­ pany, a corporation, Sayers Pocahontas Coal Comp.any, In­ corporated, a corporation, and Red Jacket Coal Corporation, a corporation, Complainants. vs. BILL W. A. Street, l,raukfo Mae Street, F. M. Ratliff, Mi8souri Compton, Clarence E. Dye, ,v arfield Strickler, Letitia Strick­ ler, C. H. Litton, J. R. Gildersleeve, H. D. ,vright, Minnie Wright, H. Claude Pobst, Trustee in deed of trust from H. D. Wright and wife to secure J. R. Gilders~eeve, S. J. Mul­ lins Martha Mullins, I-I. Claude Pobst. Trustee in deed of trust from S. J. Mullins and wife to secure Mingo Lime and Lumbet Company, A. G. Law, B. C. Bucklin, Mayinie Buck- 24 Supreme Court of Appeals of Virginia

lin, J. D. Dalton, Hattie L. Dalton, J. G. Grace, Levi Mullins, Samantha J. Christian, Mrs. A. M. Christian, Judge W. Mul­ lins, .A. M. Christian, Auty Coleman, Ruth Co~eman, Bruce Abbott, Maude Abbott, Curtis Baldwin, Grace Mullins P. F. Herndon, Evalyn Herndon, Bert Keen; Garnett Keen, ~,. C. Mathews, A. E. Parish, Ivory Killen, Joshua Grace, Bessie Grace, Ollie Roberts, Dave Strunk, James Roberts, F. H. Combs, Trustee in deed of trust from Ollie and James Rob­ erts· to secure Persinger Supply Company, Cleve Willis, Rose Coleman, George Weddie, Lessie Kinser, M. J. Potter, T. W. Ratliff, Ella Ratliff, Edgar M. Call Henry Call, Caroline Cole Gregory, J.B. Ramey, Lena Dye, and H. Claude Pobst, Trustee, in deed of trust from Clarence Dye and wife, to se­ cure Mingo Lime & Lumber Co., $117 4.09, John W. Gillespie, Trustee, in d~ed of trust from S. J. Christian and A. M. Chris­ tian to secure J. T. Altizer, $2000.00, and also to secure the endorsers, George W. Day and H. P. Brittain J. T. Altizer, George W. Daiy, H. P. Brittain, and The Persinger Supply Company, A Corporation, George E. Hall Myrt1e Hall, H. Claude Pobst, Trustee in deed of trust from A. M. Christian and wife to secure Mingo Lime & · Lumber Co.,. and Mingo Li~e & Lumber Company, a corporation, De:liendants. page 3 } To the Honorable Alfred A. Skeen, Judge of said Court:

Your complainants, Y nkon Pocahontas Coal Company, "t corporation, chartered, organized and doing business u:nder the laws of the State of v.,r est Virginia; W. M. Ritter Lumber Company. a corporation chartered, organized and doing bus­ iness under the laws of the State of West Virginia; Buchanan Coal Company, a corporation, ehartered, organized .. aml do­ ing business under the laws o~ the State of West Virginia: Sayers Pocahontas. Uoal Companv, a corporation. chartered, organized and doing busine~s uncler the laws of the State of Virginia; ancl Red Jacket Coal Corporation. a eorporation. chartered, organized, and doing- business under the laws o.f the State of Delaware~ respectfully repreRent: ( 1) Y ou1· comp '·ainants, other than Red Jacket Coal Cor­ poration, are the owners of certain coal lands and U1e eoal in and underlying certain lands and certain right. privileges and easements in connee-tion with said coal, in, on, and under­ ilying said lands lying in Buchanan C(imnty, Virginia, @n the waters of Levisa River,. and certain p0rtions of said-last. men- Buchanan Coal Co. vs. 1V. A. Street 23

tioned lands involved in this suit, are set out and described inter alia on a map he1·ewith filed as a part of this bill, marked '' Exhibit A'', and are desig11ated on said map as ''Fee Tr. No. 27" and "Mineral Tr. No. 100".

(2) On September 23, 1904, your complainants' prede­ cessor in title, Buchanan Coal and Coke Company, Incorpo­ t!ated, purchased the mineral, together with certain mining rig·hts, privileges, and easements on said '' Fee Tract page 4 ] No. 27", from Henry R. .Ratliff, said deed being of record in the Clerk's Office of Buchanan County, Virginia, in Deed Book No. 29, page 124, certified copy of which is filed herewith as part of this bill, marked '' Exhibit B".

(3) On the same day, that is to say, September 23, 1904, your complainants' said predecessor in title purchased the mineral, together with certain rights, privileges and ease­ ments on said "Mineral Tract No. 100", from James M. Rat­ liff by deed which is recorded in the Clerk's Office of Buch­ anan County, Virginia, in Deed Book No. 28, at page 191, certified copy of which is herewith filed as part of this bill, marked "Exhibit 0".

(4) On December 27, 19:6, your complainants' prede­ cessor in title, w·. l\L Cary, purchased from said Henry R. Ratliff the surface of said "Fee Tract No. 27," which said deed was recorded in said Clerk's Office on March 14, 1907, in Deed Book No. 31, page 534, the mineral or remaining es­ tate in said '' Fee Tract No. 27'' having been acquired by your complainants' said predecessor in title as set out in Parag-rapb (i2) hereof. A copy of said deed. of December 27, 1906, is herewith filed as part of this bill, marked "Exhibit D ". Said "Fee Tract No. 27" and said "Mineral Tract No. 100'' adjoin each other, the common lines between both being as shown bv ~aid three hrnt mentioned deeds-"Exhibits B", "Exhibit 0", and Exhibit D", to be identical and are as follows: page 5 ] Said lines arc described in "Exhibit B" as foUO\\rs: ''Beginning· on a small chestnut on the west bank of the public road, corner to ,James M. Ratliff land, thence with his 26 Supreme Court of Appeals of Virginia lines S 51 04 E 2043 feet crossing the public road three times to a 1arge poplar on a hill side, N 77.48 E 1018 feet to a stake near the foot of the hill, 13.2 feet from a poplar, 8.2 feet from a beech, S 33. E 178 feet crossing the public road to a stake on the north bank of Levisa River." Said lines are described in '' Exhibit C '' as follows: Running from: '' a small chestnut below the road, S 51 04 E 2043 feet to a poplar. N 77 48 E 1018 feet to a stake on a hillside 13.2 feet from poplar, 8.2 feet from beech, S 33 E 178 feet crossing the public road to the beginning." The said beginning being as shown by said '' Exhibit C' ', '' a stake on north bank of Levisa River corner to H. R. Rat­ liff land. '' Said lines are described in "Exhibit D" exactly as des­ cribed in "Exhibit C", and were by said deeds, recognized by the parties to said deeds as the true divtsion line between saitl two tracts of land.

( 5) Immediately after the recordation on March 14, 1907, of the deed of December 27, 1906, your complainants' predecessor in title took actual possession of said "Tract ~o. 27'' under said deed, and it and its successors in title, includ­ ing· your complainants, have had open, notorious, exclusive, continuous, hostile, and adverse possession and control of the same claimjng the tit e in themselves ; that they have paid the taxes thereon regularly each year; exercised rights page 6 ] of ownership thereto ; had tenants thereon continu- ously from that time up to and including· the pres­ ent time, and said period of adverse possession greatly ex­ ceeds the statutory period to establish title by such possessior~, and complain~mts are therefore advised and charge that they own said land in fee simple.

(6) Your complainants huve fee f.imple title to said '' Fee Trart No. 27'' nnder said deed of September 23, 19C4, copy of which is filed herewith as ''Exhibit B", under said deed of December 27, 1906, copy of which is filed herewith as "Exhibit D", and under subsequent deeds, which are here re­ ferred to and macfo parts of th~s bi1l and copies of which wilI be filed herewith if required, by adverse possession thereof, Buchanan Coal Co. vs. w_. A. Street 27

as afore said, under all of said deeds, which subsequent deeds are as follows : (a). Deed from W. M. Cary and L.B. Cary, his wife, to Buchanan Coal and Coke Company, Incorporated, made June 20, 19D8, recorded in the Clerk's Office of Buchanan County, Virginia, in D. B. 35, page 344. · (b). Deed from Buchanan Coal and Coke Company to Fairmont-Buchanan Coal Corporation, dated March 30, 1911, ~ recorded in the Clerk's Office of Buchanan County, Virginia, in D. B. 42, page 303. (c). Deed from Fairmont-Buchanan Coal Corporation to Big Veip. Pocahontas Company, Incorporated, dated March 19, 1915, recorded in the Clerk's Office of Buchanan County, Virginia, in D. B. 46, page 421. (d). Deed from Big Vein Pocahontas Company, a cor­ poration to Fidelity Trust Company, dated January 1, 1915, of record in the qerk's Office of Buchanan County, Virginia, in D. B. 43, page ·203. (e). Deed from T. G. Hobbs, Trustee, to Yukon Pocahon­ tas Coal Company, W. M. Ritter Lumber Company; Buchan­ .an Coal Company, and Sayers Pocahontas Coal Company, dated July 3, 1924, recorded in the Clerk's Office of Buchan­ an County, Virginia, in D. B. 58, pages 536-544.

page 7 ] (7) Your complainants' said predecessor in titlP., and those claiming under it, including your com­ plainants, did not acquire and have not acquired title to the surface of r:aid "1fineral Tract No. 100", but they do own a material interest therein under the deed of September 23, 1904, copy of which has been filed as "Exhibit C".

(8) Your complainants would further show unto your Honor and charge that while they were the owners in fee sim­ p1e, _and in the actual pos~ession as aforesaid. of their sa?d '' Fee rrract No. 27 '', mentioned and described in '' Exhibit B ", and made a part tl1ereof. F. M. Ratliff and W. A. Street, and Frankie Street. his wife, who claimed to own the sur­ f ace of the sairl "Miner'll Tract No. 100", shown in "Exhibit A", and described in "Exhibit B", under and by virtue of a conveyance from one of the heirs of James M. Ratliff, to 28 Supreme Court of 1\.ppeals of Virginia

whom same was supposed to have been assigned by Commis­ sioners of the court in the partition of the estate of the said James M. Ratliff, deceased, hereinafter to be mentioned an

Following are descriptions of the said purported deeds, the names of thP alleged purchas~rs thereof and the names of the present claimants: Buchanan Coal Co. vs. ,v ..A. Street 29 page 9 ] (a) The sub-division into lots made by W. A. Street and Frankie Mae Street, his wife, and F. M. Ratliff, dated June 22, 1936, and recorded in said Clerk's Of­ fice in Deed Book No. 72, page 470. (b) Deed from W. A. Street and Frankie Mae Street and F. M. Ratlift to Missouri Compton, dated June, 24, 1936, and recorded in said C~erk's Office in Deed Book No. 72, page 476, conveying lots No. 29, shown on plat of "Property of W. A. Street and F. M. Ratliff on Grundy- Raven highway, Le­ visa River, adjoining Oakwood Coal Corporation, Bucl!an­ an Co. Va., dated June 22, 1936", recorded in said Clerk's Of­ fice in Plat Book No. 1, page 288. (b-1) Deed from Missouri Compton, widow, to Clarence E. Dye, dated May 30. 1938, and recorded same day in Deed · Book No. 78, page 196, conveying lot No. 29, shown on said plat. ( c) Deed from W. A. Street and Frankie Mae Street and F. M. Ratliff to Warfield Strickler, dated June .24, 1936, and recorded in Deed Book No. 72, page 477, conveying lots No. 31, 32, and 33 shown on said plat. (c-1) Deed from Warfie1d Strickler and Letitia Strick­ ler, his wife, to C. H. Litton, dated Septeiriber 18, 1937, and recorded the April 5, 1938, in Deed Book No. 77, page 481, con­ veying lot No. 32, shown on said plat. (c-2) Deed from Warfield Strickler and Letitia L. Strickler his wife, to W . .A. Street, dated September 2, 1937, and recorded in said Clerk's Office September 3, 1937, in Deed Book No. 76. page 109', conveying lots No. 31 and 33, shown on said plat. (c-3) Deed from W. A. Street and wife to .J. R. Gil­ dersleeve and H. D. Wright, dated September 3, 1937, and re­ corded the svme day in Dce~l Book No. 76, page 110, convey­ ing lot No. 31. ( c-4) Deed of trust from H. D. ·wright aud Minnie Wright, his wife, to H. C1aude Pobst, Trustee, dated May 21, 1938, and recorded· the same day in Trust Deed Book No. 6, page 27, conveying an undivided one half of lot No. 31, to se­ cure J. R. Gildersleeve $3000.00. 30 Supreme Court of Appeals of Virginia

(c-5) Deed from W. A. Street and wife to S. J. Mullins, dated September 17, 1937, and recorded September 18, 1937, in Deed Book No. 76, page 155, conveying lot No. 33. (c-6) Deed of trust from S. J. Mullins and Martha Mul­ lins, his wife, to H. Claude Pobst, Trustee, dated March 22, 1938, and recorded the same day in Trust Deed Book No. 6, page 9, conveying Lot No .. 33 to secure Mingo Li.me & Lumber Company $2142.40. page 10 ] (d) Deed from W. A. Street and Frankie Mae Street and F. l\L Rat;iff to A. G. Law, dated June 24, 1936, and recorded in Deed Book No. 72, page 478, con· veying lots No .. 19, and 20, shown on said plat. (e) Deed from ·w. A. Street and Frankie Mae Streel, and F. M. Ratliff to B. C. Bucklin, dated June 24, 1936, and recorded in said Clerk's Office in Deed Book No. 72, page 482, conveying lot No. 38, shown on said plat. ( e-1) Deed from B. C. Bucklin and Maymie Bucklin, his wife, to George E. Hall and Myrtle Hall, dated January 30, 1937, and recorded February 3, 1937, in Deed Book No. 7 4, page 277, conveying lot No. 38. (f) Deed from 'N. A. Street and wife and F. :M. Rat­ liff to J. D. Dalton, dated June 24, 1936, and recorded in Deed Book No. 72, page 486, conveying lot No. 18, shown on said plat. (f-1) Deed from J. D. Dalton and Hattie L. Dalton, his ·wife, to vV. A. Street, dated June 12, 1937, and recorded June 17, 1937, in Deed Book No. 75, page 306, conveying lot No. 18, shown on said plat. (f-2) Deed from W. A. Street and ·wife to J. G. Grace dated June 18, 1937, and recorded June 26, 1937, in Deed Book No. 75, page 343, conveying lot N' o. 18, shown on said plat. (g-) Deed from ,v. A. Street and Frankie Mae Street, his wife, and F. l\L Ratliff to Levi Mullins, dated ,June 24, 1936, and recorded in Deed Book No. 72, page 516, conveying lots 22 and 23, shown on said plat. (h) Deed from W. A. Street and wife and F. M. Rat­ liff, to Mrs. A. M. Christian, dated June 24, 1936, and re- Buchanan Coal Co. vs. ·w. A. Street 31

corded in Deed Book No. 72, page 561, conveying lots 27 and 28, shown on said blue print. (i) Deed from \V. .A. Street and wife and F. :M. Ratliff, to Judge VV. Mullins, dated June 24, 1936, and recorded in Deed Book No. 75, page 133, conveying lot No. 26, shown on said plat. (i-1) Deed from ,Judge W. Mullins to Mrs. A. M. Chris­ tain, dated May 20, 1937, and recorded January 22, 1938, in Deed Book 77, page 131, conveying lot No. 26, shown on said plat. (h-i-1) Curative deed from W. A. Street and· wife and F. M. Ratliff, parties of the fjrst part, Judge vV. Mullins, widower, party of the :second part, and Samantha J. Chris­ tian, party of the third part, dated July 15, 1938, and re­ corded in Deed Book No. 78, pag·e 412, curing title to lots 26, 27, and 28, shown on said p: at. page 11 ] (h-i-2) Deed of trust from Samantha J. Chris- tain and A. M. Christian, her husband, to H. Claude Pobst, Trustee, dated July 21, 1938, and recorded July 22, 1938, in Trust Deed Book No. 6, page 73, conveying lots 26, 27 and 28, shown on said plat to secure Mingo Lime & Lumber Company $3954.13. (j) Deed from "\V. A. Street and wife and F. M. Ratliff to Auty Coleman, dated June, 24, 19-36, and recorded in Deed Book No. 73,, page 227, conveying lot No. 21, shown on said blue print. (j-1) Deed from A uty Coleman and Ruth Coleman, his wife, to Bruce Abbitt and :Maude Abbitt, dated November 4, 1936, and recorded February 2, 1937, iu Deed Book No. 74, page 274, conveying lot No. 21 shown on said plat. (k) Deed from w·. A. Street anrl wife and F. M. Rat­ liff to Curtis Ba!dwin, dated August 31, 1936, and recorded in Deed Book No. 73, rage 291. eonveying lot No. 6, shown on said blue print. (1) Deed from ·w. A. Street and wife and F. M. Rat­ liff to Martha. Mullins and Grace Mullins, dated June 24, 1936, and recorded in Deed Book No. 74, page 144, conveying Lot No. 25, shown on said blue print. 32 Supreme Court of Appeals of Virginia

(m) Deed from W. A. Street and wife and F. M:. Rat­ liff to P. F. Herndon and Evalyn Herndon, dated June 24; 1936, and recorded in Deed Boqk No. 74, page 164, conveying lot No. 36, shown on said blue print. (n) Deed from W. A. Street and wife and F. M. Rat­ liff to Bert Keen and Garnett Keen dated June 24, 1936, and recorded in Deed Book No. 75, page 248, conveying lots No. 34 and 35 shown on said blue print. (n-1) Deed from Bert Keen and Garnett Keen, his wife, to F. C. Mathews and A. E. Parish, dated September 15, 1937, and recorded the same day in said Clerk's Office in Deed Book No. 76, page 145, conveying lots 34 and 35, shown on said plat. (o) Deed from W. A. Street and wife and F. M. Ratliff, to Ivory Killen, dated June 24, 1936, and recorded June 26, 1936 in Deed Book No. 75, page 298, conveying· lots No. 14, 15, 16, and 17, shown on said plat. ( o-1) .Deed from Ivory Killen (single) to Joshua Grace, dated June 16, 1937, and recorded June 26,.1937, in Deed Book No. 75, page 352, conveying lot No. 16, shown on said plat. ( o-,2) Deed from Joshua Grace and Bessie Grace, hl~1 wife to Orie Roberts, dated October 22, 19'37. and recorde~ same day in Deed Book No. 76, page 29:), conveying lot No. 16, shown on said plat. page 12 ] (o-3) Deed from Ivory Killen (single) to Dave Strunk, dated April 5, 1937, and recorded July 11, 1938, in Deed Book No. 78, page 363, conveying lot No. 17, as shown on said plat. ( o-4) Deed of Trust from Ollie Roberts and James Rolr erts, her husband, to F. H. Combs, Trustee,

( q) Deed from W. A. Street and wife and F. M. Rat­ liff, to Rose Coleman, dated June 24, 1936, and recorded in Deed Book No. 78, page 59, conveying lot No. 37, shown on said plat.

(q-1) Deed from Rose Coleman to George Weddie ana Lessie Kinswer, dated May 4, 1938, and recorded same day in Deed Book No. 78, page 66, conveying lot No. ·37, shown on said piat. ,

(r) Deed from W. A. Street and wife and F. M. Ratliff to M. J. Potter, dated February 20, 1937, and recorded Sep­ tember 29, 1938, in Deed Book No. 79, page 203, conveying lot No. 24, shown on said plat.

(s) Deed from T. W. Ratliff and Ella Ratliff, his wife, to F. M. Ratliff and W. A. Street, lot No. 1, of 205 acres as­ signed to T. W. Ratliff in the partition of the James M. Rat­ liff land, decree partitioning same entered May 13, 1936, in Chancery Order Book No. 9, page 188.

(B2) Deed of Trust from Clarence Dye and Lena Dye, his wife to H. Claude Pobst, Trustee, dated November 8, 1938, and recorded November 9, 1938, in Trust Deed Book No. 6, page 121, conveying lot No. 29, to secure Mingo Lime & Lum­ ber Company $117 4.09. (H-I-3) Deed from S. J. Christian and A. M. Christian her husband, to John vV. Gillespie, Trustee, dated September 24, 1938, and recorded October 15, 1938, in Trust Deed Book No. 6, page 100, conveying- lots 26, 27, and 28, to secure J. T. Altizer a note for $2000.00 endorsed by George Day and H. P, Brittain and to sec-ure said endorsers.

(o-5) Mechanic's lien against Lot No. 16 of .James Rob­ erts, dated November 12, 19313, and recorded November 14, 1938, in Misce·lancous Lien Docket No. 1, page 320, to se­ ·cure The Persinger Supply Company, $870.49. (T) Deed from vV. A. Street and Frankie J\{ae Street, his wife, and F. M. Ratliff, to .T. B. Ramey, dated June 24, 1936, and recorded November 7, 1938, in Deed Book No. 79, page 406, conveying lots 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, . page 13 ] 12, and 13, as shown on said plat. · 34 Supreme Court of Appeals of Virginia

· Copies of the deeds mentioned are described in Paragraph . "8" of this bill are filed herewith and in the order given, marked respectively "Exhibits "a" to "t ".

(9) While, as shown above, said F. M. Ratliff and 1.N. A. Street and :B.,'rankie Str·eet, his wife, have sold and pur-· ported to convey the above described lots, the fact is that they have laid off and are offering for sale, and will sell unless in­ joined therefrom, a large number of additional lots which likewise include portions of complainants' said '' Fee Tract No. 27' ', and any such further encroachments, sales, or pur­ ported conveyances will create additional clouds on the title thereto, un1ess they are enjoined from so doing, as prayed for in this bill.

(10) The wrongful acts of said F . .M. Ratliff and vV. A. Street and Frankie Street, his wife, in attempting to sell and convey the aforesaid portions of complainants' said '' Fee Tract No. 27", have created such a host of claimants to said portions of said tract that it is necessary to institute this suit against all of said claimants in order to avoid a multiplicity of suits, all based upon the same grounds, and to bring be­ fore the Court in one suit all parties participating· and in­ terested in and profiting by the said wrongful acts of said F. l\L Ratliff and vV. A. Street in attempting to sell and convey complainants' property, as aforesaid.

(11) Your complainants would further show, and page 14 ] charge that the surface of tract known as ":Min- eral Tract No. IJO", elaimed by the said w·. A. Street and Frankie Street, his wife, and F. M. Ratliff, was acquired by them from one of tbe heirs of the late James l\L Ratliff; that the said .J arnes l\L R::itliff died intestate, and a suit was instituted in the Circuit Court of Buchanan County, Virginia, in October, 1935 having for its object the partition of the surface trach; of land of which he died seized and pos­ sessed among his lawful heirs: tluit the stvle of s-iid suit is Edgar l\L Call vs. Caroline Cole, Fullen Ratliff and T. ·w. Ratliff; that Commfr,sioners were appointed in s:1id suit to partition said surface among tl1e heirs of the said James M:. Ratliff, deceased, and the said commissioners made their re­ port of partition of said land, whic.h was duly filed with the papers in said cause, and marked filed as of the 7th day of Buchanan Coal Co. vs. \V. A.. Street 35

.April, 1936, and after various proceedings and exceptions, not material or necessary to be mentioned herein, this Hon­ orable Court on the 13th day of May, 1936, entered a;. decree purporting to confirm said report as made;_ that the said de­ cree purported to embody an exact copy of the said report of said commissioners and said decree was ordered to be record­ ed, and was duly recorded in the Clerk's Office of Buchanan County, Virginia, in Deed Book No. 72, page 436, and also in Chancery Order Book No. 9, page 188, thereof. Complain­ ants here charge that said commissioners' report was, how­ ever, incorrectly copied into the decree; that there were vari­ ous mistakes made· therein, and among other mistakes and omissions, the person who prepared the decree attempted to copy tlrn original report of the said commissioners failed to copy the description of the land therein involved page 15 ] as contained in said report and by mistake left out certain calls, courses and distances describing the land attempted to be partitioned. .Among other vital mis­ takes in copying the said report into the decree, and which :vow appears in the deed and chancery book aforesaid. there was omitted from the decree an entire call in the said com­ missioners' origina1 report of partition. namely, '' thence N 4 deg. 30 minutes E 165 feet to a stake in the road.'' That the property bounded by this call was assigned to T. ,v. R.atliff in said partition suit, and was by him conveyed. or attempted to be conveved. to W. A. Street and F. l\L R.atliff. That in addition to the foregoin~ major mistakes, the following minor errors occur ju said final decree as recorded in Deed Book No. 72, at page 438 441, inclusive; · ( 1) In Lot Ko. 1, call No. 2, "N 41 25 vV 395.3 feet" a p­ pears in the report of the conunissionen;. In the final decree this c.all appears as "N4l 25 vY 395.6 feet." (2) In Lot No. 1, call No. 32, "North 1544 feet" appears in the report of the commissione1·s. In the final decree thi8 can appears a~ '')forth 154.4 feet". (3) In L-ot Ko. 2, call No. l, "S 64 00 E 314" appear~ in the report of the commissioners. Tn the final decr~e this call appears af. "R 64 00 ~ :-114.1 feet." ( 4) In Lot No. 4, rall No. 28. "S 59 15 vV 96.5 feet to a red oak shunp, chestnut oak wit., a corner to T. "\V. R.atliff'H 36.6. acres,'' appears in the report of the commissioners. In 36 Supreme Court of Appeals of Virginia

the final decree this call appears as '' S 59 15 W 96.5 feet to a red oak stump, ehestnut oak wit., a corner to T. W. Ratliff's 36. 3 acres.'' page 16 ] (5) In Lot No. 4, call No. 44, ''N 37 10 W $25 feet to a stake on the bank of a drain, ( S 23 W 66 feet from a walnut stump) '', appears in the report of the com­ missioners. In the final decree this ca'l appears as "N 37 10 W 325 feet to a stake on the bank of a drain, S 23 W 66 feet to a walnut stump". That the true boundary line of the James M. Ratliff land where here in controversy was designated as beginning with, "A small chestnut be~ow the road, S 51....:04 E 2043 feet to a _poplar, N 77-48 E 1018 feet to a stake on a hillside, 13.2 feet from a poplar, 8.2 feet from a beech." That the above boun­ dary is exactly the same as complainants' boundary line, bounding the land in dispute. The true boundary lines, of the James M. Ratliff land, under which defendants seek to claim and that of the deeds under which complainants claim, as set forth in the deeds ~ade by said _James M. Ratliff and Henry R. Ratliff, exact­ ly coincide yet in the aforesaid partition suit, the said com­ missioners, as your complainants are informed and believe and therefore charge and aver, for reasons unknown to com­ plainants, utterly disregarded the boundary lines of the James M. Ratliff land, which they were purporting to partition, ran said lines, beginning with· '' bunch of small chestnuts at the side of the road at the mouth of Bridge Branch, thence up the river S. 46% E 110 po:es to a dogwood and beech," and there­ by took in the portion of complainants' land here in contro- versy. In any event, the fact is that in said par­ page 17 ] tition said lines were erroneously run. And com- plainants charge and aver the wront.irful inclusion of complainants' land as aforesaid, has been continued by deeds by the heirs of James M. Ratliff, and particularly by T. W. Ratliff and :B-,. M. Ratiiff, and by the defendant, W. A. Street, who along with F. l\L Ratliff, has undertaken to in· c'ude said land of complainants' in au attempted sub-division wherein portions of same were attempted to be dedicated to the public as streets, etc., and other portions whereof have been sold and attempted to he conveyed to various parties, defendants in this cause. Buchanan Coal Co. vs. VV. A. Street 37

Your complainants aver that by reason of the manifold mistakes and errors in said partition suit it is impossible to undertake to allege all of them, specifically, but the record in said cause is herewith exhibited, from which said mistakes and errors will clearly appear, and your complaim;mts further charge and aver that by reason of said mistakes and errors and by reason of the attempt to take and appropriate to their own use and acquire tif e to complainants' land, which your complainants believe was intentional, as aforesaid; a fraud has been and is being perpetrated upon the court and a grevi­ ous wrong has been done and is being done to your complain­ ants, which a court of equity will, and of which it has ex­ clusive jurisdiction to remedy. Your complainants further charge and aver that said par­ tition suit, while undertaking to adjudicate concerning cer­ tain lands of your complainants, was instituted and conduct­ ed solely by the heirs of James M. Ratliff; none of page 18 ] your complainants were parties to it nor did any of them have any knowledge of any of the proceed­ ings therein; that the first intimation which any of complain­ ants ··had of the mistakes and wrongs therein done or of any of the proceedings therein had, was long after said suit was ended and had been dismissed from the docket, when,. de­ fendants, Street and Ratliff and their vendees commenced to trespass upon your complainants and exercise acts of owner­ ship, upon its said land; that thereupon complainants, immed· iately protested, gave notice of its rights and warned of its purpose to assert and protect its rights to all parties interest~ ed so far as it knew, including said '\V. A. Street and F. M. Ratliff, and it has repeatedly protested, given notice and warning since said time; which said protestations notices and warning·s have been and are being utterly ig110red and disre­ garded by said defendants;

, (12) Your complainant, Red Jacket Coal Corporation. is the lessee in a coa1 lease from your other complainants of · said two tracts, inter alia. said other complainants being- the lessors in said lease, as will appear from assignment of re,·­ ord in said Clerk's Office in Deed Book No. 74, page 134, and lease eon tract, thereby assigned, of record in Deed Book No. 70, page 1100. (13) Pursuant to the terms of said coal lease, your com­ plainant, Red Jacket Coal Corporation has entered upon the 38 Supreme Court of Appeals of Virginia iands covered by said lease, situate in Buchanan County, Virginia, and has more particularly entered upon ''Fee Tract No. 27", shown on "Exhibit A" hereof, and has page 19 ] built and erected thereon a large number of dwel- ling houses and other structures for the convenien­ ce, of, and to be used by the employees of your complainant, Red Jacket Coal Corporation, in connection with its business of mining coal under said coal lease from your said other con1- plainants.

(14) The dwelling· houses referred to in Paragraph ''13'' hereof are well constructed, sanitary, healthful, buildings, and were so intended to be when they were constructed by your complainant, Red Jacket Coal Corporation; and your complainant, Red Jacket Coal Corporation, has constructed a sewage disposal facility to serve the said dwe'ling houses.

(15) Sometime heretofore, to-wit: On the 31st day of May, 1938, the sanitary officer for the State of Virginia, whose duty, so your complainant is advised, is to supervise sanitary conditions for Buchanan County, Virginia, complain­ ed to your complainant, Red Jacket Coal Corporation, that certain privies and open sewers were located on your com­ plainants' property hereinabove described in the above listed deeds, ".Exhibits "a" to "t", some purporting to having been sold in the lot sale hereinabove referred to, and others at other times, and occupied by the parties claiming under the aforesaid deeds purporting to convey said lots.

(16) Upon receiving said complaint, your complainant, Red Jacket Uoa. Corporation, caused an investigation of the premises to be made and found the facts to be as stated in said complaint, and found that the claimants and occupants of said lots, or some of them, were using open .sew- · page ~O ] ers dangerous to the health of your said complain- ants' employees living in the houses erected by it for them on saicl "Fee rl,ract No. 27", and so creating and_ maintaining public nuisances and continuous trespasses up­ on complainants' '' Fee Tract No. 27' '. Being witbout remedy at bw, your complainants come into this Court of 'Equity where such matters are properly cognizant and pray that ·w. A. Street, Frankie Mae Street, F. M. Ratliff, Missouri Compton, Clarence E. Dye, Warfield _ Buchanan Coal Co. vs. W. A. Street 39

Strickler, Letitia Strick!er, C. H. Litton, J. ~- Gildersleeve, H. D. "\Vright, Minnie Wright, H: Claude Pobst, Trustee in deed of trust from H. D. Wright and wife to secure J. R. Gildersleeve, S. J. Mullins, Martha Mullins, H. Claude Pobst, Trustee in deed of trust from S. J. Mullins and wife to se­ cure Mingo Lime & Lumber Co., A. G. Law, B. C. Bucklin, Maymie Bucklin, J. D. Dalton,. Hattie L. Dalton, J. G. Grace, Levi Murins, Samantha J. Christian, Mrs. A. M. Christian, Judge W. Mullins, A. M. Christian, Auty Coleman, Ruth Cole­ man, Bruce Abbitt, Maude Abbitt, Curtis Bald·win, Grace Mul­ lins, P. F. Herndon, Evalyn Herndon, Bert Keen,. Garnett Keen, F. C. Mathews, A. E. Parish, Ivory Killen, Joshua Grace, Bessie Grace, Ollie Roberts, Dave Strunk, James Rob­ erts, F. H. Combs, Trustee in deed of trust from Ollie and James Roberts to secure Persinger Supply Co., C'.eve Willis, Rose Coleman, George. W eddie, Lessie Kinswer, M. J. Pot­ ter, T. W. Ratliff, Ella Ratliff, Edgar M. Call, Henry Call, Caroline Cole Gregory, J. B. Ramey, Lena Dye, H. Claude Pobst, Trustee in deed of trust from Caroline Dye and wife to secure Mingo Lime & Lumber Co., $117 4.09, John W. Gi11espie, Trustee, in deed of trust from S. J. Christian and page 21 ] A. M. Christian to secure J. T. Altizer, $2000.00, and also to secure the endorsers,. George W. Day, and H. P. Brittain, J. T. Altizer, George ·w. Day, H. P. Brit­ tain, and The Persinger Supply Company, a corporation, Georg·e E. Hall, Myrtle Hall, IL Claude Pobst, Trustee in deed of trust from A. M. Christian and wife to secure Mingo Lime & Lumber Co., and Mingo Lime & Lumber Company, a corporation, be made parties defendant to this suit and re­ quired to answer the same, but not under oath, oath being expressly wa=ved under the statute; and that the various mis­ takes and errors made and committedin the said su;t of CalJ v. Cole be corrected; that the fraud therein attempted to be ;perpetrated be so declared; that the fruits of said mistaln~~ and fraud be denierl to flefendants; that the various decreei:: and proceedings had in said chancery cau$e whereby the 1and of complainants was sought to be taken and appropriated hy defendants be cance1led, reformed and corrected so as to ex­ clude from their operation complainants' said land; that all maps, plats, attempted dedications, contracts a.nd deeds mad11 by defendants or any of them, or under which defendants or any of them seek to hold, claim or use any of complainants' land be cancelled and annul1ed, and that said defendants, res- 40 Supreme Court of Appeals of Virginia

pectively may be required to execute to complainants deeds, .release deeds, disclaimers or other proper instruments in writing, releasing and conveying to complainants any and all claims which they respectively have or are asserting to any of complainants' said land, that, in the event of their fai:ure to execute said deeds, release deeds disclaimers, or other prop­ er instruments in writing within thirty days after the entry of a decree requiring them so to do, that F. H. page 22 ] Combs be appointed a Special Commissioner of this Court, and authorized, empowered, and direct­ ed to execute such deeds, release deeds, disclaimers, or other prqper instruments in writing for and on behalf of said de­ fendants, and to deliver same to said complainants, and that complainants' title to "Fee Tract No. -27" be quited and ad­ judged to be valid as against the defendants herein; and that the defendants, F. M. Ratliff and W. A. Street and Frankie Street, his wife, be perpetually enjoined and restrained from se:ling and conveying any more additional lots laid off and numbered by them as alleged herein, insofar as they include any part or parts of said "Fee Tract No. 27" ; that the de. fendants herein be perp~tually enjoined and restrained from trespassing upon said '' Fee Tract No. 27' ', and from mam­ taininr: on the lots herein described and particularly on that portion of said lots which include portions of said "F'ee Traet No. 27" the nuisances described in this bill; namely, open sewers, and any other prac.tices dangerous to the health of the employees of the complainant, Red Jacket Coa1 Corpo­ ration, and to the public, and that the defendants be perpet­ ually endoined from trespassing on said "Fee Tract No. 27", and from maintaining any nuisances thereon or affecting .the same, whether on the same or on said '' Mineral Tract No. 100"; Your complainants pray that this cause, if deemed neces· sary, be referred to one of the commissioners of thi_s Honor­ able Court with instructions to make and report to the Court a list of the multitudinous errors, omissions, and mistakes in the aforesaid suit, decrees and orders of the court surveys.

maps, ex parte sub-divisions1 plats, and other muni· page 23 ] ments of title of the defendants hereinbefore me_n· tione.d, as well as all other errors and mistakes in the claim and paper title of the defendants effecting, or like­ ly to effect, your complainants' title as aforesaid, as well as to such other matters herein charged, or by counsel deemed Buchanan Coal·Oo. vs. W. A. Street 41

pertinent. .And your complainants pray for all such other, further, and general relief, as the nature of their cause may require, or to equity shall seem meet, and they will ever pray, etc. BUCHANAN COAL COMP ANY W. M. RITTER LUMBE·R COMP ANY YUKON POCAHONTAS COAL, CO. INC. RED JACKET COAL CORPORATION By Counsel LANDON C. BE,LL GREEVE.R & GILLESPIE BURNS & LIVELY F. H. COMBS page 24 ] State of Virginia, County of Buchanan, to-wit: I, Helen Combs, a Notary Public of Buchanan County, Virginia, do hereby certify that F. H. Combs, whose name is signed to the foregoing bill, has this day personally appeared before me in my said County, and made oath before me that he is, and for seYeral years has been attorney in fac.t for som~ of the complainants ; that he is attorney for and agent of each and all of the complainants in said bill and has been for ~ great many years; that he has read the said bill of complaint and personally knows many of the allegations therein con· tained to be true, and that the other allegations which he does not personally know to be true. he believes to be true. Given under my hand, this February 6th, 1939. HELEN COMBb, Notary Puhlic. page 241,h ]

The partition suit of Edgar .M. Call vs. Caroline Cole et al. is exhibited with the original bill in the case at bar, see page 17 of this transcript, but same lms not been copied here­ in, for the reason that the stipulation of counsel, shown here­ in on page 31, provides that in making up the record, photo­ static copies of the record of said partition suit may be filed, instead of certified copies. Photostatic copies are presented herewith in a separate envelope. 42 Supreme Court of Appeals of Virginia

Buchanan Coal Company, a corporation, et als, Complainants v. () STIPULATION W. A. Street, et als, Defendants It is hereby stipulated and agreed between the attorneys representing the complainants and the attorneys representing the defendants, in the above styled chancery cause, final de­ cree in which cause was entered on the 26th day of July, 1939, and copied in the record, as follows: 1st. That the legal title to all the coal and minerals rights, easements and privileges on the 702 acres of land that were conveyed by James M. Ratliff and wife to the Buchan­ an Coal and Coke Company, Incorporated, by the deed dated September 23, 1904, and recorded in the Clerk's Office of Buchanan County, Virginia, in Deed Book No. 28, page 19:t, a copy of which deed is filed with the bill of comp1aint as '''EXHIBIT C '', by regular conveyances, as set out in the bill, became vested in. and are now owned by the complainants, in the proportions and interests stated in the bill.

2nd. That the fee simple title to the coal and minerals to the Henry R. Ratliff tract of land described in the bill as ''fee tract No. 27", became vested in the Buchanan Coal and Coke Company, Incorporated, by the deeds set out in the bill of complaint, copies of which deeds are filed with the bill as "EX.Band EX. D" and that said tract, by regular conveyan­ ces, as set out in the bill, became vested in fee simple, in, and is now owned by the complainants in the proportions and in­ terests set out in the bi"l. But this stipulation is not to be binding on any of the parties hereto as to the correct location of the lines between the James M. Ratliff and Henry R. Rat­ liff tracts. page 26 ] 3rd. That .James lvI. Ratliff and wife are both dead; that after their death their four children and heirs at Jaw, name'y: F. M. Ratliff, T .W. Ratliff, Edgar M. Call; ( daugh1Jer). and Caroline Cole, in the chancery suit in the Circuit Court of Buchanan County, Virginia, partitioned a tract of land of 7Ci2 acres, ( called in tl?e partition suit 673 acres) among- themselves. The style of this suit was Edgar M. Call v. Caroline Cole, et als. That the portion of said land laid off and assigned in the said partition suit to T. W. Ratliff was by deeds dat~d Buchana~1 Coal Co. vs. ""vV. A. Street 43

December 18, 1935, and May 2,2, 1936, conveyed to F. M. Rat­ liff and W. A. Street, (two of the defendants herein). That the said F. M. Ratliff and W. A. Street and wife have executed various deeds, as set forth in the bill of com­ plaint, conveying various and sundry parcels of said land by deeds substantially in the following forms, to-wit: "This deed made the . . . . day of ...... , in the year 19 .... , between W. A. Street and Frankie Mae Street, his wife, and F. M. Ratliff, (unmarried) parties of the first part, and ...... , party of the second part. WITNESSETH: That for and i~ consideration of the sum of ...... , receipt of which is hereby acknowledged, the said parties of the first part do grant, sell, and convey all their rights, titles and interest unto the said party of the sec- ond part in and to a certain tract, lot or parcel of page 27 ] land, situate on Levisa River in Buchanan County, Virginia, being lot No. . ... , as shown on plat of "PROPERTY OF vV. A. STREET AND F. M. RATLIFF, SUB-DIVISION NO. 2, LEVISA RIVER, BUCHANAN CO., VA", with certificate by parties of the first part, which said certificate has been admitted to record in the office of the Clerk of the Circuit Court of Buchanan County, Virginia, and which plat is found of record in Plat Book No. 2, page 37, reference to which said plat and certificate is here made for a more particular description of the aforesaid lot or parcel of land, and being a. part of the James M. Ratliff estate, sit- uate ...... There is exce_pted and reserved from the operation of this conveyance· whatever mineral rights and privileges that have heretofore been conveyed. There is hereby reserved from this conveyance right of way over and across the aforesaid lot for sew.er lines, water lines, gas lines and telephone and electric lines for the bene­ fit. of all the other lots included in the aforesaid plat of lots, and for the benefit of all the present and future owners of al 1 of the lots which have been laid off on said plat, as well as , their successors and assigns, and for the benefit of the re­ maining lands owned hy \V. A. Street and F. M. Ratliff, not laid off into lots, bnt adjoining the Raid plat of lots. Witness the following signatures and seals. (SEAL) (SEAL) (SEAL'' 44 Supreme Court of Appeals of Virginia

page 28 ] That the deeds which are substantially in the above forms, as set forth in the bill of complaint, are therein set forth and numbered as follows: (c) Deed from ·w. A. Street and Frankie Mae Street and F. l\L Ratliff to ·w arfield Strickler, dated June 24, 19'36, and recorded in Deed Book No. 72, page 477, conveying lots No. 31, 32, and 33, shown on said plat. ( c-2) Deed from w· arfield Striclder and Letivia L. Strickler, his wife, to W. A. Street, dated September 2, 1937, and recorded in said Clerk's Office, September 3, 1937, in Deed Book No. 76, page 109, conveying lots No. 31 and 33, shown on said plat. (c-3) Deed from vY. A. Street and wife to J. R. Gilder·· sleeve and H. D. ·wright, dated September 3, 1937, and record­ ed the same day in Deed Book No. 76, page, 110, conveying lot No. 31. ( c-5) Deed from W. A. Street and wife to S. J. Mullins, dated September 17, 1937, and recorded September 18, 1937, in Deed Book No. 76, page 155, conveying lot No. 33. ( d) Deed from W. A. Street and Frankie Mae Street and F. M. Ratliff to A. G. Law, dated June 24, 19'36, and Tecord­ ed in Deed Book No. 72, page 478, conveying lots, No. rn, and 20, shown on said plat. (e) Deed from ,v. A. Street and Frankie Mae Street, and F. M. Ratliff to B. C. Bucklin, dated June 24, 1936, and recorded in said Clerk's Office in Deed Book No. 72., page 482, conveying lot No. 38, shown on said plat. ( e-1) Deed from B. C. Bucklin and }[aymie Buck'in, his wife, to George E. Hall and 1\1.yrtle Hall, dated January 30. 1937; and recorded February 3, 1937, in Deed Book No. 74, pag·e 277, conveying lot No. 38. (f) Deed from \V. A. Street and wife and F. M. Rat­ liff to J. D. Dalton, dated June 24, 1936, and recorded in Deed Book No. 7,2, page 486, conveying lot No. 18,_ shown on said plat. (f-2) Deed from \V. A. Street and wife to J. G. Grace, dated June 18, 1937, and recorded June 26, 1937, in Deed Book No. 75, page 343, eonveying lot No. 18, shown on said plat. Buchanan Coal Co. vs. vV. A. Street 43

(g) Deed from W. A.. Street and Frankie Mae. Street, his wife, and F. M. Ratliff to Levi Mullins, dated June 24, 1936, and recorded in Deed Book No. 72, page 516, conveying lots 22 and 23, shown on said plat. (h) Deed from W. A. Street and wife and F. M. Ratliff,. to Mrs. A. M. Christian, dated June 24, 1936, and recorded in Deed Book No. 72, page 561, conveying lots 27 and 28, shown on said blue print. (i) Deed from W. A. Street and wife and F. M. Rat­ liff, to Judge vV. Mullins, dated June 24, 1936, and recorded in Deed Book No. 75, page 133, conveying lot No. 26, shown on _said plat. (i-1) Deed from Judge W. Mullins to Mrs. A. M. Chris­ tian, dated May 20, 1937, and recorded January 22, 1938, in Deed Book 77, page 131, conveying lot No ..26, shown on said plat. {j) Deed from ,v. A. Street and wife and F. l\L Ratliff to Auty Coleman. dated June 24, 1936, and recorded in Deed Book No. 73, page 227, conveying lot No. 21, shown on said blue print. (j-1) Deed from Auty Co 1 eman and Ruth Coleman, his wife, to Bruce Abbitt and Maude Abbitt, dated November 4, 1936, and recorded February 2 ,19·37, in Deed Book No. 74, page· 27 4, conveying lot No. 21, shown on said plat. (k) Deed from W. A. Str~et and wife and F. M. Rat­ liff to Curtis Baldwin, dated August 31, 1936, and recorded in Deed Book No. 75, page 291, conveying lot No. 6, shown 011 said blue print. (1) Deed from \Y. A. Street and wife and F. M. Ratliff to Martha Mullins and Grace Mullins, dated June 24, 1936, and recorded ht Deed Book No. 74, page 144, conveying lot No. 25, shown on said blue print. (m) Deed from vV. A. Street and wife and Ii'. l\,f, Rat­ liff to P. F. Herndon and Evalyn Herndon, dated .June 24, 1936, and recorded in Dee

(T) Deed from W. A. Street and Frankie Mae Street, his wife, and F. M. Ratliff, to J B .. Ramey, dated June 24, 1936, and recorded November 7, 1938, in Deed Book No. 79, page 406.

Of all the deeds exhibited with the bill, beginning page 31 ] on page 9, thereof as numbered herein, and ending on page 13, as numbered herein, from '' (a'') to "(T)" respectively, the above mentioned ones numbered from " ( c) '' to "(T) ", inclusive, are all the ones that are similar in form to the one copied above; and the other deeds so executed with the bill are copied in full in the record. 4th. It is also agreed that in making up the record photo­ static copies of any part of the record in the partition suit of . Edgar M. Call v. Caroline Cole et als. may be filed instead of certified copies. 5th. That a lis pendeus was fi' ed in this suit but same need not be copied in the record. 6th. In copying the various deeds filed as exhibits with the bill of complaint, the ~ertificates of acknowledgment and recordation need not be copied, but may be shown on each deed the date it was acknowledged, and the date recorded, and the deed book and page where recorded. Given under our hands this August 22, 1939. ROLAND E. CHASE, Attorney for Defendants F. H. COMBS, Attorney for the Complainants

page 32 ] ''EXHIBIT B''

THIS Dl~ED made the 23rd day of September, 1904. by and between HENRY R. RATLIFF and MALINDA RAT­ LIFF his wife, of the County of Buchanan and State of Virginia, part .. of ·the first part and Buchanan Coal and Coke Company, Tncorporated, party of the second part, WITNESSETH: That for and in consideration of Six Hundred & Ninety Eig·ht & 15/100 Dollars, cash in hand paid, the receipt of which is hereby acknowledged, and a bond for Two Thousand and Ninety Four 45 /100 Dollars, bearing even 48 Supreme Court of Appeals of Virginia

date herewith, executed by Buchanan Coal & Coke Company, Incorporated, and payable to said Henry Ratliff on or before three years from date, and secured by a vendor's lien on tho property hereby conveyed, and also in consideration of the delivery of one hundred and Seven shares of the common Stock of Buchanan Coal and- Coke Company, Incorporated, to said Henry ·R. Ratliff, all of which is hereby acknowledged, 1fhe said parties of the first part do grant, bargain, sell and convey unto the party of the second part, its successors or as­ signs, by good and sufficient title with general warranty, the following described property, rights-, privileges, and interests in property, to-wit: All coal, oil, gas, fire clay, found in, on and under tlw following described tract or parcel of land, and all timber from sixteen inches in diameter and under on Twenty Five acres of said land, the parties of the first part reserve from the operation of. this deed the right to build railways or road on the bottom land, along the river, and two acres around the dwelling, together with the rights of ways for page 33 ] excavating and mining said land, and sufficient · surface for making drift mouths, air shafts, wells, and sufficient land on which to erect tipples, tanks, pipe lines, washers, pumping stations, coke ovens, miners' houses, roads, railroads, and sidings, tram roads, incline roads, chutes, and such other devices as is necessary for the successful mining and manufacturing and removing said coal, oil, gas, fire clay, on or underlying said tract of land herein described, or any adjacent tracts that the said party of the second part, or as­ signs may own or lease; and the said parties of the first part further grant unto the said Buchanan Coal and Coke Com­ pany, its successors or assigns, and the right to take the en­ tire body or bodies of coal minerals and metals, oil, and thn­ ber herein conveyed off, throug·h and over the said lauds, with­ out leaving any support for over·ying strata, and without liability for anv injury which may result from breaking of said strata, and the right of mining and removing· said coal and other minerals and metals herein conve-yed, and of ven­ tilating and draining the mines by such openings, ways and structures as shall be necessary for the Rafe, convenient, and economical mining of said coal, mineral, metals, and oils, and the further right of mining and transporting· the coal of and from other lands through and by means of the openings ways Buchanan Coal Co. vs. W. A. Street 49

and structures upon and in the said lands as well as over same; also the right to take and use so much water and stone from said land as said mining purposes may require. The said tract of land on which the coal, oil, gas, fire clay, and mining rights and timber for mining purposes are sold, is described as follows, towit: All that tract or parcel of land lying and being .... the County of Buchanan, and State of page 34 J Virginia, on the waters of Levisa River, a tribu- tary of Big Sandy River, and adjoins the land of J as. M.- Ratliff, Vansant Kitchen & Company, E. K. Boyd, Wm. F. Ratliff, J. P. Looney, and vV. A. Ratliff, bounded and described as fo 1lows: BEGINNING on a small chestnut on the west bank of the Public Road, corner to James M. Ratliff land, thence with his lines S 51 04 E :2043 feet crossing the public road three times to a large poplar on a hill side, N 77 48 E 1018 feet to a stake near the foot of the hill, 13.2 feet from a poplar 8.2 feet from a beech, S 33 E 178 feet crossing the public roads to a stake on the north bank of Levisa R.iver, then down the river and with the middle of same, S 51 W 883 feet, due west 688 feet passing J arnes M. Ratliff's corner and with lines of Van­ sant Kitchen & Company N 76 ,v 388 feet, then leaving the river, N 66 ,v 1510 feet to a stake near the top and on the west side of a spur, 5.1 feet from a chestnut oak & 11.6 feet from a chestnut oak, S 19 45 W 1277 feet to a poplar on top of a spur, then leaving Vansant Kitchen and Company's lines, and with lines of E. K. Boyd's S 27 12 ·w 305 feet to a chestnut oak on top of the dividing· ridge between Levisa River, and Garden Creek then along the top of the ridge, N 25 05 W 565 feet to two sourwoods, N 72 37 W 6~0 feet to a sugar tree N 81 Vl 279 feet to a chestnut, N 45 30 w· 421 feet to a maple and sourwood, N 63 54 W 298 feet to a chestnut oak, N 38 53 ,v 728 feet to a chestnut oak, then leaving E. K. page 35 ] Boyd's lines and the top of the ridge and with line~ of Wm. I~. Ratliff N 30 37 E 2481 feet to a white oak on tl1e top of the ridge between Kindell Branch and Louisa R've1·. then up the J'idg-e and with the top of the same N 89 18 E 34,0 feet to a white oak and Black oak N 74 E 427 feet to a hicko1·v. N 56 27 E 337 feet to a white oak, black oak and pine, N 10 13 E 237 feet to a black oak, N 30 25 E 172 feet to a white oak. N 43 08 E 310 feet to a chestnut and sour­ wood N 52 14 E 345 feet to a hickory and locust N 2G 45 E 278 feet to two sourwoods and a dogwood, N 3 30 W 272 feet to a 50 Suprenie Court of Appeals of Virginia chestnut, N 24 15 E 267 feet to a chestnut oak and sarvice, N 5 08 W 29 18 feet to a chestnut oak, N 72 10 E 817 feet to a chestnut N 21 15 E 570 feet to a gum, N 36 55 915 feet to a double chestnut on top of the ridge between Osborn and Kindell Branches, then leaving Ratliff's lhies and with one line of J. P. Looney's, N 78 36 E 2459 feet to two chestnut oaks on the ridge between Osborn and Lick Branch, then leav­ ing Looney's lines and with one line of W. A. Ratliff's S 21 E 197 ...... to a chestnut oak, then leaving Ratliff's lines and with lines of J.P. Looney's S 58 58 W 374 feet to a chest­ nut oak on the end of a spur, S 46 vV 716 crossing the Os­ burn Branch to a chestnut, S 69 35 "\V 1624 feet crossmg the branch twice two a birch, S 22 013 W 2099 feet feet to a poplar and beech on the east Bank of the branch, then leaving Loo~ey's lines and with one line of James M. Ratliff's S 19 28 W ;2175 feet to the BEGINNING, containing three hundred and sixty eight acres. Also the coal, oil and gas, and mining rights as herein­ before described in a second tract of land locaLy page 36 ] known as the Otter Slide located on the Otter Slide Branch a tributary of Levisa River, describ­ ed as follows: Beginning at a Spanish Oak and maple on spur between Brammers & Otter Slide Branches, then N 17 45 W 950 feet to a chestnut on top of a spur, N 34 30 E 3548 feet to 4 hickorys on top of a spur between Brammers and Harper's Branches, S 34 30 E 2276 feet to a white oak on top .of Fork Spur of Otter Slide, thence S 57 30 "\V 349,4 feet to the be­ ginning, containing one hundred and twenty-two & 4-10 acres. Parties of the first part grant, bargain, sell, and convey unto the party of the of the second part, or assigns, the following described tract of land in fee, located on Harper Branch, a tributary of Dismal River, in Buchanan County, Va., bounded and described as follows: Beginning, at a sourwood and birch at middle of point, thence N 28 37 E 260 feet to a suga1· tree, south of Old House Hollow, N 7 30 E 520 feet to a spruce pine on o:d ~ine N 39 E 12J feet to a large pine (new pointer) at the edg·e of branch, N 22 E 278 feet to a beech on a bench N 30 18 E 222 feet to a hornbeam on hill slde N 45 E 230 feet to a Beech on a bench, N 44 45 W 283 feet to stake in Dismal below a ford N 76 3J E 1261 feet to a stake in same River, S 2 40 E 7.25 feet to a beech near a drain, S 6 10 V\T 711 feet to two chestnut oaks on a spur behveen Old House Hollow and Mill Branch, S 61 E 997 feet to a white oak, black oak, and Buchanan Coal Co. vs. vV. A. Street 51

chestnut corner to W. G. Matney's near Gap, with hollow on each side S 46 30 vV 666 feet to a stake by a dead chestnut with 4 chestnut oak pointers on Fork Spur, S 12 W 375 feet to a stake 6.6 feet above a small chestnut pointer 40 feet below Jas. Keen's house, S 64 30 W 806 feet to a hick­ page 37 ] ory, water oak, and chestnut oak on top of spur, between old House Hollow & Scoot Hollow, N 10 W 128 feet. to a chestnut oak corner to James Nickle 's on said spur, N 52 W 1476 feet to the squrwood and birch, the beginning and containing Ninety two & 6-10 acres. There is reserved from the 92 acre tract the coal and mineral and such rights as were excepted in deed from :M. S. Ratliff to Henry ;R. Ratliff, dated June 22nd, 1889, recorded in Deed G, page 114, records of Buchanan County, Va. The parties of the first part reserve the overland priv­ ileges over the bottom land and 2 acres around dwelling. The said parties of the first part further covenant that they have the right to convey the above mentioned rights and privileges in the said land, to the grantee; that they have done · no act to encumber ·the said land; that the grantee shall have quiet possession of the said property free from all encum­ bra~ces, and that they, the said parties of the first part will execute such further assurances, rights, and privileges, etc.~ in the said land as may be requisite, to make. the title thereto sure and complete in the said party of the second part, its successors, assigns, etc. Witness the following signatures and seals, this 23rd day of September, 1904. · HENRY R. RATLTFF (SEAL) MALINJ)IA RATLTFF (SEAL)

County of Buchanan, to-wit: J, ,v. P. Vance, a Justice of the Peace for the Coun­ page 38 ] ty, aforesaid, in the State of Virginia, do certify that Henry R. Ratliff and Malindia Ratliff, whose names are sig-ned to the writing above, bearing date on the 23th day of September, 1904, have severally aclmowledg·ed th~ same before me in my County aforesaid. Given under my hand this 23th day of September, 1904.

vV. P. VANCE, J. P. 52 Supreme Court of Appeals of Virginia

Virginia, Buchanan County, to-wit: In the Clerk's Office of the Circuit Court of the County and State aforesaid, the 6th day of February, 1905, the fore­ going writing was presented and admitted to record, and to­ gether with the certificate of acknowledgment recorded in Deed Book No. 29, page 124 &c. Teste: ·w. L. DENNIS, Clerl,. D. B. No. 29, page 124.

page 39] ''EXHIBIT C''

THIS DEED, made the 23rd day of September, 1904, by and ·between J runes M. Ratliff and Nancy Jane Ratliff, his wife of the County of Buchanan, and the State of Virginia, parties of the first part, and Buchanan Coal and Coke Com­ pany, Incorporated, party of the second part, WLTNESSErrH: That, for and in consideration of 'Eleven Hundred and Seventy Dollars, cash in hand paid, the receipt of which is hereby acknowledged, and a bond for Twenty Three Hundred and Forty Dollars, bearing even date herewith, executed by Buchanan Coal and Coke Company, In­ corporated, and payable to said James M. Ratliff on or be­ fore three years from date, and secured by a vendor's lien on the property hereby conveyed, and also in consideration of the de:ivery of one hundred and forty shares of the common stock of Buchanan Coal and Coke Company, Incorporated, to said J arnes l\L Ratliff. all of which is hereby acknowledged, the said parties of the first part do grant, bargain, sell, and convey unto the party of the second part, its successors or assigns, by g·ood Hll(l sufficient title with general warranty, the following def.cribed property, rights, privileges, and in­ terest in property, to-wit: All Coal, oil, g·as, found in, on, and under the fo'lowin~~ described tract or parcel of land and a 11 timber fro·n sixteen inches in cUameter and under on tVirty fiye acreR of said land, lying on Mill Ridge which may be standing on said land at the beginning of mining operation, together with the rights of ways for excavating and mining said lflnds and sufficient surface for making drift mouths, air shafts, wells, and suf- ficient 1anc1 on which to erect tipples, tanks nipe page 40 ] lines, washers, pumping stations, roads, and sid- Buchanan Coal Co. vs. W. A. Street 53

ings, tram roads, incline roads; chutes, and such other devices as is necessary for the successful mining and manufacturing and removing said coa~ oil, gas, on or underly­ ing said tract of land herein described or any adjacent tracts that the said party of the second part, or assigns may own or lease ; and the said parties of the first part, further grant, unto the said Bucha~an Coal & Coke Company, its successors or assigns, the right to take the entire body or bodies of coal, oil and timber herein conveyed, off, through under and over said lands, without. leaving any support for overlying strata, and without liability for any injury which may result from breaking of said strata, and the right of mining and removing said coal herein conveyed, and of ventilating and draining the mines by such openings, ways and structures as shall be necessary for the safe, convenient and economical mining of said coal, and oils and the further right of my mining and transporting the coal of and from other lands through and by means of the openings, ways, and structures, upon and in the said lands as well as over same ; also the right to take and use so much water from said land as saitl min1ng purposes may require. The said tract of land on which the coal, oil, gas, and min­ ing rights and timber for mining purposes or sold is describ­ ed as follows., to-wit: All that tract or parcel of land lying and being .... the County of Buchanan, and State of Vil·· ginia, on the waters of Louisa River, a tributary of Big Sandy River, and adjoins the land of Henry Ratliff, Vansan1 Kitchen Co., ,Jno. M. Ratliff. Alex Ratliff Creed pag~e 41 J Cook and others, bounded and described as fol-. Jows: BEGINNING on a stake on North Bank of Louisa River, eor. to H. R. Ratliff land, then down & wi.th the river S 51 "Y\T 883 feet, Due West 383 feet to a stake in a line of H. R. Ratliff 'R and a corner to Vansant Kitchen & Oo's land, then with Vans~nt Kitchen's lines, S OJ 14 W 530 feet to a sugar tree in the Sugar ~rree Cove Hollow, S 9 24 E 1601 feet to a r.pruce pine in tl1e hollow, S 3 30 E -132 feet to a stake in P. hollow, S 25 36 E 296 feet to a pop'ar in a hol­ low, S 10 3'0 ~J 586 fee+ to a dogwood on a hill side above Orn head of a hollow. S 43 80 V-l 235 feet to a chest. oak on ridge be· tween Louis"l River :md Garden Creek and corner to .J olm K. Ratliff's S 1 45 W 687 feet to a chestnut oak and black gum on a spur comer to Creek Cook's land N 18 53 E 2730 feet to a chestnut and chestnut oak on top of ridge dividing 54 Supreme Court of Appeals of Virginia

Garden Creek and Louisa River, and corner to Vansant Kit­ chen and Co's. land, N 2 48 E 431 feet to a chestnut and wahoo on a spur, N 29 13 E 1750 feet to a birch on a cliff N 60 36 E 1881 feet crossing Louisa Ri~er to a pine stump by and below the road corner to Jno. :M. Ratliff's land, N 6 30 W 825 feet to Buckeye sprout by and below road, N 40 18 W 881 feet to a stake on the south side of a drain, N 10 30 E 2244 feet cross­ ing a spur to a chestnut oak on a steep hill side, N 41 07 vY 1086 feet to a beech on the east side of the Rock Lick Branch, then up the Branch N 14 33 E 929 feet to a station on west side of the branch 13.2 feet from a small birch, 13.4 feet from a wahoo corner to W. A. Ratliff's land, N 75 W 180 feet to a beech in a hollow, north 43 W 175 feet to sugar tree in forks - of hollows, corner to Alex Ratliff's land S 45 27 page 42 ] W 402 feet to a small hickory on top of a spur N 75 W 140 feet to white oak on top of spur, N 75 W 140 feet. to a white oak on top of spur S 45 47 W 1481 feet cro~sing the heads of two hollows, to a small ehestnut oak on top of a spur, S 13 15 W 320 feet to chestnut oak on top of a cliff, S 15 16.E 400 feet to a hickory on top of a spur, S 5 22 W .269 feet to a black pine near the top and on the west side of a spur S 81 15 W 105 feet to a spruce pine on a hill side, N 60 33 West 414 feet to two beeches on west bank of water Branch, S 34 38 W 638 feet to a chestnut oak on top of a spur, S 87 34 W 233 feet to a witch hazel in the Grave Yard Hol­ low corner to Vansant Kitchen & Co., S 26 28 ,v 1087 feet to chestnut oak on a spur; S 50 vV 489 feet to two pines on top of a spur, N 41 30 ·w 395 feet to a cucumber in orchard Hollow, S 45 30 vV 652 feet to a white oak on a cliff, N 41 51 W 67 4 feet to a spruce pine near the top of a spur, N 13 30 ·w 2..\-:°j feet to a spruce pine, N 5'% E 261 feet to a sugar tree 011 Rock Bar HoHow, N. 68 30 ,v 496 feet to a b1 ack oak and chestnut oak on spur N 8 46 W 454 feet to chestnut oak on a spur, N 11 3~) E 383 feet to a white oak & spruce pine on hil f side, N 19 30 W 534 fee~ to station in in the Os borne Branch & in a Une of H. R. Ratliff, S 19 21 W 3139 feet to a small chestnut below the road, S 51 04 E 2043 feet to a poplar, N 77 48 E 1018 feet to a stake on a hillside 13.2 feet from poplar 8.2 feet from beech. S 33 E 178 feet crossing the public road to the b.eginning. and containing seven hundred and two acres. The parties of the first part reserve one half an acre around the grave yard and also the rights to use coa1 for domestio · purposes and also reserves the overland privileges Buchanan Coal Co. vs. "\V. A. Street 55

page 43 ] over the bottom land along Levisa River and two acres around the dwelling. The said parties of the first part further covenant that they have the right to convey the above mentioned rights and privileges in the said land to the grantee, that they have done no act to encumber the said land; that the grantee shall have quiet possession of the said property free from all incumbran­ ces, and that they, the said parties of the first part, will exe­ cute such further assurance, rights, and privileges, etc., in the said land as may be requisite to make the title thereto sur~ and complete in the said party of the second part, its succes­ sors, assigns, etc. Witness the following signatures and seals, this 23rd, day of September, 1904. JAMES M. RATLIFF (SEAL) her NANCY X J. RATLIFF (SEAL) mark

County of Buchanan. to-wit: I, W. P. Vance, a Justice of the Peace for the County aforesaid, in the state of Virginia, do certify that James M. Ratliff and Nancy J. Ratliff, whose names are signed to the writing, above, bearing date on the 23rd day of September, 1904, have severally acknowledged the same before me in my County aforesaid. Given under my hand this 23rd day of September, 1904. · W. P. VANCE, .J.P.

Virginia: County of Buchanan, to-wit: In the Clerk's Office of the Circuit Court of the County and State aforesaid, the 14 day of January, 1905, the fore­ going writing was presented and admitted to record page 44 ] and together with the certificate of acknowledg­ ment recorded the 3rd day- of ]february, 1905, in Deed Book No. 28, page 191 &c. Teste: W. L. DENNIS, Clerk. 56 Supreme Court of Appeals of Virginia

page 45 ] '' EXHIBIT D ''

WHEREAS, Henry R. Ratliff and Malinda Ratliff, his wife, of Buchanan County, Virginia, hav,e agreed with VV. M. Cary, of Richmond, Va., to exc~ange and convey to the said W. M: Cary, all the right, title and interest which the said Henry R. Ratliff and wife own in five certain tracts or par­ cels of land located in Buchanan County, Virginia. and in ad­ dition to pay to said ,v. M. Cary Two Thousand Dollars ($2,- 0~0.00) in consideration of the said \V. M. Cary, conveying to the said Henry R. Ratliff a certain farm known as "Oak I-Iill '', located in Halifax County, Virginia, on Dan River; and whereas, the said parties have agreed to execute mutual 1 deeds one to the other, so that the said agreement may be fu - ly and completely carried into effect.. Now, therefore, This deed, made and entered jnto this the 27th day of December, 1906, by and between Henry R. Ratliff and :Melinda Ratliff. his wife, of Buchanan County, Virginia, parties of the first part, and W. M. Cary, party of the second part ; vVitnesseth, rrl1at for and in consideration of the prem­ ises and a deed executed by W. M. Cary, and wife of even date herewith, conveying' said '' Oak Hill'' Farm to the said Henry R. Ratliff, all of which is here aclmow edged, parties of the first part bargain, and sell, grant and convey, unto the party of the second part his heirs or assigns, with covenants of general warra11Ly, all right, title, and interest which they own in and to four of the hve tracts or parcels of land, being conveyed by this deed, and the fifth tract being page 46 ] conveyed by a separate deed, the first tract here- in conveyed is the Home Tract of the said Henry R. Ratliff and wite, located on Louisa River, Buchanan Coun­ ty, Virginia, and adjoins the lands of ,Jas. M. Ratliff, E. K. Boyd, Wm. F. Ratliff and W. A. Rat iff, bounded and des­ cribed as follows: BE-GINNING on a small chestnut on the west bank 'lf the Public road corner to James 1\L Ratliff land, thence with his lines S 51 C·.1 E 2013 feet crossing the public road three times to a large poplar on a hill side N 77 48 E 1018 feet to a stake near the foot of the hill, 13.2 feet from a pop ar, 8.2 feet from a beech, S 33 E 178 feet crossing the public road to a stake on the north hank of Levisa River, 1hen down the river and with the middle of same, S 51 W 883 feet due west 6:S8 Buchanan Coal Co. vs. vV. A. Street 57

feet passing James M. Ratliff's corner and with lines of Van Sant Kitchen & Company N 76 W 388 feet, then leaving the river N 66 W 1510 feet to a stake near the top and on the west side of a spur, 5.1 feet from a chestnut oak and 11.6 feet from a chestnut oak, S 19 45 W 1277 feet to a poplar on top of a spur; then leaving Van Sant Kitchen and Company's lines and with lines of E. K. Boyd's, S 2712 W 305 feet to a chest­ nut oak on top of the dividing ridge between Levisa River and Garden Creek, then along the top of the ridge, N 25 05 W 565 feet to two sourwoods, N 72 37 vV 680 feet to a sugar tree N 81 W 279 feet to a chestnut, N 45 30 W 421 feet to a maple and· sourwood N 63 54 "\V 298 feet to a chestnut oak, N 38 53 W 728 feet to a chestnut oak, thell leaving E. K Boyd's lines and top of the ridge and with lines of Wm. ~,. Rat­ page 47 ] Jiff N 30 37 E .2481 feet to a white oak on top of the ridge between Kindell Branch and Louisa Riv­ er, then up the ridge and with the top of the same N 89 18 E :340 feet to a white oak and black oak, N 74 E 427 feet to a hickory N 56 27 E 337 feet to a white oak, black oak, and yine N 10 13 E 237 feet to a black N 30 25 E 172 feet to a white oak, N 43 08 E 310 feet to a chestnut and sourwood, N 52 14 E 345 feet to a hickory and locust, N 2.0 45 E 278 feet to two dogwoods and a sourwood, N 3 30 vV 272 feet to a chestnut, N 24 15 E 267 feet to a chestnut oak and sarvice N 5 08 W . 298 feet to a chestnut oak, N 72 10 E 817 feet to a chestnut, N 2115 E 570 feet to a gum N 3655 E 915 feet to a double chestnut on top of the ridge between Osborne and Kinde]] Branches, then leaving- Ratliff's lines and with one line of J. P. Looney's N 78 36 E 2459 feet to two chestnut oaks on the ridge between Osburn and Lick Branch, then leaving Loon­ ey's lines and with one line of W. A. Rat1iff 's S 21 E 197 feet to a chestnut oak. then leaving Ratliff's_ lines and with line of J.P. Loonflv's R 58 !'18 \V 374 feet to a chestnut oak on the end of a snur S 46 "\V 716 feet crossing· the Oshurn Branch to a chestnut S 61 35 \V 16:24 feet crossing the branch twice to a birch S 22 08 \V 2099 feet to a poplar and beech on the East bank of the Branrh. then leavimr Loonev's lines ann with one line of .fan1 f'l"' M. Ratliff'~ S 1928 W 2175 feet to tlH; BEBINNING rnntnining Three Hundred and Sixtv eight acres (368 acres) more or Jess, re~C'l'vill(!." only such rights and J?rivileges from this conveyance as were conveyed to the Buch- anan Coal & Coke Company, Inc., bv deed dated tho 23rd, ct'&y of September, 1904, and recorded in Deed Book 29, page 58 Supreme Court of Appeals of Virginia

124, records of Buchanan County, reference to page 48 ] which is here made. The second tract hereby conveyed is located iu Buchanan County, Virginia, and adjoins first tract and be­ ing the same tract of land conveyed to Henry R. Ratliff by J.P. Looney a.nd wife by deed dated 9th day of March, 1906, and recorded in the Clerk's Office of Buchanan County, Vir­ ginia, Deed Book 30 page 428; bounded and described as fol­ lows: BEGINNING at a chestnut oak on the top of the ridge at the head of the Osburn Branch, then down and along the top of said ridge, S 56 33 E 363 feet to two gums S 45 50 W 297 feet to a chestnut, S W 30 W 228 to two chestnut oaks S 247 E 473 feet to two small chestnuts, S 86 14 W 356 feet to a sourwood S 26 07 W 39'2 feet to a chestnut S 60 30 W 191 feet to a chestnut S 27 30 W 261 feet to a locust S 64 "'\V 153 feet to a black oak and sourwood S 25 25 W 175 feet to a black oak stump corner of .A.lex Ratliff's field S 9 30 E 208 feet to two small black oaks, S 24 30 ,v 220 feet to a gum, S 2 30 E 229 feet to two gums, S 77 ,v .148 feet to a chestnut, N 79 15 W 198 feet to a chestnut, S 75 41 W 586 feet to two smal 1. chestnut oaks S 8 E 20'~ feet to a hickory, S 37 45 ,v 198 feet to two chestnuts N 76 ·19 Vv 280 feet to a black oak and two small chestnuts, S 69 52 vV 349 feet to a white oak on a hill side S 83 51 ,v 392 feet to a white oak, on a hill side N 84 37 W 191 feet to a poplar and beech by and on the east side of the Osburn Branch, corner to H. R. Ratliff's land then up the Branch with Ratliff's lines, N 2208 E 2098 feet. to a birch by and on the north side of the Branch N 69 35 E page 49 ] 1624 feet to a chestnut 2~ feet south of the Branch N 46 E 717 feet to a chestnut oak on a hill side N 58 58 E 373 feet to the BEGINNING, containing One Hun­ dred and eight tenths acres, (10).8 acres). more or less, re­ serving on,y such mineral rig-hts and privileges from this tract as were conveyed by J. P. Looney and wifo to the Buch­ anan Co~l & Coke Oompanv bv deed dated .23r::l dav of Sep­ tember, 19~. recorded in Countv Clerk's Office of Buchanan County, Virginia, Deed Book 30, page 88, reference to which is here made. The third tract of land hereby conveyed is known as the Otter Slide tract located on Otter Slide Branch, a tributary of Louisa River, Bue-hanan County, "Virginia, hounded and des­ cribed as follows: Buchanan Coal Co. vs. W. A. Street 59

Beginning at a Spanish oak and maple on Spur between Brammers and Otter Slide Branches, then N 17 45 W 950 feet to a chestnut on top of a spur, N 34 30 E 3548 feet to four hickories on top of a spur between Brammers and Harpers Branches, S 34 30 E 2276 feet to a white oak on top of fork spur of Otter Slide thence S 57 30 W 34914 feet to the Begin­ ning, containing One Hundred and Twenty Two and 4-10 acres, .( 122.4 acres) be the same more or less. Reserving only such coal mineral rights and privileges a~ the parties of the first part conveye_d to the Buchanan Coal & Coke Company, Inc. by deed dated 23rd day of September, 1904, and recorded in Clerk's Office of Buchanan County, Va., Deed Book 29, page 124, reference to which is here made. The fourth tract of land hereby conveyed is located in Buchanan County, Virginia, on the dividing ridge between Dismal and Louisa Rivers, being the same tract of page 50 ] land. conveyed to Henry R. Ratliff by J. H. Stin- son, Special Commissioner, by deed dated the 26th day of July, 1906, and recorded in the Clerk's Office of Buch­ anan County, Virginia. Deed Book 30, page 533, reference to which is here made; bounded and described as follows : Beginning at hvo hickories two chestnuts oaks and two spotted oaks on top of the ridge between Dismal and Louisa River, thence N 5 45 E 326 feet to a hickory and chestnut N 47 45 W 65 feet to a hickory corner to J. V{. Nickels; N 61 10 W 455 feet to a chestnut on a flat spur, S 56 19 W 645 feet crossing a hollow to two sma'l chestnuts, S 25 28 E 3CO feet to a Hickory on top of the ridge between Louisa and Dismal~ then leaving Nickols line and with the too of the ridge N 82 30 E 229 fee~ S 64 E 383 feet, N 54 E 2~8 feet to the begin­ ning, and containing 1J.7 acres, more or less, in fee simple reserving the coal and such rights as .James G. Nickels con­ veyed on said land to Hurt and McGuire. The parties of the first part covenant ·with the party of the second part that they have the rig-ht to convey said land, that they have done no act to encumber the same, that they grantee shall have quiet possession of same free from encumbemnces, and that they, the said parties of the first part will execute such fur­ ther surety of tit1 e as may be requisite. Given under cur hands an

page 51 ] State of Virginia, County of Buchanan, to-wit: I, J. W. Harris, a Notary Public in and for the County aforesaid, in the State of Virginia, do certify that Henry R. Ratliff and Malindia R.. Ratliff whose names are signed to the foregoing writing bearing date on the 27th day of De­ cember, 1906, have severally acknowledged the same before me in my County aforesaid. Given under my hand this 15th day of February, 1907. J .W .HARRIS, Notary Publfo. My commission expires the 10 day of April, 1910.

Virginia, County of Buchanan, to-,vit: In the Clerk's Office of the County and State aforesaid, the 14~h day of March, 1907, this day the foregoing deed ,vas presented and admitted to record together with the annexed certificate of acknowledgment recorded in Deed Book No. ~1, page 534. Teste: JO HIBBITTS, Clerk. By A .M. HIBBITTS, D. C. page 5,2 ] (A)

vVHEREAS. the undersigned "\V. A. STREET and F. M. RATLIFF are the joint and equal owners of a certain parcel of land, situate i~ Buchanan County, Virginia, on Levisa Riv­ er, a tributary of Big Sandy River, and more partieu-arly described as follows, to-wit: BEGINNING at a chestnut he1ow the road ( corner gone) same being called for in the partition of the .T. S. Ratliff e~­ tate, and corner to the portion laid off and assigned to Henry R. Ratliff and a corner to the .James Ratliff tract, thence with the lines of H. R. Ratliff tract as described in said partition, S 48 30 E 1249 feet to a beech and dog"'vood above the old road ( corner standin~ marked) ; thence S 81 00 E 158 2 feet to a stake on P.aid Henrv Ratliff J!ne on tlic State High,vay right of way, thence leaving said Henry R. Ratliff's line and with said highwav riP"ht of way, N 43 30 vV 60.4 feet to a road marker, N 36 55 W 355.9 feet to a road. marker, N 43 02 W Buchanan Coal Co. vs. vV. A. Street 61

242 feet to a marker, N 49 37 W 303.7 feet to a marker, N 59 102 W 332 feet to a marker, N 60 52 W 276.4 feet to a marker, N 55 27 W 440.4 feet to a stake i.n said high way right of way, and on a line of said Ratliff tract, thence with said H. R. Rat­ liff's line S 20 25 W 6.8 feet to the BEGINNING. . Nff\V, THEREFORE, the undersigned W. A. Street and Frankie Mae Street, his wife, and F. M. Ratliff (unmarried) do hereby state that they have agreed to and do hereby sub­ divide the aforesaid tFact or parcel of land into separate lots, with streets to he used in connection there-with; that they have caused a plat of said sub-division of lots to be made, whfoh said nlat is hereto attached as a part here­ .Page 53 ] of, markeu ''PROl>JTIRTY OF W. A. STREE.~ AND F. M. RATLIF'F ON GRUNDY RAVEN HIGffiVAY, LEVISA RIVER ADJOINING OAKWOOD COAL CORPORATION, BUCHANAN CO., VA.," which said plat accurately described all the sub-division of lots of said parcels of land, and gives the courses, distances, lengths and breadths of each of said lots, and the breadths and courses of all the streets established therein. And W<~, the undersigned, do hereby state and declare that the above and hereto attached sub-division of land into lots, as appears on said plat i8 with our free consent, and in accordance with our desires. Rights of way are hereby reserved over and ac.ros8 the aforesaid lots for sewer Jines, water lines, gas lines, and elec.­ tric light and power lines, telephone and telegraph lines. for the benefit of all of the property of W. A. Street and F. M. Ratliff whether laid off into lots or otherwise, and for the ben~fit of the present and future owners of all those lots which have been laid off in the aforesaid p'at and of all the remaining lands owned hy the said \V. A. Street and F. 1L Ratliff. In witnC$S whereof. we have hereunto subscribed our names and affixed our seals this 22nd, day of ,June, 1936. V{. A. 8TREET (REAL) FRANKIE MAE srrREF?r (SK\L) F. lvI. RATLTFF (SEAL) page 54 ] State of Virginia, County of Buchanan, to-wit: I. Elsie L. 8rwe1·~. a Notarv Public in imd for the Coun· zy of Buchanan. in the State of Virginia, clo hereby certify th~t W. A. STREET and FR.ANKIE MAE STREET, hi.s 62 Supreme Court of Appeals of Virg~ia wife, and Jf. M. RATLIFF (unmarried) whose names are signed to the foregoing and hereto annexed writing, bearing ~ate the 22nd day of June, 1936, have each this day acknowl­ edged the same before me in my county aforesaid. My co!llmission expires the 13th day of May, 1939. Given under my hand the 23rd day of June, 1936. 'ELSIE L. SAYERS, Notary Public for ~uchanan County, Va.

Virginia, Buchanan County, to-wit: In the Clerk's Office of the County and State aforesaid the .23rd, day of June, 1936, at 10:00 O'clock·A. M. the fore­ going writing was presented and admittted to record, to­ gether with the annexed certificate of acknowledgment re· corded in Deed Book No. 72, page 470. Teste: A. H. GOF'F, Clerk. By ELSIE L. SAYERS, Deputy Clerk

(B)

THIS DEED, made the 24th day of June, in the ~page 55 ] year of 1936, between W. A . .STREET AND . FRANKIE MAE STREET, his wife, and F. M. RATLIFF, (unmarried) parties of the first part and MIS: SOURI COMPTON, party of the second part. WITNESSETH: THAT for and in consideration of the sum of Two Hundred and Sev~nty-five & No-lCO-Dollars ($275.00) which is cash in hand paid, receipt of which is here­ by acknowledged, the said parties of. the first part do grant, sell and convey all their rights, titles and interest unto the said Missouri Compton Lot No. 29, more particularly describ­ ed as follows: BEGINNING at a §take in the edge of the State High­ way, being corner to Lots Nos. 28 and 29, thence S 43' 02 E 50.25 feet to a stake, being corner to Lots Nos. 29 and 30; thence S 41 30 W lCO feet to a stake in the edge of the street, thence N 43 02 W 50.25 feet to a stake, corner to Lots Nos. 28 and 29, thence N 41 30 E 100 feet to the BEGINNING, as shown on plat of ''PROPERTY OF W. A. STREET A~_D Buchanan Coal Co. vs. W. A. Street 63

F ..M. RATLIFF ON GRUNDY RAVEN HIGHWAY, LE­ VISA RIVER, ADJOINING OAKWOOD COAL CORPO­ RATION, BUCHANAN CO. VA..", dated June 22, 1936, with certificate by parties of the first part, which said certificate has been admitted to reeord in the Office of the Clerk of the Circuit Court of Buchanan County, Virginia, and which plat is found of record in Plat Book No. 1, page 288, reference to which said plat and certificate is here made for more partic­ ular descriptions of the aforesaid lot or parcel of land, and being a part of the James M. Ratliff estate, situate near the _· mouth of Bridge Branch on Levisa River, in Buch- pag·e 56 ] Buchanan County, Virginia. , There is excepted and reserved from the operation of this conveyance whatever mineral rights and privileges that have heretofore been conveyed. This is hereby reserved from this conveyance right of way over and across the aforesaid lots for sewer lines, water lines, gas lines, and telephone and electric lines for the bene­ fit of all the other lots included on the aforesaid plat of lots, and for the benefit of all the present and future owners of all of the lots which have been laid off on said plat, as well as their successors and assigns, and for the benefit of the re­ maining lands owned by W. A. Street and F. M. Ratliff not laid off into lots, but adjoining the said plat of lots. Witness the following signatures and seals. W. A. STREET (SEAL) FRANKIE MAE STREET (SEAL) F. M. RATLIFF (SEAL) Revenue stamp 50 cents. State of Virginia, County of Buchanan, to-wit: I, Elsie L. Sayers, a Notary Public in and for the Coun­ ty of Buchanan, in the State of Virginia, do certify that W. A. Street and Frankie Mae Street, his wife, and F. l\L Ratliff (unmarried) whose names are signed to the foregoing and hereto annexed writing, bearing date on the 24th day of June, 1936, have each this day aclmowledged the same before me in my county aforesaid. . My commission expires on the 13th day of May, 1939. ·Given under my hand this 24th day of June, 1936. ELSIE L. SAYERS, Notary Public for Buchanan County, Va. 64 Supreme Court of Appeals of Virginia

Virginia, Buchanan County, to-wit: In the Clerk's Office of the County and State aforesaid the 24th day of June, 1936, at 2:30 o'c1 ock P. M. the forego­ ing writing was presented and admitted to record, together with the annexed certificate of aclrnowledgmerit recorded in Deed Book No. 72, page 476. Teste: A. I-I. GOFF, Clerk. By ELSIE L. SAYERS. Deputy Clerk.

page 58 ] (b-1)

THIS DEED, made and entered into this the 30th day of May, 1938, by and between MISSOURI COMPTON, WIDo,v, party of the first part, and CLARENCE E. DYE, Party of the second part, both of Buchanan County, Va. WITNESS ETH: That for and in consideration of the exchange of property and the further consideration of $1,000 (One,..Thousand Dollars), which is to be paid in the following manner: $500.Q) cash in hand paid and the additional sum of $50~.00 to be paid in two payments, the first of which is to be in the sum of $200.00 payable in twelve months from the date hereof, and the second payment being in the sum of $300.00 payable in two years from the date hereof, each pay­ ment evidenced by negotiable note bearing interest at the rate of 6% and to secure payment thereof, a vendor's lien is here­ by retained by the party of the first part. for which considera­ tion the sai~ party of the first part does grant, bargain, se1I and convey unto the said ff arence E. Dye, that certain par­ cel of ]and described as lot No. 29, as shown on the plat of "PROPERTY OF W. A. STREET AND F. 1'L RATLIFF ON GRUNDY RAVEN HIGHWAY ON LEVIS~ RIVER, ADJOINING OAKWOOD SMOKELESS COAL CORPO­ RATION, BUCHANAN COUNTY, YIRGINIA", and more particularly described as f oHows : BEGINNING AT fl. r.take in the edge of the State Hig·h­ way, being the corner to lot No. 28, thence south 43102 E 50.2"5 feet to a stake, being a corner t,, lot No. 30, thence S 41 30 ·w 100 feet to a stake in the edge of the street, thence N 43 0:l \V 50.25 feet t.o a stake. ::i corner to lot No. 28 and thence N tH ·~;J E 100 feet to the BEGINNING.

I" I Buchanan Coal Co. vs. W. A. Street 65

Said property is more accurately described by the page 59 ] above described plat which is recorded in the Cir- cuit Court Clerk's Office in Plat Book No. 1, page 288:, and being a part of the James M. Ratliff estate, situate near the mouth of Bridg·e Branch of Levisa River, in Buchan­ an County, Virg'inia. There is excepted and reserved from the operation of · this conveyance such mineral rights and privileges and such other easements as have been conveyed to other parties or reserved in the conveyance to Missouri Compton as stated out in the deed to her dated June 4th, 1936, and recorded in the Circuit Court Clerk's Office of Buchanan County, Vir­ ginia, .June 24, 1936, in Deed Book 72, page 436. Said party of the first part does hereby warrant and cov· enant that she will save free from loss said party of the sec­ ond part by reason of liability of the said party of the sec­ ond part to the Red Jacket Coal Corporation by reason of the Cloud on the title to the portion of said lot within the inter· lock c1aim between the Red Jacket Coal Corporation by its predecessors to title. Said party of the first part covenants that she will war­ rant generally said property hereby conveyed; that she has the right to convey the same to the said Clarence E. Dye, free from all encumbrances; that she has done no act to encumber the same, and that she will execute such further assurances of the same as may be requisite. ·witness the following signatures and seals: MISSOURI COMPTON (SEAL) Revenue stamp $1.00. page 60 ] State of Virginia, County of Buchanan, to-wit: I, Eugene B. Breeding, a Notary Public in and for the County of Buchanan and State aforesaid, do certify that l\fo;. souri Compton whose -name is signed to the foregoing· and hereto annexed writing bearing date of the 30th day of .May 1938, has this day persouary appeared before me and ac­ knowledged the same before me in my County aforesaid My commission expires on the 31'd, day- of May, 1941-. Given under my hand, this the B0th day of May, 1938. EUGENE B. BREEDING, Notary Public

\ 66 S~preme Coui't of Appeals of Virginia

Virginia, Buchanan County, to-wit: In the Clerk's Office of the County and State aforesaid, the 30th day of May, 1938, at 5 :25 o'clock P. M.; the foregoing writing was presented and admitted to record together with the annexed certificate of acknowledgment recorded in Deed Book No. 78, page 195. Teste: A. H. GOFF, Clerk. By .J. L. LOONEY, Deputy Clerk. page 61 ] (c-1)

THIS DEED, made and entered into this the 18th day of September, 1936, by and between WARFIELD STRICKLER AND LE.TITIA. STRICKLER, his wife, parties of the first part, and C.H. LITTON and ...... , parties of the second part. vVITNESSETH: That for and in consideration of the sum of $250.00, of which amount $48.50 is cash in baud paid, eleven notes in the amount of $10.00 each bearing even date with this deed payable to the order of Warfield Strickler and due one, two, three, four, five, six, seven, eight, nine, rnn, eleven months from date, and the further consideration that the parties of the second part have agreed to assume and have assumed the payment of a note in the amount of· $9.2.50, payable to W. A. ~treet and F. M. Ratliff, dated June 24, 1936, and due twelve months from date, the receipt of which is here­ by acknow~edged, the said parties of the first part hereby bargain, sell, grant, and convey unto the parties of the second part all that certain ]ot or parcel of land being Lot No. 32, as shown on plat of ''PROPERTY OF W. A. STRE·ET AND F. M. RATLIFF ON GRUNDY RA VEN HIGH"W AY, LEVISA RIVER AD.TOINTNG OAKWOOD COAL CORPORATION, BUCHANAN COUNTY, VA.", daterl .June 22, 1936, and re­ corded in the Buchanan County Clerk's Office in Plat Book No. 1, pag-e 288, reference to which plat iA here made for r. more pal'ticular description of the aforesaid lot or parcel of land, and being a part of the James M. Ratliff estate, situate near the month of Bride Branch on Levisa River, in Buchan­ an County, Virginia. There is reserved and excepted from this conveyance whatever mineral rights and privileges that have been he1·e· to fore conveyed. l Buchanan Coal Co. vs. W . .A. Street · 67

There is reserved from this conveyance right of page 62 ] way over and across the aforesaid lot for sewer lines, water lines, gas lines and telephone and electric lines for Jhe benefit of all the other lots included on the aforesaid plat of lots, and for the benefit of all the present and future owners of all the lots which have been laid off on said plat, as well as their successors and assigns, and for the benefit of the remaining lands owned by W. A. Street and F. M. Ratliff, not laid off into lots but adjoining the said plat of lots. A vendor's lien is hereby reserved to secure the pay­ ments of the deferred payments mentioned in this deed. The said parties of the first part hereby covenant to and with the parties of the second part that they will warrant specially the title to the property hereby conveyed. Witness the fol~owing signatures and seals. WARFIELD STRICKLER (SE,AL LETITIA STRICKLER (SEAL) Revenue stamp $0.50.

Virginia, Buchanan County, to-wit: I, E. E. Snellenberger, a Notary Public for Buchanan County, do certify that Warfield Strickler and Letitia Strick­ ler, whose names are siITT1ed to the foregoing and hereto an­ nexed deed, bearing date on the 18th day of September, 1936, have each this day acknowledged the same before me in my State and County aforesaid. My commission expires on the 16 day of July, 1946. Given under my hand this the 19th day of September, 1936. E. E. SNELLENBERGER, A Notary Public for Buchanan County, Va. page 63 ] Virginia Buchanan County, to-wit: In the Clerk's Office of the County and State aforesaid, the 5th day of April, 1938, at 4.30 o'clock P. M., the foregoing writing was presented and admitted to record, together with the annexed certific~te of acknowledgment recorded in Deed Book No. 77, page 481. Teste: A. H. GOFF, Olerk. By J. L. LOONEY, Deputy Clerk

..;.:::; -~~;·::.I I Wliiiill 68 Supreme Court of Appeals of Virginia

(c-4)

THIS DEED OF TRUST, made and entered into page 64 ] on this the 21st day of May, 193~, by and between H. D. ,vRIGHT, and MINNIE "WRIGHT, his wife, parties of the first p,:i rt, and II. CLAUDE POBST, TRUS­ TEE party of the second part. WITNESSETH: That for the purpose of securing the debt hereinafter mentiqned, the said parties of the first part hereby grant and convey to the said H. Claude Pobst, Trus­ tee, an undivided one-half interest in and to that certain lot or parcel of land, lying below the Grundy-Raven Highway, in Buchanan County, Virginia, and being part of the land of which James M. Ratliff died, seized and possessed, and being more particularly known and designated as Lot No. 31, as shown on Plat of ''PROPERTY OF vV. A. STRE.ET A.ND F. M. RATLIFF, ON GRUNDY RAVEN HIGH,VAY, LE­ VISA. RIVER, ADJOINING OAKWOOD COAL CORPO­ RATION, BUCHANAN CO .. VA.", with certificate by F. M. Ratliff and ·w. A. Street, which certificate is recorded in the Office of the Clerk of the Circuit Court of Buchanan County, Virginia, and which said plat is also found of record in said Clerk's Office in p· at Book No. 1, page 288, being the same lot or parcel of land conveyed to J. R. Gildersleeve and the said H. D. ·wright by W. A. Street and wife, by deed dated September 3, 1937, and recorded in said Clerk's Office in Deed Book 76, page 110, reference to which said deed and plat is here made for a more particular description of the said land. But this conveyance is in trust, nevertheless, to secure ,J. R. Gildersleeve the payment of the sum of Three Thousand Dollars ( $3,WO.OO), evidenced by note executed by the said IL D. Wright and Minnie ·wright, his wife, payable to the order of the said J. R. Gildersleeve, bearing even page 65 ] date with this deed of trust, and payable ninet~· (90) days after date, with interest from date. This deed of trust is intended to secure and does hereby secure the renewal or renewals of the aforesa.1.d note, in whole or in part, until the above mentioned sum of money, together with the interest thereon, shall have been fully paid. It is further understood and agreed that this deed of trust secures the owner of the holder of the aforesaid note, in whole or any renewal or renewals thereof, until said sum of money has been Buchanan Coal Co. vs. W. A. Street 69

paid in full, whether owned by the said J. R. Gildersleeve or ·his assigns. It is further understood and agreed that if the said J. R. Gildersleeve desires the building on the property hereby con­ veyed insured, then, he is given the right to procure such in­ surance, provided said insurance is taken in some good sol­ vent fire insurance company, and insurance policy written thereon shall contain a loss payable clause, payable to the afore said H. D. Wright ai:id the afore said Trustee, as their interest may appear at the time of fire. If on being so re­ quested, the said H. D. vVright fails or refuses to procure such insurance, then, the said J. R. Gildersleeve is hereby authorized and empowered to do so, and any premiums which . he may ·pay for said insurance, together with any taxes, levies or assessments, which may become due and owing on the prop­ erty hereby conveyed, and which the said J. R. Gildersleeve shall pay, shall, ipso facto, be secured by this deed of trust, and all of the said payments shall bear interest from the date of such payments. If the said paTties of the first part shall fail to page 66 ] pay said note, or any renewal or renewals thereof, in who.e or in part, when same shall become due, then, said Trustee, on being requested by the .owner or the holder of said note, or of any renewal or renewals thereof, in whole or in part, shall ·proceed to sell the ·property hereinbe­ fore conveyed at public auction, to the highest bidder, at the front door of the Court House of Buchanan ·County, Vir­ ginia, for cash in hand on day of sale, after said sale has been advertised for at least thirty (30) days by typewitten notices, one copy posted at the front .door of the Court House of Buch­ anan County, Vir1,rinia, one copy posted on the property to be sold, and at least three other copies posted at three other pub· lie places in Buchanan County, Virginia. and within five miles of the property to he sold, the proceeds of which sale shall, by said Trustee, he distributed as follows: First: To the paymeut of the cost-of executing this trust, including- the regular statutory commission to said Trustee for making sale.

Second : To the payment of any and all .insurance prem­ iums, taxes, levies, and assessments which ,may have been paid by the said J. R. Gildersleeve as hereinbefore agreed. 70 Supreme Court of Appeals of Virginia

Third: To the payment of the debt secured by this deed of trust, together with interest thereon. Fourth: The residue, if any, shall be paid to the said H. D. Wright, or his assigns. Witness the following signatures and seals. H. D. WRIGHT (SEAL) MINNIE w·RIGHT (SEAL) page 67 ] State of Virginia, County of Buchanan, to-wit: I, Josephine Perkins, a Notary Public in and for the Coun­ ty of Buchanan, in the State of Virginia, do hereby certify that H. D. Wright, and Minnie Wright, his wife, whose names are signed to the foregoing and he'reto annexed deed, bearing date the 21st day of May, 1938, have each this day acknowl· edged the same before me in my County aforesaid. My commission expires the 4 day of January, 1941. Given under my hand, this the 21 day of May, 1938. JOSEPHINE PERKINS, Notary Public for Buchanan County, Va.

Virginia. Buchanan County, to-wit: In the Clerk's Office of the County and State aforesaid, the 21st day of May, 1938, at 1 :00 o'clock P. M., the fore­ going writing was presented and admitted to record, together with the annexed- certificate of acknowledgment recorded in Trust Deed Book No. 6, page 27. 'reste: A. H. GOFF, Clerk. By ,J. L. LOONEY, Deputy Clerk. page 68 3 ( e-6)

TIDS DEED OF TRUST. made anrl entered into thii::; the 22 dav of M~rch. 1938. hv and behveen S ..T. ~IDLLINS AND MARTHA MULLINS. J,i~ wife. mnties of the first nart, and H. CLAUDE POBST TR.US'rEE. n~rty of the second nart. WITNESSETH: That for and in consideration of the snm of One Dolln.r ($-1 0()). cash in hand paid. the said pa·rties of the first part hereby grant and convey unto the party ot Buchanan Coal Co. vs. ,v. A. Street .71 the second part, his successors, or assigns, the following real estate, situate near the town of Red Jacket Coal Corporation, on the waters of Levisa River, in Buchanan County, Virginia, and more particularly described as follows: BEING LOT NO. 33, and lying on South Side of Grundy­ Raven Highway, and is the same lot which was sold to War­ field Strickler June 24th, 1936, and repurchased by W. A. Street, September 2nd. 1937. This lot fronts State Highway and is bounded by Lot No. 34 on E Lot 32 Was shown on plat of "PROPERTY .OF W. A. STREET AND F. M. RATLIFF ON GRUNDY RAVEN HIGffWAY, UEVISA RIVER, AD­ JOINING OAKWOOD COAL CORPORATION, BUCHAN­ AN COUNTY, VIRGINIA," dated June .22nd, 1936, with cer­ tificate by parties of the first part, which said certificate has been admitted to record in the office of the Clerk of the Cir­ cuit Court of Buchanan County, Virginia, and which Plat is found of record in Plat Book No . .1, page 288, reference to which said plat and certificate is here made for more particu­ lar descriptions of the aforesaid lot or parcel of land, and be­ ing a part of the James M. Ratliff estate, situate near the mouth of Bridge Branch on Levisa River, in Buchanan County Virginia, and being the same lot conveyed to S. J. page 69 ] Mullins from W. A . .Street and Frankie Mae Street his ,vife, by deed dated the 17th day of September, 1937, and recorded in the office of the Clerk of the Circuit Court of Buchanan County, Virginia, in Deed Book No. 76, page 155. The parties of the first part ·hereby covenant that they will warrant. generally the title to the re~l estate herein de~­ cribed, and that they wrl execute all such other and further as­ surances as mav be requisite. IN TRUST NEVERTHELESS, to secure unto Mingo Lime & Lumber Company, a corporation, indebtedness ag-­ greg·ating Two Thousanrl One Hundred Fortv-two and 40/~00 Dollars ($2142.40). evidenced by note dated the 1st day of March. 19-38. n:,yable in equal instalments of Seventy-Five and No/1<'" Dollars ($75 00) the first monthlv 1nstahneni: of $75.03 falling due on the 15th day of :March. 1938, and future instalmentR fHllinir nue 011 tl1e 15th dav of eacl1 month thereaf­ ter, until all other instalments are paid, said note evidencing said indebtedness in form and in the sum of $2142.40 and thiR deed of truP-t slia 111ilrew1se secu-·e nnv renewal or renewals of said note, in whole or in pa.rt, but nothing- herein contained shall be construed as consent to any such renewal or renewals.

·-­ '·- 72 Supreme Court of .Appeals of Virginia

The grantors covenant that they will cause the real estate hereby conveyed to be insured in some good and solvent, incorporated Insurance Company or Companies against dam­ age or destruction by fire to t4e_extent of its full insurable value, and in :at least the sum of Two Thousand One Hundred Forty Two and 40/100 Dollars, (2142.40), the policy or pol­ icies for which insurance shall be delivered to and kept ·by the beneficiary hereunder, and that they will page 70 ] promptly and punctually pay all taxes and other govemmental assessments against said real es­ tate. · In the event .of default under the terms of this para­ graph, the beneficiary may pay taxes or other governmental assessments against said real estate, and take out ·and keep in force Insurance as aforesaid, and any sum or sums paict out by the 'beneficiary to cover such taxes and or insurances shall by secured hereby in like manner as the principal debt is secured. In case of default in the payment of any instahu.ent of the indebtedness he·reby secured, or in case of default under the terms of the last preceding paragraph the Trustee, ·acting either in person or by agent or attorney, . shall, at the re­ quest of the beneficiary, proceed to make sale of the said real estate herein described, at the front door of the Court House of Buchanan County, Virginia, but before making sale, he shall advertise the time, terms and place of sale ·for four successive weeks in some newspaper of general circulation in Buchanan County, with a description of the real estate suf­ ficient to identify it. Sale may be made upon terms of cash in hand or otherwise, of the option of the beneficiary. The grantors h~reby waives personal service upon them, ·Or their agents of notice of same, and consent that such sale shaU be made without notice except by pulication, as aforesaid. In the event of sale, the Trustee shall disburse the pro­ ceeds as follows:

First, to the payment of the expenses incident to the exe­ cution of this trust, including a commission of five per centurn to the Trustee ; :pag·e 71 ] Second. to the payment of the debt hereby secured, including any sum or sums paid out by the beneficiary :hero under; and, __ ....--­ /

; i Buchanan Coal Co. vs. W. A. Street 73

Third, the residue, if any, to be paid to the gTantor, his h'3irs or personal representatives. And sale hereunder may be continued from time to time by public announcement, and any delay by the beneficiary hereunder in the enforcement of this lien shall not be con- strued as a waiver of any rights hereby granted. - In addition to the rights hereby granted, the benefici­ ary may, at its option, obtain a judgment or judgments, with­ out waiving the right to sell as her~in provided. The word "beneficiary" as used herein shall include not only the Mingo Lime & Lumber Company, but any holder or holders of the note h~rein described or anY. renewal or part renewal thereof. If the grantors herein, or any subsequent owner of the real estate hereby conveyed, should, during the life of this trust, become a bankrupt, or his or her estate become involved in chancery proceedings as the property of an insolvent debt­ or, then this deed of trust shall be and become enforceable. If the grantors herein, or someone for them, shall well, and truly pay the indebtedness hereby ·secured, thei:i it shall become the duty of the beneficiary, at the request and at the expense of the grantors to release the lien of this Deed of Trust.· ,vitness the following signatures and seals the day and year first a bff\re written.

page 72 ] S. J. MULLINS (SEAL) MARTHA MULLINS (SEAL)

State of Virginia, County of Buchanan, to-wit: I, Fred Shortt, a Notary Public in and for the County of Buchanan, in the State of Virginia, hereby certify that S. J. Mullins and Martha Mullins, his wife, wl10se names are signed to the foreg·oing writing, bearing date on the 22 day of March, 1938, have each this day acknowledged the same he­ fore me in my said County. :M:y commission expires on the 3 day or .January, 1940. Given under my hand this 22 day of March, 1938. FRED SHORTT, Notary Pub!ic for Buchanan County, Va. 74 Supreme Court of Appeals of Virginia

Virginia, Buchanan County, to-wit: In the Clerk's Office of the County and State aforesaid, the 22nd, day of March, 1938, at 2:30 o'clock P. M., the fore­ going writing was presented and admitted to record, together with the annexed certificate of acknowledgment recorded in Trust Deed Book No. 6, page 9. Teste: A. H. GOFF, Clerk. By J. L. LOONEY, Deputy Clerk. .page 73 ] (f-1)

THIS DEED, made the 12 day of June, in the year 1937, between J. D. Dalton & Hattie L. Dalton, his wife, of the fi!·st part, and W. A. Street of the other part. WITNESSE:TH: That in the consideration of the sum of Two Hundred and Fifteen Dollars ($215.00), cash paid in hand, receipt of which is hereby acknowledged, the said par­ ties of the first part do grant, bargain, sell and convey and generally warrant all their rights, titles and interests unto the said lot No. 18 which was purchased from W. A. Street, Frankie Mae Street, his wife, and F. M. Ratliff (unmarried), June 24, 1936, at auction sale, and recorded in Deed Book No. 72, page 486, and inore particularly described as follows, as shown on plat of "\V. A. Street & F. M. Ratliff, property on Grundy Raven Highway, Levisa River, adjoining Oakwood Coal Corporation. Buchanan County, Virgini~, dated June 22. 1936, with certificate by parties of the first part, which said certificate was admitted to record in the office of the Clerk of the Circuit Court of Buchanan Co. Va. and which plat is found of record in p'at book No. 1, page 28~. reference to which said plat and certificate is here made far more par­ ticular descriptions of the aforesatd lot or parcel of land, and being a part of the James M. Ratliff estate situate near the mouth of Bridge Branch on t_he Levisa River in Buchanan County, Vir~inia. There is excepted and reserved from thP. operation o~ this conveyance whatever mineral rights, and other rights, of every kind that has heretofore been con­ veyed. · And they do covenant that will ...... that page 74 ] they have the right to convey the said land to the said W. A. Street, that tl1e said W. A. Street shall Buchanan Coal Co. vs. W. A. Street 75

have quiet possession of said land, free from all encumbran­ ces; that they will execute all such other assurances as may be requisite, and that they have done no act to encumber the same. Witness the following signatures and seals. J. D. DALTON (SEAL) HATTIE L. DALTON (SEAL) Revenue stamp $0.50.

Virginia, Buchanan County, to-wit: I, J. C. Lester, a Notary Public in and for the County aforesaid, in the State of Virginia, do certify _that J. D. Dal­ ton and Hattie L. Dalton, his wife, w.hose names are signed to the foregoing deed, bearing date on the 12 day of June, . 1937, has acknowledged the same before me in my County aforesaid. Given under my hand, this 12 day of June, 1937. My commission expires March 15, 1941. J. C. LESTER, N. P.

Virginia, Buchanan County, to-wit: In the Clerk's Office of the County and State aforesaid, the 17th day of June, 1937, at 3:30 o'cloclcP. M., the fore go­ ing writing was presented an4 admitted to record,, together with .the annexed certificate of acknowledgment recorded in Deed Book No. 75, page 306. Teste: A. H. GOFF, Clerk. By ELSIE L. SAYERS, Deputy Cieri<.

page 75 ] (h-i-1)

• THIS DEED, made and entered into on this the 15th day of July, 1938, by and between vV. A. Street and Frankie Mae Street, his wife, F. M. Ratliff, (unmarried), parties of the first part, and .Judge Vv. Mufins. Widower, party of the sec­ ond part. and Samantha J. Christian, party of the third part. WITNESSIDTH, 'THAT, WHEREAS, by deed dated June 24, 1936, and recorded July 17, 1936, in the office of the Clerk of the Circuit Court of Buchanan County, Virginia, in 76 Supreme Court of Appeals of-Virginia

Deed Book 72, page 561, the said W. A. Street and Frankie Mae Street, his wife, and F. M. Ratliff conveyed to Mrs. A. M. Chrisitan, lots Numbers twenty-seven (27) and twenty. eight (28) as shown on plat of ,v. A. Street and F. M. Ratliff on Grundy Raven Highway, Levisa River, and being the lots hereinafter conveyed; and, WHE·REA.S, by deed dated May 20, 1937, and recorded January 22, 1938, in said Clerk's Office in Deed Book 77, page 131, the said Judge "\V. Mullins, conveyed to the said Mrs. A. M. Christian lot Number twenty-six (26) as shown on said plat, also being one of the lots hereinafter conveyed; and, WHEREAS, Hattie Murins, the wife of the said Judge W. Mullins, signed and acknowledged the last aforesaid deed. but her name is not inserted as one of the party grantors, and · she did not join in granting clause with her said husband, but she is now dead; and, WHEREAS, the said Mrs. A. M. Christian is and was at the time both of said deeds were executed, acknowledged, and delivered the same person as the aforesaid Saman­ page 76 ] tha J. Christian, the name "Mrs. A. M. Chris­ tian'' being inserted as the grantee in each of said deeds by mistake, the initials '' A. l\L'' being the initials of the husband of the said Samantha ,J. Christian; and, "WHEREAS, the parties of the first part desire to exe­ cute this quit claim deed, or deed of correction, covering and curing the above stated errors and failure; NOW, THEREFORE, in consideration of the premises. and in further consideration of the sum of One Dollar ($1.00) cash in hand paid by the said Samantha J. Chrisitan to the said parties of the first pa.rt, the receipt of which is hereby acknowledged, the afqresaid w·. A. Street and Frankie Mae Street, his wife, and F. M. Ratliff, unmarried, parties of th!.: first part hereby grant and convey unto the said Samantha tT. Christian a 11 the rip;ht, title and interest of the parties of the first part in and to those two certain lots or parcels of land situate. lying- and being in Buchanan County, Virgmia; on Levisa River, and being ]mown and designated as Lots Numbers twentv-seven (27) and twenty-eight (28) as shown on plat of "PROPERTY OF W. A. STREET AND F. M. RATLTFF ON GRUNDY RAVEN HIGHWAY. LEVISA RIVER, ADJOINING. OAKWOOD CO.AL CORPORATION BUCHANAN CO .. VA." dated June 22, 1936, with certificate by parties of the first part, which said certificate has been ad- Buchanan Coal Co. vs. W. A. Street 77

mitted to record in the office of the Clerk of the Circuit Court of Buchanan County, Virginia, and which plat is found of record in Plat Book No. 1, page 288, reference to which said plat and certificate is here made for more particular des~ criptions of the aforesaid lot or parcel of land, and being a part of the James M. Ratliff estate, situate near page 77 ] the mouth of Bridge Branch on Levisa River, in Buchanan County, Virginia. And for and in consideration of the sum of One Dol­ lar ($1.00) cash in hand paid, the r~ceipt of which is hereby aclmowJedged, the said Judge W. Mullins, widower, being the said party of the second part. hereby grants and conveys un­ to the said Samantha J. Christian all his, right, title, and 1n­ terest in and to that certain lot or parcel of land, situate, ly­ ing and being in Buchanan County, Virginia, on Levisa Riv­ er, and being lmown and designated as Lot Number twenty­ six (26) as shown on the aforesaid plat. Referencc is here made to the two deeds aforesaid for a more particular description of the aforesaid lots. It is understood and agreed that this is nwrelJJ a quit claim deed and it is made without any warranties whatever. Witness the following signature; and seals. W. A. STREET (SEAL) FRANKIE MAE STREET (SEAL) F. :M:. RATLIFF (SEAL) JUDGE W. MULLINS (SEAL)

State of Virginia, ·Co~nty of Buchanan, to-wit: I, Fred Shortt, a Notary Puh'ic. in and for the County of Buchanan, in the State of Virginia, hereby certify that V.l . .A. Street and Frankie Mae Street, his wife, and F. l\L Rat­ liff, whose names are signed to the foregoing and hereto an­ nexed deed, bearing date the 15th day of July, 1938, have each this day acknowledged the same before me in my county afore­ said. My commission expires the 3rd day of Jan. 1940. Given under my hand this 18th day of ,July, 19·38. FRED SHORTT, Notary Public for Buchanan County Va. · 78 Supreme Court of Appeals of Virginia

State of Virginia, County of Buchanan, to-wit: I, Fred Shortt, a Notary Public in and for the County of Buchanan, in the State of Virginia, do hereby certify that Judge W. Mullins, whose name is signed to the foregoing and hereto annexed deed, bearing date the 15th day of July, 1938, has this day aclmowledged the same before me in my county aforesaid. My commission expires the 3rd day of Jan. 1940. Given under my hand this 18th day of July, 1939. . FRED SHORTT, Notary Public for Buchanan County, Va.

Virginia, Buchanan County, to-wit: In the Clerk's Office of the County and State aforesaid the 22nd day of July, 1938, at 10 :QO o'clock A. M., the fore­ going writing was presented and admitted to record, together with the annexed certificate of acknow~edgment recorded in Deed Book No. 78, page 412. Teste: A. H. GOFF, Clerk. By J. L. LOONEY, Deputy Clerk.

page 79 ] (h-i-2)

THIS DEED OF TRUST, made and entered into on this 21st day of July, 1938, by and between Samantha J. Chris­ tian and A. M. Christian, her husband, parties of the ~ii1 st part, and H. Claude Pobst, Trustee, party of the second part. WITNESSETH: THAT, for the purpose of securing the debt hereinafter mentioned and described, the said par­ ties of the first part hereby grant and convey unto the said H. Claude Pobst, Trustee, those three certain lots or parcels of land situate, lying and being on Levisa River, in Buchan· an Countv. Virginia, and being known anrl desi6rnated as Lot8 Number Twenty-six (26), twenty-seven (27) and twenty-eight (28) as shown on Plat of ''PROPERTY OF W. A. STREET AND F. l\L RATLIFF ON GRUNDY RAVEN HIGHWAY, LEVISA RIVER, ·ADJOINING OAKWOOD COAL CORPO­ RATION, BUCHANAN CO., VA.", dated June 22, 1936, with certificate by W. A. Street and others, which said certificate Buchanan Coal Co. vs._V\7. A. Street . 79 has been admitted to- record in the office of the Clerk of the Circuit co·utt of Buchanan County, Virginia, and which plat is found of record in Plat Book No. 1, page 288, reference to which said plat and certificate is here made for more p~rtic­ ular descriptions of the aforesaid lots or parcels of land, and being a part of the James M. Ratliff estate, situate near the mouth of Bridge Branch, on Levisa River, in Buchanan Coun­ ty, Virginia. BUT THIS CONVEYANCE IS IN TRUST, NEVE,R­ THELESS, to secure to Mingo Lime and Lumber Company, the payment of the sum of three thousand nine hundred fifty. four dollars and thirteen cents ($3, 954.13.) evidenced by note of the said parties of the first part, bearing even date with this deed of trust, payable to the order oi the said page 80 ] Mingo Lime & Lumber Company, at Grundy, Vir- ginia, in installments as follows: Sixty-five dollars and ninety-three cents (65.93) to be paid on the 15th day of August, 1938, ancl sixty-five dollars and ninety three cents ($65.93,) to be paid on the 15th day of Each month thereaf- ter until the above total sum of three thousand nine hundred fifty-four doJars and thirteen cents ($3,954.13), is paid in full, together with interest all of said payments at the rate of six percent ( 6%) per annum from the date of this deed of trust, every payment made upon said debt to be credited first on interest then due, if any, and then upon the principal of any past due installment, and the balance upon other prin­ cipal then due, and interest shall thereupon cease upon the principal so credited to any su~h past due installment. And this deed of trust shall and does secure the payment of the aforesaid total debt with interest as aforesaid, whether evi­ denced by the aforesaid note or by any renewal or renewals thereof in whole or in part. In case any of said payments are not made within thirty days after same have become due and payable, then, at the optfon of the owner or holder of said note, all of the deferred payments on said debt shall immediately become due and payable and. on request of the owner or holder of said note, the aforesaid Trustee shall proceed to sell the aforesaid prop­ erty, or so much thereof as may be necessary to pay the debt secured hereby, which sale shall he made at public auction to the highest bidder at the front door of the Court House of Buchanan County, Virginia. after due advertisement thereof for at least thirty days by typewritten notice, one copy posted 80 Supreme Court of Appeals of Virginia

at the front door of the said Court House, one copy page 81 ] posted on the property to be sold and at least three other copies posted in public place~ in Buchanan County, Virginia, and within five miles of the land to be sold. Said sale shall be made for cash in hand on the day of sale. The proceeds of said sale by the said Trustee shall be distributed as follows: (1) To the payment of the costs and expenses of said sale including commission of five percent (5%) to be paid to the Trustee, for his services. (;2) To the payment of the debt secured 11.ereby, together with interest. (3) The residue, if any, shall be paid to the said Saman­ tha J. Christian, or her assigns. And the said parties of the first part covenant to and with the parties of the second part that they will warrant generally the property hereby conveyed. ,vitness the following signatures and seals. SAMANTHA J. CHRISTIAN (SEAL) A. M. OHRISTIAN (SEAL)

State of Virginia, County of Buchanan, to-wit: I, Fred Shortt, a Notary Pub~ic in and for the County of Buchanan, in the State of Virginia, hereby certifr that Sam­ antha J. Christian, and A. M. Christian, her husband, whose names are· signed to the foregoing and hereto annexed deed, 'Of trust, bearing date the 21st day of July, 1938, have each this day acknowledged the same before me in my County aforesaid. My commission expires the 3rd day of January, 1940 Given under my hand this 21st day of .July, 1938. FRED SHORTT, Notary Public for Buchanan County, Va.

Virginia, Buchanan County, to-wit: In the Clerk's Office of the County and State aforesaid the 22nd day of July, 19'38, at 10:10 o'clock A. M., the fore- Buchanan Coal Co. vs. )V. A. Street 81 -going writing was presented and admitted to record, together with the annexed certificate of acknowledgment recorded in Trust Deed Book No. 6, page 73. Teste: A. H. GOF·F, Clerk. By J. L. LOONEY, Deputy Clerk.

page 83 ] (o-4)

THIS DEED OF TRUST, made and entered into, this November 12th, 1938, by and between OLLIE ROBERTS and JAM~S ROBERTS, her husband, parties of the first part, and F. H. CO~IBS, TRUSTEE, party of the second part. WITNESSETH: That for and in consideration of $1.00 receipt of which is hereby acknowledged, and the fur­ ther consideration of securing the debt hereinafter mentioned, the parties of the first part do hereby bargain, sell, grant, and convey to the party of the second part all that certain lot or parcel of land, lying and being in Buchanan County, Virginia, on Levisa River and being Lot No. 16, as shown on plat showing the sub-division made by W. A. Street and F. M. Ratliff, s·aid plat or blue print being designated as fol­ lows: "PROPERTY OF W. A. STREET AND F. M. RAT­ LIF'F ON GRUNDY RAVEN HIGifWAY, LEVISA RIVER ADJOINING OAKWOOD COAL CORPORATION, BUCH­ ANAN COUNTY, VA.", said plat having been admitted to record in the office of the Clerk of the Circuit Court of Buch­ anan County, Virginia, in P'at Book No. 1, page 288. to which reference is here made for a more complete description of the said lot or parcel of land hereby conveyed, it: being a part of the James M. Ratliff estate. There is excepted and reserved from this conveyance whatever minerals, rights, easements, anrl privileges that have heretofore been sold and conveyed from said lot or pa.reel of land. The parties of the first part hereby further reserve and except all such riths, easements and privi1eges as were re­ served and excepted in the deed from Joshua page 84 ] Grace and wife to Ollie Roberts, dated October 22, 1937. and recorded in the fferk's Office of Buch­ ·.. ,....._ anan Cou~ty, Virginia, in Deed Book No. 76, pag·e 290. 82 Supreme Court of Ap:r.,eals of Virginia

This conveyance is, how·ever, made in trust to secure the PERSINGER SUPPLY COMPANY, a ,vest Virginia, Coi:­ poration, the sum of $870.49, with interest thereon from Oc­ tober 14th, 1938, until paid, which amount so secured is now due and payable and has been since October 14th, 1938. If the parties of the first part should pay off and dis­ charge. the said indebtedness herein secured, then the bene­ ficiary herein shall cause a good and sufficient release of this deed of trust to be made; but if said amount so secured is not paid off and discharged when requested by the bene­ ficiary, the said trustee shall proceed to sell said property. at public auction to the highest bidder, for cash in hand on the day of sale, sufficient to pay said_ indebtedness and the bal­ ance shall be payable and secured in such way, as the said Trustee shall think proper and best. In case of sale hereunder, the same shall be held at the front door of the Court House of Buchanan County, Vir· ginia, after having advertised the time, place, and terms of sale for not , ess than twenty days__ by written or printed no­ tices, one copy posted at the front door of the said Court House, and not less than two other copfos posted in the gen· eral neighborhood of said land to be sole}. In case of sale hereunder the trustee shall be allowed a commission of five per cent for advertising, and holding said sale, and preparing and executing a deed convey­ page 85 ] ing .said property to the purchaser. The parties of the first part hereby agree to keep the buildings and improvements on said lot' insured in some good and reliable insurance company, in an amount suffici­ ent to protect the debt herein secured and all prior debts or liens against said property, if any, and in case they should fail to take out and keep up such insurance, then the bene­ ficiary hereunder shall have the right to take such insur­ ance and any amount paid by it for insurance premiums on said property sha11 be secured in this deed of trust, in addition to the debt hereinabove secured. Parties of the first part hereby covenant that they will warrant specially the title to said property hereby conveyed. Given under our hands and seals, this the day and year first above written. OLLIE ROBERTS (SEAL) JAMES ROBERTS (SEAL) /,

/ Buchanan Coal Co. vs. vV. A. Street 83 · State of West Virginia, County of Mingo, to-wit: I, Dollie E. Reynolds, Notary Public in and for the Coun­ ty and State aforesaid, hereby certify that Ollie Roberts and James Roberts, her husband, whose names are signed to the foregoing writing bearing date November 12th, 1938, have ac­ lmowledged the same before me in my county and state afore­ said. My commission expires on the 1 day of March, 1939. Given under my hand this November 17, 1938. DOLLIE E. REYNOLDS, Notary Public. DOLLIE E. REYNODS, NOTARY PUBLIC MINGO COUNTY, W. VA.

page 86 ] Virginia, Buchanan County, to-wit: In the Clerk's Office of the County and State afore· said, the 1st, day of December, 1938, at 9 ~00 o'clock A. M., the foregoing writing was presented and admitted to record, to­ gether with the annexed certificate of acknowledgment re· corded in Trust Deed Book No. 6, page 124. Teste: A. H. GOFF, Clerk. By J. L. LOONEY, Deputy Clerk.

page 87 ] (s)

THIS RELEASE DEED made and entered into this the 22nd day of May, 1936, by and between T. W. R.:atliff and Ella Ratliff, his wife, parties of the first part, and F. M. Ratliff. and vV. A. Street, parties of the second part, all of Buchan· an County, Virginia. WITNESSETH: THAT, WHEREAS, James M. Rat­ liff died seized of a certain tract of land situate in Buchan­ an County, Virginia, containing· by actual survey 696 acres, and at his death, T. W. Ratliff, one of the grantors herein, ·,....__ inherited a one-fourth part of said tract of land. ....

' \ 84 Supreme Court of Appeals of Virginia

Whereas, on the 18th day of December 1935, T. vV. Rat­ liff and Ella Ratliff, his wife, the said first parties to this d{}ed, for the expressed consideration of $1680.00 and a sale of $10.00 per acre, sold and conveyed to the said second parties hereto, F. · M. Ratliff and W. A. Street, a 14 undivided in­ terest in said tract of land, reserving· in said deed certain right of way, and a vendor's lien for the unpaid purchase price, which said deed is recorded in Deed Book No. 71, at page 373, in the Clerk's Office of Buchanan County, to which reference is hereby made; and, Whereas, said tract of land has, by a bill filed at second October Rules, 19'35, and final decree entered on the 13th day' of l\fay, 1936, in Chancery Order Book No. 9, at page 188, in the Circuit Court of Buchanan County, been partit­ ioned and Lot or parcel No. 1, containing 205 acres, therein assigned to T. vY. Ratliff, without a showing a sale, pendente lite, of his share and interest to the said second partie~ hereto. Now, therefore, in consideration of the premises, page 88 ] and the further consideration of the sum of one dollar in hand paid, the said first parties doth here­ by release, assign, and quit-claim any right, title. or interest~ in and to lot No. 1, of 205 acres, assigned to T. vV. Ratliff, which may have become vested in them by reason of said lot or parcel of land being assigned to him in said partition suit instead of to F. l\L Ratliff and W. A. Street, unto the said second parties hereto; it being the intention of the parties hereto, only, to release from said first parties to the said sec­ ond parties such interest, if any, as may have been vested in said first parties by said partition suit, and none other; and in no way to affect the rights of the parties hereto, as fixed by the deed of December the 18th. 1935, and in no way to affect the vendor's lien retained in said deed. It is further understood that by the acceptance of this deed the said second narties accept lot or parcel N" o. 1. as­ signed to T. W. Ratliff, for their one-fourth interest in said tract of fond; and if the assi~nment to the said T. "\V. Rat. liff, of 205 acres affects tl1e <>onsinera.tion expressed in sa.id deed of December 18th, 1935, they hereby accept such change, and agree to same. Witness our hands and seals, this the 22 day of May, 1936. T. "\V. RATLIFF (SEAL) ELLA RATLIFF (SEAL) Buchaiian Coal Co. vs. ·w. A. Street 85

page 89 ] Buchanan County, to-wit: I, Tom O'Quin, a Notary ;I_:>ublic, in and for the County aforesaid, in the State of Virginia, do certify that T. W. Rat­ liff and Ella Ratliff, his wife, whose names are signed to the writing· above bearing date on the 22nd day of May, 1936, this day acknowledged the same before me, in my county aforesaid. . Given under my hand this the 28 day of May, 1936, My commission expires on the 16 day of Dec., 1939. TOM O'QUIN, N. P.

page 90 ] (h-2)

THIS DEED OF TRUST, JUade this the 8th day of No­ vember, 1938, by and between CLARENCE· DYE AND LENA DYE, his wife, parties of the first part, and H. CLAUDE POBST, TRUSTEE, party of the second part. WITNESSETH: THAT for the purpose of securing the lien hereinafter mentioned, said parties of the first part hereby grant and convey unto the said H. Claude Pobst, Trus­ tee. a part of that certain lot or parcel of land situate, lying and being in the County of Buchanan, in the State of Vir­ ginia, described as Lot Number twenty-nine, ( 29), as show11 on the plat of ''PROPERTY OF W. A. STREET AND F. M. RATLIFF, ON GRUNDY RAVEN HIGHWAY, ON LE­ VISA RIVER, ADJOINING OAinVOOD COAL CORPO· RATION, BUCHANAN COUNTY, VIRGINIA," which plat is recorded in the Clerk's Office of the Circuit Court of Buch­ anan County, Virginia, -in Plat Bo.ok No. 1, page 288~ and be­ ing the same lot conveyed to Cla1·ence E. Dye by Missouri Compton hv deed dated May 30. 1938, and recorded in th,~ aforesaid Clerk'~ Office. Uav 30, 1938. in Deed Book 78, pag.:~ 196, that part of said lot which is conveyed by this deed of trust being more narticularly described as follows, to-wit: BEGINNING in the west Jine of the State Iforhway, Route No. 84 corner of Lot No. 30, as shown on said plat: thence with the lower line of Lot No. 31 south 41 30 west 34 feet to a stake; thence down the river north 43 02 west 25 feet to a f.take; thence north 41 30 east 34 feet to a stake in the western line of said State Highway: thence up said State Highway, with the western line thereof south 43 02 east 25 feet to the BEGINNING.

0 86 Supreme Court of Appeals of Virginia

There are excepted from this conveyance the coal, page 91 ] oil, gas, and minerals and mining rights and privil­ eges and easements owned by others. But this conveyance is in trust never the ·less to secure Mingo Lime and Lumber Company, Incorporated, a corpo­ ration, and its assigns, the payment of the sum of eleven hundred seventy-four dollars and nine cents ($1174.09), pay­ able in 41 consecutive monthly instal'ments of twenty-seven dollars and ninety six cents ($27.96), each, and one monthly installment of twenty-seven dollars and seventy-three cents, ($27.73), on the 15th day of each month, commencing Decem­ ber 15, 1938, which said amount is evidenced by the note of the said Clarence E. Dye, and Lena ])ye, payable to the order of the said Mingo Lime and Lumber Company, Incorporated, which note bears even date with this deed of trust, and is payable in monthly installments as aforesaid, it being pro­ vided in said note that same shall bear interest. after maturity ( whether because of defa ult or otherwise) of the entire amount unpaid, at the rate of six per cent per annum, and further provides that if any installment of the note is not paid when due, the entire amount unpaid shall become due and payable forthwith at the election of the holder of the note without notice, and that if the note shall not be paid when due, whether by acceleration or otherwise, it shall be placed in the hands of an attorney for collection; that t11e makers thereof promise to pay fifteen percent of the amount then due thereon as attorneys fee. And this deed of trust shall, and does secure the page 92 ] payment of said note and of any renewal or re­ newals thereof, in whole or in part, until the afore­ said debt shall be fully paid. The parties of the first part hereby covenant and agree to and with the said party of the second part, its successors and assigns, that they will keep the improvements on the property herein conveyed insured against fire in some good, solvent insurance company, approved by the beneficiary here­ under, for at least three fourths of the va·ue thereof, and will deposit with the beneficia.ry such policy of insurance, with standard loss-payable clause iu favor of the owner and of the beneficiary as their interest may appear at the time of the fire; and parties of the first part further covenant and agree that, in event of their failure to keep~ the property so. insured and the policy so deposited, then the beneficiary hereunder

• I Buchanan Coal Co. vs. "\V. A. Street 87

may, at his option, effect such insurance and pay the prem· iums thereon and the money so paid, with interest thereon from the date of payment, shall become a part of the debt herein secured, and in event of sale, to be paid next afte! the expense of executing this deed of trust; and the amount of such insurance premiums so paid, together with interest there· on fi:om the date of payment, the grantors hereby joint and severally agree and bind themselves to pay to the party so paying·. In case any monthly payment of the debt herein secured is not made within thirty days from the date it becomes due, then, at the request of the owner or holder of said note, or any renewal or renewals thereof, the aforesaid page 93 ] trustee shall proceed to sell the property herein conveyed, at public auction to the highest bidder, at the front door of the Court House of Buchanan County, Virginia, for cash in hand on day of sale, after having duly advertised the time, place, and terms of the sale for at least thirty days by typewritten or printed notice, one copy of which shall be posted at the front door of said Court House, one copy posted on the property to be sold, and at least three other copies posted in public places in Buchanan County, Virgini'a, and within five miles of the prqperty to be sold. The proceeds of the sale shall, by said trustee, be dis· tributed as follows : (1) To the payment of the cost and expense of ma.king said sale, including commission of five percent to the Trustee for making the sale. (,2) To the payment of any taxes thnt may be then due on said property. {3) To the payment of the note and debt secured by this deed of trust, with interest and attorney's fees, if any. ( 4) The residue, if any, shall be paid to the said Clar­ ence Dye, his successors or assigns. The said parties of the first part covenant that they will warrant generally the property hereby eonveyed. Witness the following signatures and seals. CLARENCE DYE (SEAL) LENA DYE (SEAL) 88 Supreme Court of Appeals of Virginia

page 94 ] State of Virginia, County of Buchanan, to-wit: I, Fred Shortt, a Notary Public in and for the County of Buchanan, in the State of Virginia, hereby certify that Clar­ ance Dye and Lena Dye, his wife, whose names are signed to the foregoing and hereto annexed deed of trust, bearing date the 8th day of November, 1938, have each this day aclmowl­ edged the same before me in my County aforesaid. My commission expires the 3rd day of Jan., 1940. Given under my hand this 8th day of Nov. 1938. FRED SHORTT, Notary Public for Buchanan County, Virginia.

Virginia, Buchanan County, to-wit: In the Clerk's Office of the County and State afore said, the 9th day of November, 1938, at 10:00 o'clock A. M., the foregoing writing was presented and admitted to record, to­ gether with the annexed certificate of acknowledgment re­ corded in Trust Deed Book No. 6, page 121. Teste: A. H. GOFF', Clerk. By J. L. LOONEY, Deputy Clerk. page 95]

'rHIS DEED OF ':PRUST, made and ~ntered into this the 24th day of September, 1938, by and between S. J. Chrig­ tian and A. M. Christian. her hu~hand, parties of the first part, and J olm vV. Gillespie, Trustee, party of the second part. WITNESSETH: That for and in consideration of the sum of one ($1.00) Dollars, cash in hand paid by the party of the second part unto the parties of the first part, receipt of which is hereby acknowledged, the parties of the first part barg·ain, seI1, grant, and convey unto the party of the second part, all those three certain lots or parcels of la.1id lying and being in Buchanan County, Virginia, on Levisa River, and being- known. and designated as Lots Nos. 26. 27 and 28. as shown on a nlat of "PROPERTY OF W. A. STREET AND F. M. RATLIFF, ON GRUNDY RAVEN HIGHWAY, LE-

i Buchanan Coal Co. vs. ·w. A. Street 89

VISA RIVER, ADJOINING OAKvVOOD COAL CORPO­ RATION, BUCHANAN CO. VA.", dated June 22, 1936, with certificate by parties of the first pa.rt, which said certificate has been admitted to record in the office of the Clerk of the Circuit Oourt of Buchanan County, Virginia, and which plat is found of record in Plat Book No. 1, page 288, reference to which said plat and certificate is here made for more particu· lar description of the aforesaid lots or parcels of land. IN TRUST, NEVERTHELESS, To secure a certain J!roniissory negotiab1e note dated April, 4, 1938, and due six (6) months after date in the principal sum of Two Thousand ·($2,,000.00) Dollars, payable to the order of J. T. Altizer and Geo. "\V. Day, and H. P. Brittain, and to further secure any renewal or renewals of said note, either in whole or in part, then to further secure J. T. Altizer, Geo. W. Day. pag·e 96 ] and H. P. Brittain, accomodation endorsers on said note. It is expressly understood and agreed by and between the parties hereto that in case default is made in the payment of the above described note, then, the party of the second part, Trustee, shall after due notice in writing from the holder of said note or any endorser thereon, advertise the property herein conveyed, and sell the same according to law. The parties of the first part hereby covenant to and with the party of the second part that they ·will keep the build­ ing on the above described property insured with a reliable insurance company for at least Six Thousand ($6,000.00) Dollars, said insurance policy to contain a standard mort­ gage clause, and that they will pay the taxes on said prop­ erty. The parties of the first part hereby warrant generalJ)' the tit1 e to the property herein conveye_cl Witness the following· signatures and seals. S. ~T. CHRISTIAN (SEAL) A. M. CHRISTIAN (SEAL)

State of Virginia. County of Buchanan, to-wit: I, Mary S. Price, a N ota.ry Public in and for the County of Buchanan in the State of Virginia, hereby certify that S. J. Christian and A. M. Christian, her husband, ,vhose names are sign~d to t~e fore going and hereto annexed deed of trust, 90 Supreme Court of Appeals of Virginia bearing date the 24th day of September, 1938, have each· this day acknowledged the same before me in my County afore- said. · My commission expires the 15th day of November, 1941. Given under my hand this the 15th day of October, 1938. · MARY S. PRJ;CE, Notary Public for Buchanan County, Virginia. page 97 ] Virginia, Buchanan, to-wit: In the Clerk's Office of the County and State aforesaid, the 15th day of October, 1938, at 11 :00 o'clock A. M. the fore· going writing was presented and admitted to record, together with the annexed certificate of acknowledgment recorded in Trust Deed Book No. 6, page 100. Teste: A. H. GOFF, Clerk. By J. L. LOONEY, Deputy Clerk. page 98 ] ( o-5)

THE PERSING~R SUPPLY COMPANY, a corpora­ tion, claims that Ollie Roberts and James Roberts are in­ debted to it for materials furnished in and about the con­ struction of a building in the County of Buchanan, Virginia! in the sum of $870.49, with interest thereon from October 14, 1938, until paid, which sum is now .due and payable, and for which sum of Eight Hundred ~eventy Dollars and forty-nine cents ($870.49) the said PERS~INGER SUPPLY COMPANY claims a lien on the fol!owing described lot and the building thereon, to-wit: Lot No. 16, of the sub-divjsion into lots made by W. A. Street and F. M. Ratliff, the blue print showing said suh· division into lots being designated as follows: '' PROPERTY OF W. A. STREET AND F. M. RATLIFF ON GRUNDY RAVEN HIGHWAY, LEVISA RIVER, ADJOINING OAK· WOOD COAL CORPORATION. BUCHANAN COUNTY, VA.", said plat ha.ving been admitted to record in the offic(! of the Clerk of the Circuit Court of Buchanan County, Vir­ ginia, in P~ at Book No. 1, page 288, reference to which is here made for a more particular description of said lot it be· Buchanan Coal Co. vs. VV. A. Street 91 ing a part of the James M. Ratliff estate.· Said lot is located in Buchanan County, Virginia. This November 12, 1938. THE PERSINGER SUPPLY COMPANY. page 99 ] State of Virginia, County of Buchanan, to-wit: I, Helen Combs, a Notary Public for the County afore­ said, do certify that F. H. Combs, agent for the Persinger Supply Company, a corporation, this day made oath before me in my County aforesaid, that Ollie Roberts and James Roberts are justly indebted to it in the sum of $870.49, for the consideration stated in the foregoing memorandum, and that the same is payable as therein stated. Given under my hand, this November, 1938. HELEN COMBS, Notary Public as afor~said. Virginia, Buchanan County, to-wit: In the Clerk's Office. of the County and State aforesaid, the 14th day of November, 1938, at 10:30 o'clock A. M. the foregoing writing was presented and admitted to record, to­ gether with the annexed certificate of acknowledgment re­ corded in Misce1laneous Lien Book No. 1, page 320. Teste: A. I-I. GOFF, Clerk. By .J. L. LOONEY, Deputy Clerk page 100 ] And the defendants files the following demurrer on April 27, 1939: In the Circuit Court of Buchanan County, Virginia: Buchanan Coal Company, a corporation, ,v. M. Ritter Lum­ ber Company, a corporation, Yukon Pocahontas Coa.l Vorn­ pany, a corporation, Sayers Pocahontas Coal Company, In· corporated, a corporation, Red .Jacket Coal Corporation, fa corporation, · Complainants. vs. DEl\iffiRRER TO BILL W. A. Street, Frankie Mae Street, F. M. Ratliff, Missouri Compton, Clarence E. Dye, Warfield Strickler, Letitia Strick- 92 Supreme Court of Appeals of Virginia

ler, C. H. Litton,. J. R. Gi1dersleeve, H. D. Wright, Minuit~ Wright, H. Claude Pobst, Trustee in deed of trust from H. D. ·wright and wife to secure J. R. Gildersleeve, S. J. Mul· lins, Martha Mullins, H. Claude Pobst, Trustee in deed of trust from S. J. Mullins and wife to secure Mingo Lime and Lumber Co., A. G. Law, B. C. Bucklin Maymie Bucklin, J. D. Dalton, Hattie L. Dalton, J. G. Grace, Levi Mullins, Samantha J. Christian, Mrs. A. M. Christian, Judge W. Mullins, A. M. Christian, Auty Coleman, Ruth Coleman, Bruce Abbitt, Maude Abbitt, Curtis Baldwin, Grace 1fullins, P. F. Herndon, Eva­ lyn Herndon, Bert Keen, Garnett Keen, F. C. Mathews, A. K. Parish, Ivory Killen, Joshua Grace, Bessie Grace, Ollie Roberts, Dave Strunk, James Roberts, F. H. Combs, Trus· tee in deed of trust from 0 1lie and James Roberts to secure Persinger Supply Co., Cleve Willis, Rose Coleman, Georg·o Weddie, Lessie Kinswer, M. ,J. Potter, T. W. Ratliff, Ella Ratliff, Edgar M. Call Henry Call, Caroline Cole Gregory, J. B. Ramey. Lena Dye, H. Claude Pobst. Trustee in deed of trust from C1arence Dye and wife, to secure Mingo Lime & Lumber Co., $1174.09, John "Y{. Gillespie, Trustee, in deed of trust from S. J. Cl1rist.ian and A. M. Christian to secure J. T. Altizer, $2000.00, and also to secure the endorsers, George W. Day and H.P. Brittain, J. T. Altizer, George W. Day, H. P. Brittain, and The Persinger Supply Company, a corpo­ ration. George E. Hall Myrtle Hall, II. Claude Pobst, Trus­ tee in deed of trust from A. l\f. Christian and wife to secure Mingo Lim~ & Lumber Co., and Mingo Lime & Lumber Com­ pany, a corporation, Defendants The said defendants named above come and sa v page 101 ] that the said bill of complaint filed in this caus·~ is not sufficient in law, and state the grounds of demurrer relied upon as follows: (1) That if the said complainants have any cause or grounds of complaint against said defendants, or either or a.ny of said defendants, that they have a plain, complete and adequate remedy at law. · (2) That there is a misjoinder of complainants. (3) That this is a suit to determine, fix, and locate the line between the lands of the complainants and the lands~ of the defendants, the refore, this should be an action as pro­ vided for in Section 5490 of the Code of Virginia.

I Buchanan Coal Co. vs. "\V. A. Street 93

( 4) That the complainants are in no way affected by what was done in the partition suit in which the lands of James :VI. Ratliff were partitioned and divided, and, there­ fore, not entitled to any correction or revision of any of the proceedings in that suit, in this suit. WHEJ_:tEFORE, the defendants pray judgment of this court. as to whether they, or either or any of them, shall be required to make any further or other answer to the said bill of complaint or not. W. A. DAUGHERTY and ROLAND E. CHASE. Attorneys for Defendants.

The following decree was entered July 18, 1939, page 102 ] in Chancery Order Book No. 11, page 228. '' Circuit Court of the County of Buchanan, on Tuesday, the 18th day of July, in the year of our Lord, 1939. PRESENT: The Honorable Alfred A. Skeen, Judge" Buchanan Coal Company, a corporation, W. M:. Ratter Lum­ ber Company, a corporation, Yukon Pocahontas Coal Com­ pany, a corporation, Sayers Pocahontas Coal Company, ln· corporated, a corporation, Red Jacket Coal Corporation, a corporation, Complainants v. () DEC~EE NO. 1 W. A. Street, Frankie Mae Street, F. M. Ratliff, Missouri Compton, Clarence E. Dye, Warfield Strickler, Letitia Strick­ ler C. H. Litton, J. R. Gildersleeve, H. D. ·wright, Minme Wright, H. Claude Pobst. Trustee in deed of trust from H. D. °"Trig·ht and wife to secure ,J. R. Gildersleeve, S. J. Mul­ lins, Martha Mullins, H. c·aude Pohst, Trustee in deed of trust from S. J. Mullins and wife to secure :Mingo Lime am] Lumber Co., A. G. Law, B.. C. Bucklin, Maymie Bucklin, .J. D. Dalton, Hattie L. Dalton, .J. G. Grace, Levi Mullins, Sam­ antha J. Christjan, Mrs. A. M. Christian, .Judge vV. Mullins. A. M. Christian, Auty Coleman, Ruth Coleman, Bruce Abbitt, Maude Abbitt, Curtis Baldwin, Grace Mu1lins, P. F. Herndon, Evalyn Herndon, Bert Keen, Garnett Keen, F'. C. Mathews, A. K. Parish, Ivory Killen .•Joshua Grace, Bessie GracP, Ollie Roberts, Dave Strunk, James Roberts, F. H. Combs, Trustee in deerl of trust from Qllie and James Roberts to se- 94 Supreme Court of Appeals of Virginia

cure Persinger Supply Co., Cleve Willis, Rose Coleman, George Weddie, Lessie Kinswer, M. J. Potter, T. V{. Ratliff, Ella Ratliff, Edgar M. Call, Henry Call, Caroline Cole Greg­ ory, J. B. Ramey, Lena Dye, H. Claude Pobst, Trustee in deed of trust from Clarence Dye and wife to secure Mingo Lime & Lumber Co. $1174.09, John vV. Gillespie, Trustee, in deed of trust from S. J. Christian and A. M. Christian t<> secure J T. Altizer $2000.0J, and also to secure the endorsers, George W. Day and H. P. Brittain, J. T. Altizer, George W. Day, H. P. Brittain, and The Persinger Supply Company, a corpo­ ration, Georg·e E. Hall, Myrtle Hall, H. Claude Pobst, Trus­ tee in deed of trust from A. M. Christian and wife to secure Mingo Lime & Lumber Co., and Mingo Lime & Lumber Com­ pany, a corporation, Defendants This cause came on first to be heard on April page 103 ] 27th. 1939, upon the bill filed in this cause on February 18th, 1939, and which said bill was regu­ larly matured at rules as to each and all of the said defend­ ants thereto. All of the said defendants to said bill appeared by W. A. Daugherty and Roland E. Chase, their attorneys, and asked leave of the court to file their demurrer to said bill, which leave of the court is granted, and the said demur­ rer to said bill with the grounds thereof is accordingly this day filed, to the filing of which the complainants, by counsel objected, in which said demurrer the said complainants join­ ed, and the court took time to consider said demurrer.

The following decree was entered in this cause page 104 ] on July 26, 1939, Chancery Order Book No. 11, page 242. Buchanan Coal Company et a 1 s. v () DECREE NO 2. v\T. A. Street et als. This case coming on to l)e heard on Demurrer to the hill and the Court being advised and of the opinion that the de­ murrer to the bill should be sustained fo the bill insofar as the bill seeks to reform the chancery suit of Edg·ar M. Call vs. Caroline Cole Furen Ratliff and T. W. Ratliff, and over­ ruled in all other respects. · It is, therefore, ordered and adjudged by the Court that the demurrer to the bill be, and same is hereby sustained in­ sofar as the bill seeks to correct alleged mist~kes or reform Buchanan Coal Co. vs. VV. A. Street 95 the chancery suit of Edgar M. Call vs. Caroline Cole, Fu!len Ratliff and T. W. Ratliff in which the surface of the lands of James M. Ratliff, deceased, was partitioned. And it is further ordered and adjudged by the Court that said deml!.r· rer be and same is hereby overruled in all other particulars. To which action of the Court in sustaining the demurrer the complainants except and to the action of the court on over· ruling the demurrer the defendants except.

The following decree was entered in this cause 011 page 105 ] July 25, 1939, in Chancery Order Book No. 11, page 243. Buchanan Coal Company et als Complainants v. () DECREE NO. 3 W. A. Street et a1s Defendants This cause came on this day to he heard on the bill duly filed and matured at rules, former orders and decrees made and entered herein, and the defendants moved the Court for leave to file their joint answer to the bill herein, whlch leave · of the Court is granted .and the defendants thereupon this day filed their ,joint answer and Exhibits therewith to the bill herein, to which answer the complainants replied generally. The Court upon consideration and jnspection of the bill and answer herein being clearly of the opinion, for the reas­ ons stated in writing and now filed and made a part of this decree that the question or issue raised by the bill and ans­ wer is the adjudication of a controversy over adverse claims of title to a specific parcel of land arising over a dispute as to the correct location of boundary lines, and for that reason a 0 Court of Equity is without 5urisdic.tion and that it is now the duty of the Court to transfer this case from the Equity to the Law side of the docket of this Court, and to page 106 ] cause the tria] of the issue so raised by the plead- ings by a jury. It is, thereforr, ordered and ad­ judged by the court, that this case be, and the same is, here­ "by transferrerl to the law docket of t.bis Court and that the issue, as to the correct location of the boundary lines betwee11 the lands owned bv James M. Ratliff :md Henry R. Ratliff be tried by a iury and upon the trial of said iss·ue the com­ plainants shall maintain the affirmative and the defendant8 herein, the negative. To all of which the complainants ex· cept, and this cause is continued. 96 Supreme Court of Appeals of Virginia

The following answer was filed July 27, 1939. In the Circuit Court of Buchanan County, Virginia. Buchanan Coal Company, a corporation, W. M. page 107 J Ritter Lumber Company, a corporation, Yukon Pocahontas Coal Company, a corporation, Sayers Pocahontas Coal Company, Incorporated, a corporation, Red Jacket Coal Corporation, a corporation, Complainants v. () ANSvVER "\V. A. Street, Frankie Mae Street, F. lVI. Ratliff, Missouri Compton, Clarence E. Dye, Warfield Strickler, Letitia Strick­ ler, C. H. Litton, J. R. Gildersleeve, H. D. Wright, Minnie Wright, H. Claude Pobst, Trustee in deed of trust from H. D. Wright and wife to secure J. R. Gildersleeve> S. ,J. Mul­ lins,. Martha Mullins, II.. Claude Pobst, Trustee in deed of trust from S. J. Mullins and wife to secure Mingo Lime and Lumber Co., A. G. Law, B. C Bucklin, Maymie Bucklin, J. D. Dalton, Hattie L. Dalton, J. G. Grace, Levi Mullins, Saman­ tha J. Christian, Mrs. A. M. Christian. Judge ·w. Mullins, A. J\L Christian, Auty Coleman, Ruth Coleman, Bruce Abbitt, Maude Abbitt, Curtis Baldwin, Grace Mullins, P. F. Hern­ don, Evalyn Herndon, Bert Keen, Garnett Keen, F. C. Math­ ews, A. K. Paris, Ivory Killen, Joshua Grace. Bessie Grace, OI1ie Roberts, Dave Strunk, James Roberts, F. H. Combs, Trustee in deed of trust from 011ie and James Roberts to se­ ·cure Persinger Supply Co., Cleve Willis, Rose :coleman, George Weddie, Lessie Kinswer, M ..J. Potter, T. W. Ratliff, Ella Ratliff, Edgar l\L Call Henry Call, Caro1ine Cole Greg­ ory, J. B. Ramey, Lena Dye. H. Claude Pobst, Trustee in deed of trust from Clarence Dye and wife to secure :--Mingo Lime & Lumber Co .. $1174.09, John -W. GiUespie, Trustee in deed of trust from R ,T. Christian and A. M. Christian to se­ cure J. T. Altize_r, $2000.00. and also to secure the endorsers, George ,v. Dav and H. P. Brittain. _.J. T. Altizer, George W. Day, H. P. Brittain, mid The Per~in~pr Sunnl:v Companv. a corporation, Geor~:e E. Hall, .Myrtle Hall. H. Claude Pohst. Trustee in deerl of Trust from A. J\f. Christian a.nd wife to secure Min

It is true that on September 23rd, 1904, the Buchanan Coal and Coke Company, a corporation, undertook to purchase 98 Supreme Court of Appeals of Virginia the minerals, together with certain mining rights, privileges and easements on what is designated as "fee tract No. 27" . from Henry R. Ratliff as appears from the deed from the said Henry R. Ratliff to the said Buchanan Coal and Coke Company, Incorporated, dated the said 23rd day of Septem­ ber, 1904, and recorded in the Clerk's Office of Buchanan County, Virginia, in Deed Book No. 29, at page 124, but these defendants deny that by said attempt at purchase and deed the said Buchanan Coal and Coke Company, Incorporated, and the complainants herein, all or any of them, acquired the title to the whole of the tract of land set out and described in said deed of conveyance, as will hereinafter· more fully ap­ pear. page 110 ] Paragraph Two

It is also true that on the said 23rd day of September, 1904, James M. Ratliff and his wife conveyed to the said Buchanan Coal and Coke Company the minerals, together with certain rights, privileges and easements, underlying and on what is desig'Ilated as "mineral tract No. 100" as appears from the deed from the said James M. Ratliff and wife to the said Buchanan Coal and Coke Company, Incorporated, re­ corded in Deed-Book No. 28. at page 191, in the Clerk's Office of Buchanan County, Virginia.

Paragraph Three

It is also true that 011 the 27th day of December, 1906, one W. M. Cary undertook to purchase from the said Henry R. Rat,liff the surface of what is designated in said Bill as ''fee tract No. 27" as shown by the deed from the said Henry R. Ratliff to the said W. M. Cary dated the 27th day of De­ cember, 1906, and recorded in the Clerk's Office of Buchan­ an County, Virginia, in Deed Book No. 31, at page 534, but defendants deny that by said attempted purchase and con­ veyance the said ,v .. M. Cary acquired title to the whole of the surface tract therein described, and deny that his suc­ cessors in said title by virtue of said deed of conveyance ac­ quired title to the whole of the surface of the tract set out and described in said deed as will hereinafter more fully ap­ pear. Buchanan Coal Co. vs. W. A. Street 99 Paragraph Four

It is true that said "fee tract No. 27" and said "miner­ al tract No. 100'' adjoin each other and that the page 111 ] i common lines as expressed in the deed from Henry R. Ratliff to Buchanan Coal and Coke Company for the minerals underlying said ''fee tract No. 27'' and the deed from the said Henry R. Ratliff to the said W. M. Cary for the surfac~ of said tract and the deed from the said James M. Ratliff and wife to the said Buchanan Coal and Coke Company, Incorporated, for the minerals underlying said "mineral tract No. lQa" are described by the same ob­ jects, courses and distances, said common line being described in the mineral and surface deeds aforesaid from the said Hen­ ry R. Ratliff to the said Buchanan Coal and Coke Company, Incorporated. and to the said W. M. Cary as "Beginning on a small chestnut on the west bank of the public road, corner to James M. Ratliff's land; thence with his line S 51 04 E .2043 feet crossing the public road three times to a large pop­ lar on a hillside, N 77 48 E 1018 feet to a stake near the foot of the hill, 13.2 feet from a poplar, 8.2 feet from a beech, ·S 33 E 178 feet crossing the public road- to a stake on the north bank of Levisa River," and in the deed from the said James M. Ratliff and wife to the said Buchanan Coal and Coke Com­ pany to the mineral underlying said "fee tract No. 100" said line is described 3:s running from '' a small chestnut below the road, S 51 04 E 2043 feet to a poplar, N 77 48 E 1018 feet to a stake on hillside, 13.2 feet from poplar, 8.2 feet from beech, S 33 E' 178 feet crossing the public road to the beginning.'' But these defendants deny that the common line between the original Henry R. Ratliff ·tract of land and the James M. Rat­ liff original tract of land runs from the chestnut designated in each of said deeds, but to the contra.ry defendants charge and aver tl1at said common line between the said page 112 ] James M. Ratliff land and the said Henry R. Rat- liff lands runs from a. gum and spruce pine, cor­ ner on the bank of a branch, standing several feet befow the designated chestnut nforesaid, and that said common line runs thence from said gum and pine S 56 E 125 poles to a poplar and dogwood. thence N 70 E 76 poles to a white oak and maple near the foot of a hi11, thence S 37 E 10 poles to a beech, pine and white oak. Defendants in this connection would show that on the 12th day of August, 1820, one James Kendall made a survey of 123 acres of land and upon this 100 Supreme Court of Appeals of Virginia

survey a grant was issued by the Commonwealth of Virginia to the said James Kendall on the 31st day of December, 1821, that the beginning corn~r of said 123 acre survey was a small triple chestnut standing on the bank of the Levisa River, that the line of said survey ran with· the meanders of said rivbr up said river to a beech, pine and white oak, and thence N 37 W 10 poles to a white oak and map1e on the side of a ridge . near the foot, thence S 7{J W 76 poles to a dogwood and large poplar, thence N 56 "\V 125 poles to a gum and spruce pine .011 the bank of a br.;mch. Defendants are advised, charge and aver that by mean conveyance one John S. Ratliff, who was the father of the said Henry R. Ratliff, became the owner. of this 123 acre Kendall grant and that after the death of the said John S. Ratliff in the partition of his lands that part of his said lands which included and embraced this 123 acre Kendall trac~. was laid off and a1lotted in said partition to the said Henry R. Ratliff and that in making said partition, instead of following the correct boundary lines of this page 113 ] 123 acres, and while undertaking to follow same the surveyor encroached on the lands of the said James M. Ratliff and ran the lines common to the James M. Ratliff tract and the John S. Ratliff 123 acre tract from a small chestnut at the side of the road at the mouth of the Os­ borne or Bridge Branch up the river on a bearing S 46% E 110 poles to a dogwood and beech, thence S 81 E 76 po 1 es to a white oak and maple and thence S 37 E 10 poles to a spruce pine, beech and white oak on the bank of the river when he should have run said line beginning on a gum and spruce pine near the mouth of t4e Osborne or Bridge Branch and a short distance from the designated chestnut on the reverse of the line of the 123 acre tract of land up said river S 56 E 125 poles to a poplar and dogwood, thence N 70 E 76 poles to a white oak and maple near the foot of the hi11 and thence S 37 E 10 poles to a beech and pine and white oak. Defendants charge and aver that the sa.id line of the said 123 acre tract of land as above described between the lands of the said James M. Ratliff and Henry R11tliff and between the lands of the complainants' .Tames 1\L Ratliff mineral tract is the true and correct boundary line common to and between saiil tracts or parcels of land and mineral. And defendants further charge and aver that when the mineral tract owned by James M. Rafiff was surveyed and the line run from the point designated as a small chestnut be- Buchanan Coal Co. vs. W. it. Street 101

low the road S 51 04 E 2043 feet to a poplar, N 77 48 E 1018 feet to a stake on a hillside, 13.2 feet from poplar, 8.. 2 f~et from beech, S 33 E 178 feet crossing the public road to the be- ginning, said line as so run was run within the page 114 ] boundary owned by the said James M. Ratliff and does not constitute the outside boundary line of the land owned by him and does not constitute the com­ mon or correct boundary line between the lands of the said James M. Raf iff and the lands of the said Henry. R. Ratliff; and that by so running said line the complainants acquired no title either to the surface or minerals to the lands included in the boundary lying between said lines, and defendants deny that the complainants or any of them have any title to the minerals underlying the said strip of land running from the chestnut below the road near the mouth of Bridge Branch, on a bearing of S 31 04 E 2043 feet to a poplar, N 77 48 E 1018 feet to a stake on a hffside 13.2 feet from a poplar, 8.2 feet from a beech, S 33 E 178 feet crossing the public to a stake on the north bank of the Levisa River, S 51 vV 18 feet to a stake in line of 123 acre grant in the name of J arnes Ken­ dall, thence with the line of said 123 acre grant N 37 W 102.7 feet to a maple and white oak on the side of a ridge near the foot. S 70 ·w 76 poles to a dogwood and large poplar, N 56 W 125 poles to a gum and spruce pine on the bank of the Os­ born or Bridge Branch, thence leaving said 123 acre grant N 26 25 E 85.3 feet to said chestnut below the road. And de­ fendants charge and aver that the Jitle to the land embraced in said caHs last aforesaid, both to the surface and minerals, is now vested .in fee simple absolute in the heirs of the said James l\L Ratliff who is now deceased, and ilieir successors in title thereto. Defendants deny that the large poplar mention­ page 115 ] ed in the mineral deed and in the surface deed from Henry R. Ratliff at the end of the 2043 foot line from the chestnut was ever a corner in the btJundary lines of either of the tracts owned by the said Henry R. Rat­ liff or James M. Ratliff, and defendants deny that the beech and dogwood called for next after leaving the chestnut be1 ow the road at Osborn or Bridge Branch w·as ever a corner in the boundary lines between the said .James l\L Ratliff and Henry R. Ratliff. Defendants charge and aver that the said James M. Rat­ liff, being possessed of the fee simple title to the strip of land 102 Supreme Court of Appeals of Virginia. bounded by running the line throug·h said tract beginning at a small chestnut below the road S 31 04 E a::M:3 feet to a pop­ lar, N 77 48 E 1018 feet to a stake on a hillside 13.2 feet from a poplar 8.2 feet from a beech, S 33 E 178 feet crossing the public road to a stake on the north bank of the Levisa River, S 51 W 18 feet to a stake in line of 123 acre grant in the name of James Kendall, thence with the line of said 123 acre grant N 37 W 102.7 feet to a maple and white oak on the side of a ridge near the foot, S 70 W 76 poles to a dogwood and large poplar, N 56 W 125 poles to a gum and spruce pine on the bank of the Osborn or Bridge Branch, thence leaving said 123 acre grant N 26 25 E 85.3 feet to said chestnut below the road, could not and did not divest himse~f of the title to ~aid strip of land by reason of the designation of the poplar re­ ferred to in his deed conveying- the mineral underlying the tract of 702 acres of land described in his deed to the Buch­ anan Coal and Coke Company, Incorporated, and that upon his death the title to the land embraced within said descrip­ tion decended to and became vested in his heirs. page 116 ] Paragraph Five

Defendants are not advised as to whether or not· immedi­ ately after the recordation on March 14th, 1907, of the deed of December 27th, 1906, which is the surface deed to W. 1v.L Cary from Henry R. Ratliff, to what is designated as "tract No. 27", complainants or their .Predecessors in title took pos­ session of any pol'tion of said tract of land ~onveyed in said deed and designated as "tract No. 27" and _therefore neither deny nor admit complainants' possession or the possession of their predecessors in title to portions of said tract, but de­ mand strict proof of same, but defendants do deny that com­ plainants or any of their predecessors in title, including the said Henry R. Ratliff, ever had or exercised any possession in any way or manner over that -part of strip of land em­ braced and included in the deed by the said Henry R. Ratliff to either the mineral or the surface of said tract designated and included by the boundaries running from the said chest­ nut at the mouth of Osborne Branch, S 31 04 E 2043 feet to a poplar, N 77 48 E 1018 feet to a stake on a. hillsjde 13.2 feet from a poplar 8.2 feet fron1 a beech, S 33 E 178 feet cross­ ing the public road to a stake on the north bank of the Levisa River, S 51 vV 18 feet to a stake in line of 123 acre grant in Buchanan Ooal Co. vs. vV. A. Street 103

the name of James Kendall, thence with the line of said 123 acre grant N 37 W 102.7 feet to a maple and white oak on the side of a ridge near the foot, S 70 W 76 po!es to a dogwood and large poplar, N 56 W 125 poles to a gum and spruce pine on the bank of the Osborn or Bridge Branch, thence leaving said 123 acre grant N 26 25 E 85.3 feet to said chestnut below the road. Defendants allege that the land em­ page 117 ] braced in said strip bounded by said calls last aforesaid up until recently was woodland and had never been cleared or used in any manner by anyone, and that during all the time the said James M. Ratliff was living on the tract of land designated and described in the deed from him and his wife to the Buchanan Coal and Coke Com· pany dated the 23rd, day of September, 1904, and upon this tract had large improvements, including his dwelling house, barns and outbuildings, orchards and much of the surface of said tract cleared and in cultivation; that the Buchanan Coal and Coke Company, Incorporated, predecessor in title to the minerals underlying the Henry R. Ratliff tract and also the owner of the minera1 s underlying the James M. Ratliff tract, on the 6th day of July, 1906, in order to perfect its record title to the minerals of the J a.mes M. Ratliff tract filed its petition before R. E. Williams, who was then commissioner for the purpose of setting up and establishing deeds and lost records as provided for in Section 3340 of the Code of Vir· ginia, and in its petition it described the James M. Ratliff tract generally, and after it reached the lines of the John S. · . Ratliff tract on the Bridge or Osborn. Branch, it then desig· nated its lines of the James M. Ratliff tract as binding on the Jines of the John S. Ratliff Tract from the Bridge or -Osborn Branch back to the beginning, described said line as follows : " * * * and with said second row of cliff to the Bridge Branch binding on John S. Ratliff's lines, and with said John S. Rat­ liff's lines back to the Beginning." Defendants say that the call as designated by the Buchanan Coal and Coke Company in its said petition fmd in ifa.; set un deed from Caroline Rat- liff to ,Tames l\L Ratliff, which deed was made page 118 ] sorne time prior to 1885, ran with the .T olrn S. Ratliff line from the Bridge or Osborn Branch to a gum and spruce pine on the _bimk of said branch, thence S 56 E 125 poles to a poplar and dogwood, thence N 70 E 76 poles to a white oak and maple near the foot of a hill, thence S 37 E 10 poles to a beech. pine and white oak, said line being 104 Supreme Court of Appeals of Virginia

then the line of the said J ohnS. Ratliff tract and being then established as the line of the Caroline Ratliff tract, which is the same tract as the James M. Ratliff 702 acre tract desig­ nated in the bill as "mineral tract No. 100" and during all of the time since prior to 1885, Caroline Ratliff and James M. Ratliff had the actual, open, notorious and exclusive poses· sion of said tract of land, the· boundary lines of which extend­ ed to and included the land from the gum and spruce pine on the bank of the Osborn Branch and thence running S 56 E 125 poles to a poplar and dogwood, thence N 70 E 76 po1es to a white oak and maple near the foot of a hill, thence S 37 E 10 poles to a beech, spruce pine and white oak, and at all times since the conveyance from Caroline Ratliff to J &mes M. Ratliff prior to 1885 said line has been recognized by the own­ ers of both the said John S. Ratliff and Caroline Ratliff tracts as the common and true line designating the boundary of said tracts. And defendants deny that complainants or any of their predecessors in title ever had any possession whatever of the strip of la~d in controversy or ever had any posses­ sion of any of the lands designated and described in the deed from Caroline Ratliff to James 1\L Ratliff.

page 119 ] Paragraph Six

Defendants deny that complainants have fee sin1ple or any other title to that part of the fee tract included by the boundary lines beginning on a small chestnut on the west bank of the pub1 ic road, thence S 31 04 E 2043 feet to a pop· lar, N 77 48 E 1018 feet to a stake on a hillside 13.2 feet from a poplar 8.2 feet from a beech, S 33 E 178 feet crossing the public road to a stake on the north bank of the Levisa River, S 51 W 18 feet to a stake in line of 123 acre grant in the name of James Kendall, thence with the line of said 123 acre grant N 37 W 102.7 feet to a maple and white oak on the side of a ridge near the foot S 70 W 76 poles to a dogwood a11d large poplar, N 56 V{ 125 poles to a. gum and spruce pine on the bank of the Osborn or Bridge Branch, thence leaving said 123 acre grant N 26 25 E 85.3 feet to said chestnut below the road, by virtue of the deed from the said Henry R. Ratliff to the Buchanan Coal and Coke Company for the minerals of said "fee tract No. 27", or by virtue of the deed from the said Henry R. Ratliff to the said ·w. M. Cary for the surface of the said designated tract No. 27 or by virtue of the deed from Buchanan Coal Co. vs. vV. A. Street 105

the said W. M. Cary and L. B. Cary to Buchanan Coal and Coke Company, Incorporated, dated June 20th, 1908, and re­ corded in the Clerk's Office of Buchanan County, in Deed Book No. 35, at page 344, or by virtue of a deed from Buch­ anan Coal and Coke Company to ·Fairmont-Buchanan Coal Corporation da.ted March aoth, 1911, recorded in the Clerk's

Office of Buchanan ·County, Virginia, in Deed Book No. 42 1 at page 303, or by virtue of a deed from Fairmont-Buchanan Coal Corporation to Big Vein Pocahontas Com­ page 120 ] pany, Incorporated, dated March 19th, 19,15 re- corded in the Clerk's Office of Buchanan Coun­ ty, Virginia, in Deed Book No. 46, at page 421, or by virtue of a deed from Big Vein Pocahontas Company, a corpora­ tion, to Fidelity Trust Company, dated January 1st, 1915, re­ corded in the Clerk's office of Buchanan County, Virginia, in Deed Book No. 43, at page 203, or by virtue of a deed from T. G. Hobbs, Trustee, to Yukon Pocahontas Coal Company, W. M. Ritter Lumber Company, Buchanan Coal Company and Sayers Pocahontas Coal Company dated July 3rd, 1924, recorded in Buchanan County C'erk's Office in Deed Book No. 58, at page 536-544, or by reason of any possession whiGh complainants or their predecessors in title may have had to any portion of said tract designated as "tract No. 27", and defendants deny that complainants or any of their predeces­ sors in title have ever had any possession, even actual or con­ structive, of that portion of the said fee tract which inter­ locks or conflicts with the James M. Ratliff mineral tract of 702 acres, or as conflicts and interlocks with the tract convey­ ed by Caroline Ratliff to James M. Ratliff by deed dated prior to 1885 and set up and described in the petition of the Buchanan Coal and Coke Company before R. E. WiI1iams, Commissioner, in the year 1906, as appears of record in Buch­ anan County, Clerk's Office in Deed Book No. 32, at page 287, and a copy of said deed as established by the Buchan­ an Coal and Coke Company and of the boundary lines of said tract as established by the said Buchanan Coal and Coke Company, the predecessor i~1 title of the complainants, here­ to, is filed herewith and made a part of this answer, marked as "Exhibit Caroline Ratliff deed to ,Tames l\L Ratliff", and same is prayed to be read, considered and treated page 121 ] as a part of this amended answer as fully and comp1etely as if same were herein again copied in extenso. 106 Supreme Court of Appeals of Virginia

Paragraph Seven

It is true that complainants, as successors in title to the Buchanan Coal and Coke Company or some of them at least, have certain interest and surface rights in the '' mineral tract No. 100", these rights being expressly enumerated and fixed in the deed from James M. Ratliff and wife to the Buch­ anan Coal and Coke Company dated the 23rd day of Septem­ ber, 1904, filed as Exhibit "C" with the bill, but defendants deny that complainants or any of them have any interest, either in the surface or the mineral, or any rights or privileges in or over the surface of that portion of the James M. Ratliff lands inc~uded in the boundary lines beginning on a small chestnut on the west bank of the public road, thence S 31 04 E 2043 feet- to a poplar, N 77 48 E 1018 feet to a stake on a hillside, 13.2 feet from a poplar 8.2 feet from a beech, S 33 E 178 feet crossing the public road to a stake on the north bank of the Levisa River, S 51 W 18 feet to a stake in line of 123 acre grant in the name of James Kendall, thence with the line of said 123 acre grant N 37 vV 102.7 feet to a maple and white oak on the side of a ridge near the foot, _S 70 vV 76 poles to a dogwood and large poplar, N 56 W 1~5 poles to a gum and spruce pine on the bank of the Osborn or Bridge Branch, thence leaving said 123 acre grant N 26 25 E 85;3 page 122 ] feet to said chestnut below the road.

Paragraph Seven and a Half

Defendants would further show that on the strip or par­ cel of land above set out and in controversy. herein the de­ fendants, to-wit: J. B. Ramey, Ivory Killen, James Roberts, Bruce Abbitt, Levi Mullins, Judge Mullins, Stanford Mul­ lins, F. C. Mathews, and A. K. Parish have built sixteen dwelling, business and other houses at a cost of about $35,- 00100 to them, and when they commenced to bui"d and con­ struct these houses and make these improvements upon said strip or parcel of land the complainants by their agents, ser­ vants and representatives thereunto authorized had full Jrnowledged of the intention of these defendants to so build and construct said houses upon said strip or parcel of land, and the said complainants by their said agents, servants and representatives stated to these defendants that as these buildings would be in close proximity to the coal camps of Buchanan Coal Co. vs. W. A. Street 107

the comp~ainants or some of them, they desired and hoped that they would put modern houses and improvements upon said strip of land as same would by reason of its close prox­ imity to the coal camps be advantageous to said camps, and in this way the complainants encourged these defendants in making large outlays of money on the improvements of said strip of land now in controversy and at no time made any complaint or objection to placing said improvements on said land, and defenda~ts now charge and aver that the complain­ ants and each of them by reason thereof are now estopped from denying the defendants' titl~ to the land on which said improvements were placed, which estoppel is plead in bar of the right of the complainants or any of them to page 123 ] now recover the possession of said strip of land from these defendants.

Paragraph Eight

It is true that defendants, F. M. Ratliff and W. A. Street, while claiming to be the owners of the surface of certain por­ tions of "mineral tract No. 100" under ~nd by virtue of u conveyance from one of the heirs of James M. Ratliff, to­ wit: T. W. Ratliff to whom said p,ortion of said surface tract had been assigned by commissioners of your Honor's Court in the parUtion of the estate of the said James M. Ratliff, deceased, on or about the 24th day of July, 1937, did execute and aclmowledge a certain writing confirming certain maps, plats and certain sub-divisions of said surface as therein re­ ferred to, and caused same to be recorded in the Clerk's Of­ fice of Buchanan County. Virginia, on or about the 24th day of July, 1937, a copy of which is filed with comp1ainants' bill, marked '' Ex Pa rte Sub-division Agreement.'' It is also true that they had the plats of said sub-division alsQ recorded in said Clerk's Office, and it is also true that bv: said exnarte sub-divisions and maps and plats aforesaid, the said F. M. Ratliff and W. A. Street attempted to, and did, dedicate cer­ tain ways streets and alleys. as well as· certain easements for 1 sewer lines. ~118. watel'. and elertric power lines, te ephone and telegraph Jines, and other things, to the variouR partieR therein mentioned and referred to, and the streets, alleys, etc., to the use of the general public, and it is also true that : the said F. M. Ratliff, Vv. A. Street and Frankie Street, bis .wife, so claiming to be the owners of the surface 108 Supreme Court of Appeals of Virginia

page 124 ] of said "mineral tract No. 100", as aforesaid, sell and convey certain lots as shown in said ex parte sub-division and maps, but defendants deny that any of said maps or ex parte sub-divisions or any portion of the sur­ face tract so1d and conveyed by the said F. M. Ratliff, "\V. A. Street and Frankie Street, his wife, cover any part or par­ cel, or include any part or parcel of complainants' '' fee tract No. 27'', and deny that the ex parte sub-divisions of any part or parcel of the surface of said James M. Ratliff lands, or the recording of any such sub-divisions or maps or plats there· of, created any cloud on complainants' title to any portion of complainants' "fee tract No. 27." It is true that the said W. A. Street and wif~, and F. M. Ratliff, under and by vir­ tue of said sub-division and maps and plats aforesaid, pro­ ceeded to sel_l and make conveyances of certain of said lots to the parties set out in Paragraph Eight of Complainants' Bill, but defendants deny that any of said conveyances lie wholly or in part within the exterior boundary line of com­ plainants' said '' fee tract No. 27 ''; deny that any pa.rt of the property or lots described in any of said deeds lies with­ in the boundary lines of said "fee tract No. 27", but charge and aver that each and all of said lots, and each and every portion thereof, lies wholly within the boundary lines of the el ames M. Ratliff 702 acre tract oj: land, and the said lt. M. Biatliff and W. A. Street being the owners· of that part oE the surface of the said James l\L Ratliff 702 acre tract, of land, had the perfect legal right to make and execute each and all of said deeds and to convey the property described in each of said deeds. page 125 l Paragraph Nine

While it is true that the said F. :M. Ratliff and W. A. Street contemplate selling other lots or parcels of the James M. Rafiff surface tract designated and described in the maps, plats and sub-divisions aforesaid, defendants deny that the said F. M. Ratliff,' "\V. A. Street, or any of the other defend­ .ants, contemplate selling or intend to or will sell any lot or parcel of land embraced either wholly or in part ~n the boun­ dary lines of complainants' "Fee tract No. 27'', and denv that any contemp1 ated conveyance by the said F. M. Ratliff, W. A. Street, or any of the other defendants, will create any cloud on the title of. .complainants to any part or parcel of complainants' "fee tract No. 27". Buchanan Coal Co. vs. W. A.. Street 109

Paragraph Ten

Defendants deny that any acts of the said F. l\L Ratliff or W. A. Street, or any one of the defendants, in the convey. ance of portions of their said lands, or in the exercise of the use thereof in any manner, are wrongful or that any of said conveyances conflict with or include any portions of complain­ ants' '' fee tract No. 27,'' and deny that any act of the said F. M. Ratliff or W. A. Street, in connection with said lands, either by conveyance of same or otherwise, has created sucb a host of claimants to said portions of said tract that it is necessary to institute this suit against all of said claimants in order to avoid a_ multiplicity of suits, all based upon the same grounds, and to bring before the Court in one suit all parties participating and interested in and profiting by any act or acts of the said F. M. Ratliff or W. A. Street in selling and conveying any of the lands set out in the Bill page 126 ] and described in Paragraph Eight thereof, and deny that such alleged acts on ~the part 9f F. M. Ratliff or W. A. Street were wrongful, illegal or '!,lnlawfu1 in any manner.

Paragraph Eleven

It is true that portions of the surface of the tract known as "mineral tract No. 100', set out in the Bill, claimed by "\V. A. Street and F. M. Ratliff, were_ acquired by them by con­ veyance from one of the heirs of James M. Ratliff, deceased, viz: T. "\V. Ratliff, and. that the said James l\L Ratliff died intestate, and his lands, of which the land in controversy is a part, was partitioned by a suit filed in the Circuit Court of Buchanan County, Virginia, to which the heirs of the said James M. Ratliff were parties, either complainants or de· fendants, and that in said suit commissioners were appointed, who went upon said . ands, and surveyed same and allotted portions thereotl to each of the heirs of the said James M. Ratliff, deceased, and that this partition of the lands was duly confirmed by a decree entered in said cause in the Cir­ cuit Court of Buchanan County, Virginia, but these defend· ants deny that the commissioners' report of said partition of the lands of the said James l\L Ratliff was incorrectly copi­ ed in the decree; deny that there were various or any mistakes made therein; deny that the person who prepared the de· 110 Supreme Court of Appeals of Virginia cree, in attempting to copy the report of the commh,sioners therein, failed to copy the description of the land therein in­ volved as contained in said report, and deny that by mistake the one preparing said decree left out certain .page 127 ] courses and distances describing the land at- tempted to be partitioned; deny that among other vital mistakes in copying the said report into the decree, there was omitted from the decree an entire call in the said commissioners' original report of partition, viz: '' Thence N 4 deg. 30 min. E 165 ft. to a stake in the road;'' deny that the property bounded by this call was assigned to T. W. Rat­ liff in said partition suit and was by him conveyed or at­ tempted to be conveyed to W. A. Street and F. M. Ratliff; deny that in addition to the foregoing major mistakes, the following minor errors occur in said final decree, as recorded in Deed Book 72, at page 438-444, inclusive, that is to say, they deny that (1) in lot No. 1, call No. 2 "N 41 25 W 395.3 feet'' appears in the report of the commissioners, and that in the final decree this call appears as '' N 41 25 W 395.6 feet;" (2) deny that in Lot No. 1, call No. 3.2, "N 15 44 feet" appears in the report of the commissioners, and that in the final decree this ca1 l appears as "N 154.4 feeti" (3) deny that lot No. 2 call No.1, "S 64 00 E 314 ft." appears in the report of the commissioner, and that in the final decree this call. appears as "S 64 00 E 314.1 feet;" ( 4) deny that in lot No. 4, call No. 28, '' S 59 15 W 96.5 feet to a red oak stump, chestnut, oak, wit. corner to T. Vl. Ratliff 36.6 acres" ap­ pears in the report of the commissioner, and that in the final decree this call appears as "S 59 15 vV 96.5 feet to a red oak stump, chestnut oak, wit. corner to T. W. Ratliff 36.3 acres;'' (5) deny that in Lot No. 4, call No. 44, "N 37 10 W 825 feet to a stake on the bank of a drain (S 23 W 66 ft. from a walnut stump)'', appears in the report of the commig. page 128 ] sioners, and that in the final decree this call appears as "N 37 10 vV 825 feet to a stake on the bank of a drain, S 23 "\V 66 feet to a walnut stump'' Defendants deny that the '' true boundary line'' o-f the James M. Ratliff land here in controversy was designated as beginning with '' a small chestnut below the road S 51 04 E 2043 feet to a poplar. N 77 4S E 1018 feet to a stake on a hrl­ side 13.2 feet from a. poplar, 8.2 feet from a beech." It is true that the James M. Ratliff mineral deed under which com­ plainants claim, in describing the boundary of the James :M. Buchanan Coal Co. vs. W. A. Street 111

Ratliff lands under which he was selling the minerals, reaches the line of the Henry R. Ratliff lands something more tha11 3000 feet from the chestnuts mentioned back in the head of the Osborne or Bridge Branch, and then after reaching the Henry R. Ratliff lines it runs with the Henry R. Ratliff lines to the chestnuts called for at the mouth of Bridge Branch "be­ low the road.'' Then the mineral deed from the chestnuts runs inside the James M. Ratliff lands on a bearing of S 51 04 E 2043 feet to a poplar; thence N 77 48 E 1018 feet to a stake on a hillside, 13.2 feet from poplar, 8.2 feet from beech ; thence S 33 E 178 feet crossing the public road to the begin­ ning. Defendants deny that this line on the bearing given from the chestnuts '' S 51 04 E 2043 feet to a poplar'' is the true boundary ine of the James M. Ratliff lands between those two points, and charge and aver that the true boundary line of the said James M. Ratliff tract from the said chestnuts be­ low the road at the mouth of Osborne or Bridge Branch, as established in the partition of the John S. Ratliff lands, runs from said chestnuts on a bearing S 46% E llG page 129 ] poles to a dogwood and beech; it then runs S 81 E 78 poles to a white oak and maple, and thence S 37 E 10 poles to a spruce pine, beech and white oak on the bank of the river, this being the true line of the James M. Rat­ liff lands from the chestnuts below the road at the mouth of Osborne or Bridge Branch to the point cared for on the river bank, as established in said partition of John S. Ratliff's lands, and while it is true that in surveying the Henry R. Ratliff lands, the surveyor used the same calls between the chestnut and the point on the river bank as those used in the James M. Ratliff coal deed. defendants deny that these calls mark the correct boundary line of the Henry R. Ratliff tract known in the Bil1 as "fee tract No ..27," but charge and aver that the true and correct boundary lines ~f the Henry R. Ratliff tract from the chestnuts below the road in the mouth of Osborne or Bridge Branch, as established in the partition of the said John S. Ratliff's lands, runs on the bearing S 461h E 110 poles to a dogwood and beech; thence S 81 E 76 poles to a white oak and maple; thence S 37 E 10 poles to a spruce pine, beech and white oak on the bank of the river, and defendants deny that the commissioners, in making a partition of tl1e lands of the said James M. Ratliff, deceased, ~tterly, or at all, disregarded the boundary Jines of the said James M. Ratliff lands and ran said lines beginning with a 112 Supreme Court of Appeals of Virginia

bunch of small chestnuts at the side of the road in the mouth of Bridge Branch; thence up the river S 46~ E 110 poles to a dogwood and beech, but on the contrary defendants charge and aver that the commissioners followed exactly the title papers describing and bounding the lands of the said Henry R. Ratliff in making said line, and that by so do­ page 13[) J iug_ they did not infringe upon complainants' rights and did not take in any portion of com­ plainants' lands, but correctly located the true boundary lines between the James M. Ratliff and Henry R. Ratliff tracts from these points set out and described in the title papers under which they claimed; according to the partition of John S. Ratliff's lands, deny that in making said partition said lines were erroneously run, and deny that such alleged wrong­ ful inclusion of complainants' land has been continued by deeds made by.the heirs of James M. Ratliff. or anyone else; deny that T. W. Ratliff, F. M. Ratliff or W. A. Street, or any of the other defendants, bas undertaken to include any lands of complainants, or has included any lands of complainants in any sub-division of any portions of the James M. Ratliff lands, or in any dedication to the public use of any streets~ ways or alleys in said lands, or in the sale and conveyance of any part or parcel of the James M. Ratliff tracts. Defendants deny that th.ere we!'e any errors, substantial, major or minor, in the partition of the surface of the lands of James M. Ratliff among his heirs, and deny that by reas­ on of any alleged mistakes and errors in said partition, or by reason of the taking and appropriation to and of the use of any of the title of any of the lands of the said James M. Ratliff by any of the defendants, constitute any fraud upon the rights of the complainants, or any of them, and deny that any grevious or otlier wrong has been done complainants. or is being done complainants by the defendants, or any of them, which entitles comp1 ainants, or any of them, to relief in equity. While it is true that complainants were not pa1·­ page 131 J ties to the suit to partition the lands of ,James M. Ratliff. deceased, and that this partition was made solely between the heirs of the said James M. Ratliff. deceased, defendants deny that any mistake was made in the partition of said lands, or that any wrong was done to the complainants therein, of which they had no knowledge at the time of said partition, and deny that because of or pursuant Buchanan Coal Co. vs. W. A. Street

to said partition, or by reason ·of same, the defendants, W. A. Street and F. M. Ratliff, and their vendees, or any one, or any of them, has ever trespassed upon complainants or ever ex­ ercised acts of ownership upon any of complainants' lands. It is true that when defendants, F. M. Ratliff, W. A. Street and Caroline Cole Gregory, would attempt to offer any of their surface lands for sale, complainants would cause notice, embracing the rights conveyed under the James M. Ratliff deed, to be posted about in one place and .another over the property, and hand same occasionally to prospective pur­ chasers, but defendants charge and aver that this was only done for the purpose of trying to intimidate and hinder the sale of portions of the James M. Ratliff surface tract by com­ plainants, in order to prevent the building of any houses or vil­ lages around and about its operation, and in none of these notices did complainants, or any of them, dispute the true boundary lines of this tract,_ but they only relied upon the James M. Ratliff deed to the Buchanan Coal & Coke Com­ pany filed as Exhibit "C" with the bill as conveying them such rights :as they were by said notices seeking tr, protect, and defendants further charge· and aver that on page 132 ] this disputed strip of land between the chestnuts at the mouth of Osborne Branch and the beech, dogwood and poplar on the hill, various of these defendants have built costly houses and made costly and extensive im­ provements, and at the time they started to build these hous..es and make these improvements the complainants, by their agents and representatives authorized so to act, encouraged defendants, and certain or them, in making these improve­ ments, and stated to them that they wanted them to build good houses on this property because it would enhance the ap­ pearance and va'ue of the company's adjacent property and camps in and about their mines. The complainants, and each of them, by their duly authorized anil acting representatives and agents, stood by and saw the building of these buildings upon the strip of land in controversy, without making any protest whatever or any complaint that said buildings werP. being built upon land~ owned or ~}aimed by all or any of these complainants, and by reason of this conduct the com­ plainants are now, each and all, estopped from asserting title to that portion of these lands upon which these lmildings have been erected and this estopnel is relied upon and plead as a complete defense to .the complainants' right to now claim or seek possession of said lands. 114 Supreme Court of Appeals of Virginia

Paragraph Twelve

Defendants deny that they, or any of them, have main­ tained any public nuisance or are maintaining any public nuisance or intend to maintain any public nuisance upon. any of the property owned and occupied by them, and state that they have no knowledge or information about any 'page 133 ] complai!nt or conversation regarding same be- tween: the supervisors of sanitary conditions for Buchanan County and any of the complainants, and having no knowledge of this subject, they neither admit nor d~ny the same.

Paragraph Thirteen

Defendants here expressly deny each and every allegation contained in complainants' Bill not hereinbefore specifically denied or admitted as true. And now having fully answered the complainants' Bill herein, these def~ndants pray to be hence. dismissed with their reasonab1 e costs by them in this behalf expended. W. A. STREET FRANKIE MAE STREET F. M. RATLIFF MISSOURI COMPTON CLARENCE E. DYE WARFIELD STRICKLER LETITIA STRICKLER C.H. LITTON J. R. GILDERSLEEVE H. D. WRIGHT MINNIE WRIGHT H. CLAUDE POBST, Trustee in deed of trust from H. D. Vv right and wife to secure J. R. Gildersleeve. S. J. MULLINS MARTHA MULLINS H. CLAUDE POBST, Trustee in deed of trust from S. J. Mullins and wife to secure.Mingo Lime and Lum· ber Company A.G. LAW B. 0. BUCKLIN Buchanan Coal Co. vs. W. A. Street 115

MAYMI:m BUCKLIN J.D.DALTON HATTI~ L. DALTON J.G.GRACE LEVI MULLINS SAMANTHA J. CHRISTIAN MRS. A. M. CHRISTIAN JUDGE W. MULLINS A. M. CHRISTIAN AUTY COLEMAN RUTH COLEMAN BRUCE ABBITT MAUDE ABBITT CURTIS BALDWIN GRACE MULLINS P.F.HERNDON EVALYN HERNDON BERT KEEN GARNET KEEN F. C. MATHEWS A. K. PARISH IVORY KILLEN JOSHUA GRACE BESSIE GRACE OLLIE ROBERTS DAVE STRUNK JAMES ROBERTS F. H. COMBS, Trustee in deed of trust from Ollie and James Roberts to secure Persinger Supply Company CLEVE WILLIS ROSE COLEMAN GEORGE WEDDIE LESSIE KINSWER M.• J. POTTER T. W. RATLIFF ELLA RATLIFF EDGAR M. CALL HENRY CALL CAROLINE COLE GREGORY ~T. B. RAMEY LENA DYE 116 Supreme Court of Appeals of Virginia

H. CLAUDE POBST, Trustee in deed of trust from Clarence Dye and wife to secure Mingo Lime & Lumber Com­ pany $117 4.09 JOHN W. GILLESPIE, Trustee in deed of trust from S. J. Christian and A. M. Christian to secure J. T. Al­ tizer, $2000.00, and also to secure the endorsers, George W. Day and H. P. Brittain J. T. ALTIZER GEORGE vV. DAY H. P. BRITTAIN THE PERSINGER SUPPLY COM­ P ANY, A corp. GEORGE E HALL MYRTL:ffi HALL H. CLAUDE POBST, Trustee in deed of trust from A. M. Christian and wife to secure Mingo Lime & Lum- · her Company and MINGO LIME & LUMBER COM­ P ANY, a C_orp. ROLAND E CHASE, W. A. DAUGHERTY, Attorneys for Defendants. page 134-a ] Virginia : In the Circuit Court of Buchanan County. Buchanan Coal Company, et al, Complainants, vs Court's Opinion-7-12-39 W. A. Street, et al, Defendants. The Court has examined the bill and the demurrer arnl also has read defendants' answer. The bill has a two-fold purpose. One is to correct alleged mistakes made in the partition of the James M. Ratliff land among his· heirs. Another is · a bill quia timet as ancilliary thereto, and seeks an injunction to restrain the defendant~ from committing alleged co;ntinuing trespasses. . Buchanan Coal Co. vs. W. A. Street 117

Insofar as the bill_ seeks to reform the Ratliff partition suit, the Court is of opinion that the demurrer should be sus:­ tained. The Court is clearly of opinion that the defendants coulcl not have gotten into that partition suit when it was pending on the docket. If they could not haye. gotten in then, certainly they could not get in now to reform a suit they never had any business. in. Partition suits can only be had amo:p.g joint tenants or tenants- in common. Independent claims of title cannot be adjudicated in suits for partition. While the statute providing for partition of lands pro­ vides that controversies as to title may be settled therein the courts have construed that to mean controversies arising between and among the tenants in common, and it is not broad enough to permit litigation of independent claims to title. The Court.is not certain as to whether the bill on its face is sufficient to show that independent claims of title are in­ volved. The Court is inclined to think tlie bill is good, looking to the bill alone as a bill quia timet. Looking to tlie bi11 and answer. the Court is clearly of the opinion that the question, and only question, is the adjudi­ cation of a controversy over adverse claims of title to the same specific property. While the statute governing the removal of cloud, or clouds, from title, provides for a jury trial, yet under a well decided line of cases in Virginia, when it becomes clear to the Court that the only issue is a controversy as to independent claims of title, a court of equity is ousted of its ·jurisdiction, and when that conc·usion is reached by the Court, it becomes the duty of the Court, or would be the duty of the Court, un· der the laws that once existed, to dismiss the cause, but, un­ der our liberal statute now, it becomes the duty of the Court to transfer this case to the law side of the docket. If equity is without jurisdiction, consent cannot confer jurisdiction. The court having reached the conclusion a court page 134-c ] of equity is without jurisdiction, will exercise · its prerogative and transfer this case to the law side of the docket. The parties will be permitted to amend their pleadings in any ,vay they desire, so as to properly present the issue to be tried by the jury, and the Court will endeavor, by the as- 118 Supreme Court of Appeals of Virginia

sistance of counsel, to specifically set forth in the order, the issue to be submitted for decision. page 135 ] Buchanan Coal Company, a corpora- tion, et als. Complainants vs. () NOTICE W. A. Street, et als. · Defendants In the above styled Chancery Cause, in pursuance of Section 6339 of the Code of Virginia, at the '1lerk 's Office ·of the Circuit Court of Buchanan C'ounty, Virginia, Qn ·Aug­ ust 22, 1939, the attorneys for the complainants will apply to A. H. Goff, Clerk of the said Court, for a transcript of the record and proceedings in the said above styled chancery cause, which was lately pending in the said Court and we herewith submit to you said transcript for your examination and inspection. This August 19. 1939. F. H. COMBS, Attorney for Complainants We hereby accept service of the above notice. ROLAND E. CHASE, Attorney for Defendants

page 136 ] CLERK'S CERTIFICATE

Virginia, Buchanan County, to-wit: I, A.. H. Goff, Clerk of the Circuit Court of Buchanan County, Virginia, do hereby certify that the foregoing is a true and co;rect transcript of the record as abridged and agreed upon, by and between the attorneys representing the complainants and the attorneys representing the defendants in the chancery cause of Buchanan Coal Company, a corpo­ .tation, et als. v. W. A. Street et als. pending in the Circuit Court of Buchanan County, Virginia, as fully and completely ~s the same appears in my office . . I further certify that Roland E. Chase and W. A. Daugh­ erty, attorneys representing the various defendants had legal notice of the making of this transcript on behalf of the com­ plainants, and that it was being for the purpose of presenting same to the Supreme Court of A. ppeals of Virginia, for an appeal, as is shown by their exceptance of service of said Buchanan Coal ·co. vs. W. A. Street 119 notice which appears in the record. Given under my hand this August 25, 19_?9. A~ H. GOFF, Clerk. By J. L. LOONEY, Deputy Clerk. A Copy Teste: J.M. KELLY, Deputy Clerk. 120 Supreme Co11rt of Appeals of Virgin_ia

INDEX TO RECORD -

l'age Petition ...... 1 Record ...... 23 B.i.11 of complaint ...... 23 Stipulation of counsel ...... 42 Exhibit "A" filed with the bill, same being a map ...... Exhibit '' B '', filed with the bill, same being the deed from Henry R. Ratliff and wife to Buchanan Coal & Coke Co. dated September 23, 1904, conveying the coal and minerals and certain easement rights on 368 acres ...... 47 Exhibit" C", filed with the bill, same being the deed fron1 James M. Ratliff and wife to the Buchanan Coal & Coke Co., dated September 23, 1904, conveying coal and mh1 erals and certain easement rights and timber ...... 52 Exhibit "D", filed with the bill. same being a deed fron1 Henry R. Ratliff and wife to W. M. Cary, conveying th'=' surface of said 368 acres ...... 56 Exhibits-various deeds filed with the bill and designated as follows; (a) (l)) (b-1) (c-1) (c-4) (c-6) (f-1) (h-i-1) (h-i-2) (o-4) (s) (B-2) (H-i-3) (o-5), beginning on page 60 Demurrer filed April 27th, 1939 ...... 91 Recree entered July 18th, 1939. being decree No. 1 . . . . 93 Decree No. 2, entered July 26th, 1939 ...... 94 Decree No. 3, entered July 26th, 1939 ...... 95 Answer of the defendants filed July 27th, 1939 ...... 96 The Circuit Court's Opinion ...... 116 Notice of application for transcript of the record ...... 118 Clerk's Certificate ...... 118