Northeast Natural Energy, LLC, NNE Properties, LLC, Pachira Energy, LLC, and Pachira Energy Holdings, LLC v. LT Realty Unlimited, LLC and David Tennant, by and through Deborah Tennant, his guardian and conservator, and Yuri Dmitri Popov v. LT Realty Unlimited, LLC

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
FILED
Spring 2024 Term
July 12, 2024
_____________________ released at 3:00 p.m.
ASHLEY N. DEEM, CHIEF DEPUTY CLERK
INTERMEDIATE COURT OF APPEALS
No. 23-ICA-154 OF WEST VIRGINIA

No. 23-ICA-155
_____________________

NORTHEAST NATURAL ENERGY, LLC, NNE PROPERTIES, LLC, PACHIRA
ENERGY, LLC, AND PACHIRA ENERGY HOLDINGS, LLC,
Defendants Below, Petitioners,

v.

LT REALTY UNLIMITED, LLC,
Plaintiff Below, Respondent.

and

DAVID TENNANT, BY AND THROUGH DEBORAH TENNANT, HIS
GUARDIAN AND CONSERVATOR, AND YURI DMITRI POPOV,
Defendants Below, Petitioners,

v.

LT REALTY UNLIMITED, LLC,
Plaintiff Below, Respondent.

___________________________________________________________

Appeal from the Circuit Court of Monongalia County
Honorable Cindy S. Scott, Judge
Civil Action No. 18-C-494

REVERSED
_________________________________________________________

Submitted: March 13, 2024
Filed: July 12, 2024
Seth P. Hayes, Esq. William J. Leon, Esq.
Dale H. Harrison, Esq. William J. Leon, L.C.
Jackson Kelly PLLC Morgantown, West Virginia
Morgantown, West Virginia Counsel for Respondent

Albert F. Sebok, Esq.
Jackson Kelly PLLC
Charleston, West Virginia
Counsel for Petitioners
Northeast Natural Energy, LLC, and
NNE Properties, LLC

Roger L. Cutright, Esq.
Andrew Cutright, Esq.
Cutright Law, PLLC
Morgantown, West Virginia
Counsel for Petitioners
Pachira Energy, LLC, and
Pachira Energy Holdings, LLC

James A. Walls, Esq.
Matthew P. Heiskell, Esq.
Spilman Thomas & Battle, PLLC
Morgantown, West Virginia
Counsel for Petitioners
David Tennant and Yuri Dmitri Popov

CHIEF JUDGE SCARR delivered the Opinion of the Court.
SCARR, CHIEF JUDGE:

This matter involves two consolidated appeals concerning the ownership

of certain oil and gas interests in Monongalia County, West Virginia. Respondent LT

Realty Unlimited, LLC (“LT Realty”) brought a declaratory judgment action 1 in the

Circuit Court of Monongalia County to determine the ownership of a 2/8 undivided

interest in the oil and gas rights (“subject oil and gas”) underlying a 118-acre tract2 once

owned by George Tennant, grandfather of Petitioners David Tennant and Doug Tennant

(now Yuri Dmitri Popov) (collectively the “Tennant Petitioners”). Petitioners Northeast

Natural Energy, LLC; Pachira Energy, LLC; Pachira Energy Holdings, LLC; NNE

Properties, LLC; David Tennant, and Yuri Popov appeal from an order entered by the

circuit court granting partial summary judgment in favor of LT Realty and denying

Petitioners’ motions for summary judgment. We reverse.

1
In addition to seeking a declaration that it was the owner of the subject oil and
gas interests, LT Realty pursued claims for trespass and slander of title in the trial court
which are not part of this appeal.
2
The surface tract overlying the subject oil and gas is sometimes referenced in
the documents of record as 119 acres. On appeal, the petitioners have referred to this
tract as being 119 acres, while LT Realty has referred to it as being 118 acres. This small
discrepancy does not affect our analysis or result, and for the sake of consistency, we
shall refer to it as a 118-acre tract in this opinion.
1
I. FACTUAL AND PROCEDURAL BACKGROUND

A. Assessment of Interests In George Tennant’s Name

In 1938, when George Tennant died, he possessed a 2/8th interest in the oil

and gas underlying the 118-acre surface tract, being the entire interest comprising the

subject oil and gas; a 3/8th interest in the overlying 118-acre surface estate; and a 3/8th

interest in a 136-acre Sewickley Coal Seam estate (“Sewickley Coal”).3 From 1938

until 1941, the subject oil and gas and the overlying 118-acre surface tract were assessed

in George Tennant’s name as a single assessment, described as follows: “3/8 118 Sur.

O&G Days Run.” Also, from 1938 through 1940, there was a separate assessment in

the name of George Tennant for Sewickley Coal, described as follows: “3/8 136.192

Sew. C.” The parties agree that the subject oil and gas was not entered in the land books

and was not separately assessed for taxes in 1941 or any subsequent year before it was

allegedly acquired by LT Realty in 2015 through a special warranty deed from

Elemental Resources.

3
Most of the Sewickley Coal interest underlies the same surface estate as the
subject oil and gas, with the remaining portion of the Sewickley Coal estate underlying
an adjoining 17-acre tract. Ownership of this coal interest is not disputed on appeal.

2
B. Partition of the Surface Tract Following George Tennant’s Death

In 1940, as part of a partition action among various owners of the subject

oil and gas’s 118-acre surface estate, the entire interest in the 118-acre surface estate

was conveyed to Velma Jewel Chisler, with the subject oil and gas and Sewickley Coal

being expressly excepted and reserved. Subsequently, in 1941 there was one assessment

in the name of Velma Jewel Chisler for “119.171 SUR DAYS RUN,” and another

assessment in the name of George Tennant for “3/8 136.192 Sew. C.”4 There was no

separate assessment for the subject oil and gas placed on the land books in 1941 or any

subsequent tax year up to and including 2015.5 The 1941 land book entry for “119.171

SUR DAYS RUN” in the name of Velma Jewel Chisler assesses the “Land Value” as

$1,300.00, the same amount as the surface land plus oil and gas interest that had been

assessed prior to partition. There is no dispute that this amount was paid by Ms. Chisler.

C. Disposition of George Tennant’s Realty

In 1942, as part of the administration of George Tennant’s estate, the

subject oil and gas and Sewickley Coal interests, formerly possessed by George

4
The 1941 land book strikes George Tennant’s “3/8 118 acres Sur. O&G Days Run”
from the books and notes Chisler as owning “119.171 Sur. Days Run.”
5
In 2016, LT Realty had the disputed oil and gas interest assessed in its name.

3
Tennant, were conveyed to Hazel Tennant, George Tennant’s widow and the Tennant

Petitioners’ grandmother. In 1943, the Sewickley Coal assessment was transferred from

the name of George Tennant to Hazel Tennant and described as “2/8 136.192 SEW. C.

DAYS RUN.”6 Hazel Tennant never had the oil and gas interest entered in her name on

the land books or separately assessed from the surface. In fact, the parties do not dispute

that there was no separate assessment of the subject oil and gas in 1943 or any

subsequent year up to and including 2015. Petitioners maintain, however, that the

subject oil and gas throughout this time was encompassed in the assessment of Velma

Jewel Chisler, described as “119.171 SUR DAYS RUN.”

In 1974, Hazel Tennant (now Hazel Gawthrop) conveyed whatever

interest she might have possessed7 in the subject oil and gas to her son and daughter-in-

law, Karl Tennant and Carolyn Tennant, the parents of the Tennant Petitioners. In 1987,

Karl and Carolyn Tennant divorced, and Karl Tennant was awarded all realty that he

and Carolyn Tennant owned in Clay District, Monongalia County, West Virginia,

including the subject oil and gas and Sewickley Coal. In 2005, Karl Tennant died

6
The 1943 assessment incorrectly refers to the fractional interest in Sewickley
Coal that was transferred to Hazel Tennant as “2/8” rather than “3/8.” This error was
carried forward up to and including the 2015 tax year but does not affect our decision.
7
The parties dispute whether her interest in the subject oil and gas was
automatically forfeited to the State in 1947 for nonentry in the land books.
4
intestate. Prior to Karl Tennant’s death, he never had the subject oil and gas entered on

the land books or separately assessed.

Karl Tennant was survived by his second wife, Wilma J. Tennant, and

three surviving children, Trey Brock Allan Tennant and the two Tennant Petitioners. In

2013, the Tennant Petitioners leased the interest in the subject oil and gas they believed

they had inherited from their father, Karl Tennant, to Petitioners Northeast Natural

Energy and Pachira Energy. In May 2015, Wilma J. Tennant conveyed the interest in

the subject oil and gas she believed she had inherited from Karl Tennant to Petitioners

Northeast Natural Energy and Pachira Energy. Also, in May 2015, Trey Brock Allan

Tennant conveyed the interest in the subject oil and gas he believed he had inherited

from his father, Karl Tennant, to Petitioners Northeast Natural Energy and Pachira

Energy. Subsequently, in June 2015, Petitioners Northeast Natural Energy and Pachira

Energy conveyed a royalty interest in certain oil and gas formations, including the

subject oil and gas, to Petitioners NNE Properties and Pachira Energy Holdings.

D. Issuance of Tax Deed to Shuman, Inc.

In 1992, due to the alleged non-payment of taxes, a tax deed for the

interest in realty identified as “2/8 136.192 Sew C. Days Run,” assessed in the name of

Karl or Carolyn Tennant, was issued to Shuman, Inc. for non-payment of property taxes.
5
In its Order, the circuit court found the subject oil and gas was also conveyed to

Shuman, Inc. (“Shuman”) in this tax deed because the subject oil and gas was never

separately assessed following its severance from the surface. The circuit court did not

address the fact that the land value assessments for the surface estate remained constant

following the severance of the subject oil and gas.

E. Issuance of Tax Deed to Elemental Resources, LLC

In 2010, another tax deed for the realty identified as “2/8 136.192 Sew C

Days Run, Clay District,” assessed in the name of Shuman, was issued to Elemental

Resources, LLC (“Elemental Resources”) for non-payment of property taxes. The

circuit court concluded the subject oil and gas was also conveyed in this Sewickley Coal

tax deed because Shuman, Inc. never had the subject oil and gas separately assessed

apart from the surface estate following the acquisition of the 1992 Sewickley Coal tax

deed. Following Elemental Resources’ acquisition of the 2010 Sewickley Coal tax deed,

it too never had the subject oil and gas separately assessed.

6
F. Special Warranty Deed Issued to LT Realty

In April 2015, Respondent LT Realty contacted Elemental Resources

about purchasing certain Sewickley Coal Seam interests. On April 27, 2015, a

representative of Elemental Resources emailed the sole member of Respondent, stating:

It was a pleasure speaking with you today about our coal
parcels in Monongalia [C]ounty. Attached is a list of coal
properties we have for sale in Monongalia County. Our
asking price is $20 per net acre. If you are interested in taking
everything on the list we would let it go for $15 per net acre.
The one you called about is highlighted in red. If you have
any questions let me know.

(Emphasis added). There is an accompanying spreadsheet attached to this email with

various Sewickley Coal Seam interests identified. The “one” referenced in the email is

highlighted in red and reads: “2/8 136.192 Sew C Days Run.” The “one coal parcel”

Respondent contacted Elemental Resources about is the Sewickley Coal interest

granted to Elemental Resources in the 2015 tax deed. There is no reference or mention

of an oil and gas interest in any correspondence between Respondent and Elemental

Resources.

Three days following the April 27, 2015, email exchange, Elemental

Resources issued a special warranty deed to LT Realty for certain interests described as

follows:

7
All that certain parcel of land, situate in the Clay District, of
Monongalia County, State of West Virginia described as
follows: 2/8 136.192 Sew C Days Run, and being parcel
0400-0731-0000 as shown on tax map 9999, which said map
is filed in the office of the Clerk of the County Commission
of Monongalia County, West Virginia.
Being the same property conveyed to Elemental Resources
LLC from G. Russell Rollyson Jr., Deputy Commissioner of
Delinquent and Nonentered Lands of Monongalia County,
West Virginia, bearing the date of November 4, 2010 and of
record in the Office of the Clerk of the County Commission
of Monongalia County, West Virginia in Deed Book 1423 at
page 854.

The consideration paid in the special warranty deed is the same ($1,021.00 rounded to

the nearest dollar) as the price Elemental Resources offered to sell its Sewickley Coal

interest for in its April 27, 2015, email. LT Realty claims it acquired the subject oil and

gas through this conveyance although an oil and gas interest was not expressly

referenced.

G. Procedural History

On December 28, 2018, LT Realty filed a lawsuit in the Circuit Court of

Monongalia County, West Virginia against four corporations, Northeast Natural Energy,

LLC; NNE Properties, LLC; Pachira Energy, LLC; and Pachira Energy Holdings, LLC.

Among other relief, this action sought to quiet title to a 2/8 undivided interest in the

subject oil and gas. The complaint was subsequently amended to add two indispensable

8
parties, David Tennant, by and through his guardian and conservator, Deborah Tennant,

and Yuri Dmitri Popov.

All parties filed motions for partial summary judgment concerning the

ownership of the disputed 2/8 interest in the subject oil and gas. These motions were

argued on September 28, 2020. On March 17, 2023, the circuit court entered an order

granting LT Realty’s motion for partial summary judgment and denying all the motions

filed by Petitioners. This order held that LT Realty owned the disputed interest in the

subject oil and gas. According to the circuit court, the subject oil and gas interest was

forfeited to the State for nonentry in 1947, five years after it was transferred to Hazel

Tennant. The circuit court concluded that it then passed to Shuman through a tax deed

for the delinquent Sewickley Coal interest.8 It also concluded that when Shuman failed

to pay its taxes on the Sewickley Coal interest, Elemental Resources acquired the oil

and gas interest through another tax deed for the Sewickley Coal interest, and allegedly

passed it on to LT Realty through a special warranty deed, even though no oil and gas

interest was mentioned in that deed. Pursuant to Rule 54(b) of the West Virginia Rules

8
Because we hold that the subject oil and gas did not forfeit to the State in 1947,
we will not address whether the tax deed which identified only the delinquent Sewickley
Coal interest could also convey the subject oil and gas that was allegedly forfeited for
nonentry on the land books.

9
of Civil Procedure, the circuit court certified the March 17, 2023, order as a final order

from which the parties could appeal. Petitioners appeal from this order.

Petitioners Northeast Natural Energy, LLC, NNE Properties, LLC,

Pachira Energy, LLC, and Pachira Energy Holdings, LLC brought appeal No. 23-ICA-

154. Petitioners David Tennant, by and through Deborah Tennant, his guardian and

conservator, and Yuri Dmitri Popov, brought appeal No. 23-ICA-155. These appeals

were consolidated for purposes of consideration and decision.9

II. STANDARD OF REVIEW

The circuit court granted Respondent’s motion for partial summary

judgment as to Respondent’s declaratory judgment cause of action and denied

Petitioners’ respective motions for partial summary judgment. Therefore, this Court’s

review of the circuit court’s decision is de novo. See Findley v. State Farm Mut. Auto.

Ins. Co., 213 W. Va. 80, 89, 576 S.E.2d 807, 816 (2002) (rulings on summary judgment

motions are reviewed de novo); see also Syl. Pt. 3, Cox v. Amick, 195 W. Va. 608, 466

9
Rule 20 oral argument was held in these consolidated appeals on March 13,
2024.

10
S.E.2d 459 (1995) (a circuit court’s entry of a declaratory judgment is reviewed de

novo).

III. DISCUSSION

All Petitioners assert that the circuit court erred when held that LT Realty

owned the subject oil and gas. More specifically, it erred when it failed to find that the

subject oil and gas was presumptively assessed with the surface interest possessed by

Velma Jewel Chisler.10 Because the subject oil and gas was presumptively assessed with

the surface estate, and Ms. Chisler paid her taxes, they argue that it never went non-

entered or unpaid, and thus was never forfeited or sold to the State. Accordingly, they

conclude that it could not be, and was not, subsequently conveyed in a tax deed because

it was never subject to a tax sale. Because we agree with this conclusion, we need not

address the other assignments of error raised by Petitioners.

Although the circuit court recognized that presumptive assessment was
10

asserted by Petitioners, it did not explain if and how this presumption had been
overcome by LT Realty. Petitioners have not requested that this matter be remanded for
findings of fact and conclusions of law specific to this issue, and we conclude that the
record is sufficient as it stands to resolve this issue on appeal, and that it is not necessary
to remand the case to the circuit court for more detailed findings and conclusions. See
Toth v. Bd. of Parks & Recreation Comm’rs, 215 W. Va. 51, 55, 593 S.E.2d 576, 580
(2003).
11
A. LT Realty’s Standing to Argue Forfeiture Through Nonentry

Before addressing the merits of the forfeiture issue, we note that the

Petitioners have questioned the standing of LT Realty to assert that a forfeiture occurred.

According to Petitioners, regardless of whether there was a forfeiture, the special

warranty deed given by Elemental Resources to LT Realty was insufficient to transfer

any interest other than an interest in Sewickley Coal. Therefore, they argue, LT Realty

has no standing to argue about forfeiture.

LT Realty responds that standing was never raised in the circuit court, and

consequently that issue should not be considered on appeal. Furthermore, LT Realty

argues that the special warranty deed was sufficient to convey any interest in the subject

oil and gas which Elemental Resources might have acquired, and that it was necessary

to prove every step in its chain of title in order to prevail.

We note initially that standing was raised in the circuit court (although it

does not appear to have been a major issue),11 and that even if it had not been raised

below, standing is, indeed, a jurisdictional issue which can be considered for the first

Standing was raised in the Memorandum of Law in Support of Defendants
11

Northeast Natural Energy, LLC, and NNE Properties, LLC’s Motion for Summary
Judgment.

12
time on appeal. See Kanawha Cnty Pub. Lib. Bd. v. Bd. of Educ., 231 W. Va. 386, 396,

745 S.E.2d 424, 434 (2013). As a rule, jurisdictional issues must be decided before

issues going to the merits, but in this case, the alleged jurisdictional issue (standing),

and the merits of the case (ownership), overlap. If LT Realty had a colorable ownership

interest, and we conclude that it did under the circumstances of this case, then it had

standing to address the forfeiture issue.12 Having resolved the standing issue in favor of

LT Realty, we now turn to the merits of the forfeiture issue.

B. LT Realty Has Not Overcome the Presumption and Established Its Claim of
Title

The circuit court found that the 2/8 interest in the subject oil and gas was

forfeited to the State in 1947, five years after the subject oil and gas was conveyed to

Hazel Tennant, because she did not enter the subject oil and gas estate into the assessor’s

land book and taxes were not paid on the same. Prior to July 1, 1994, real property

12
See State ex rel. Leung v. Sanders, 213 W. Va. 569, 580, 584 S.E.2d 203, 214
(2003) (Albright, J., concurring in part, dissenting in part) (“[Standing is] ordinarily
held to have been met when a complainant makes a colorable claim of direct injury
he… is likely to suffer”) (internal quotation marks omitted) (quoting Malerba v. Cessna
Aircraft Co., 210 Conn. 189, 554 A.2d 287 (1989)); 240 GA, LLC v. Greenwich Harbor
View Assn., Inc., FSTCV216053369S, 2023 WL 3193709, at *2 (Conn. Sup. Ct. April
26, 2023) (“standing only requires a colorable claim, not proof on the merits, sufficient
to prevail at trial”); 37 C.J.S. Forfeitures § 54, Westlaw (database updated May 2024)
(“For purposes of establishing constitutional standing in a forfeiture proceeding, a
claimant must assert a ‘colorable claim,’ that is, a claim which is not frivolous.”).

13
would be automatically forfeited to the State without court proceedings when it was not

entered into the assessor’s land books and taxes were not paid for five years. This

forfeiture process was mandated by both our constitution13 and statutes.14

Effective July 1, 1994, the West Virginia Legislature amended and

reenacted portions of the West Virginia Code governing the sale of forfeited and

delinquent lands. The five (5) year duty for landowners to enter property into land books

13
Prior to its repeal, effective July 1, 1993, Article XIII §6 of the West Virginia
Constitution read as follows:

It shall be the duty of every owner of land, or of an undivided interest
therein, to have such land, or such undivided interest therein, entered on
the land books of the county in which it, or a part of it, is situated, and to
cause himself to be charged with taxes legally levied thereon and pay the
same. When, for any five successive years, the owner of any tract of land,
or undivided interest therein, shall not have been charged on such land
books with state, county and district taxes thereon, then, by operation
hereof, the land, or undivided interest therein, shall be forfeited, and title
vested in the State...

14
Prior to its amendment reenactment, effective July 1, 1994, West Virginia Code
§ 11A-4-2 read as follows regarding the forfeiture of lands for nonentry:

It is the duty of each owner of land to have his land entered for taxation
on the land book of the appropriate county, and to have himself charged
with the taxes due thereon. Land which for any five successive years shall
not have been so entered and charged, shall by operation of law, without
any proceedings therefor, be forfeited to the state as provided in section
six, article thirteen of the Constitution, and shall thereafter be subject to
transfer or sale….

14
and pay taxes remained. However, the forfeiture language was abrogated. West Virginia

Code § 11A-3-37 (1994) was amended to read as follows:

It is the duty of the owner of land to have his land entered
for taxation on the landbooks of the appropriate county, have
himself charged with the taxes due thereon, and pay the
same. Land which, for any five successive years, shall not
have been so entered and charged shall, without any
proceedings therefor, be subject to the authority and
control of the auditor and such nonentered lands shall
thereafter be subject to transfer or sale under the
provisions of this article relating to the auditor's
disposition of lands certified to the auditor pursuant to
section eight thereof.

(Emphasis added).15 The question presented for our review is whether the subject oil

and gas was automatically forfeited to the State before the statutory and constitutional

changes in the early 1990s.

15
The relevant language in Article XIII §6 of the West Virginia Constitution was
also abrogated. The constitutional and statutory changes were made because automatic
forfeiture without court proceedings was deemed to violate the federal constitution. See
Robert Louis Shuman, et al., The Amended and Reenacted Delinquent and Nonentered
Land Statutes—The Title Examination Ramifications, 98 W.Va. L. Rev. 537, 546 (1996).
These amendments were in response to litigation in another state regarding a similar
statute, see Mennonite Bd. of Missions v. Adams, 462 U.S. 791 (1983), and an article
published in the West Virginia Law Review. See John W. Fisher, II, Forfeited and
Delinquent Lands-The Unresolved Constitutional Issue, 89 W. Va. L. Rev. 961 (1987).
No decision from the Supreme Court of Appeals of West Virginia specifically held that
automatic forfeiture without due process was unconstitutional.
15
Even before the law was changed, forfeiture for nonentry on the land

books was not favored. As the Supreme Court of Appeals of West Virginia recognized

in Pearson v. Dodd, 159 W. Va. 254, 261, 221 S.E.2d 171, 176 (1975), overruled on

other grounds, Syl. Pt. 3, Lilly v. Duke, 180 W. Va. 228, 376 S.E.2d 122 (1988),

forfeiture for nonentry was “a harsh, even dreadful, remedy,” which “courts generally

disfavor,” and never apply unless “the law clearly warrants.” Consequently, to avoid

forfeiture, when possible, courts recognized a presumption against forfeiture. Id; see

also Syl. Pt. 7, White Flame Coal Co. v. Burgess, 86 W. Va. 16, 102 S.E. 690 (1920)

(“There is a presumption of entry of lands for taxation and payment of the taxes thereon,

in favor of the owner and persons claiming under him, which stands until overthrown

by proof to the contrary.”); Syl. Pt. 4, Wildell Lumber Co. v. Turk, 75 W. Va. 26, 83 S.E.

83 (1914) (“There is a presumption against forfeiture of title for nonentry for taxation

and nonpayment of taxes….”).

Under this presumption, severance of title did not necessarily mean

severance of taxation. “On a claim of forfeiture for nonentry of oil and gas which have

been severed in title from that of the land under which they lie, it will be presumed that

the land was assessed and taxed as a whole at the time of the severance, that it has since

been carried on the land books in the same manner, and that the taxes have been paid

on the land as a whole, when the contrary does not appear.” Syl. Pt. 5, Kiser v. McLean,

67 W. Va. 294, 67 S.E. 725 (1910).

16
Our caselaw clearly establishes that when a mineral estate has never been

separately assessed, it is assumed to be assessed with the surface, even when the surface

owner and mineral owner are different. As the Supreme Court of Appeals explained in

Syllabus Point 5 of Sult v. A. Hochstetter Oil Co., 63 W. Va. 317, 61 S.E. 307 (1908):

Forfeiture of the title to minerals in a tract of land for
nonentry on the land books cannot be predicated on mere
severance in title of the minerals from the surface and lapse
of time, since presumptively the land was taxed as a whole
when the severance occurred, and has since been carried on
the land book in the same manner and the taxes paid.

In Syllabus Point 2 of United Fuel Gas Co. v. Hays Oil & Gas Co., 111 W. Va. 596, 163

S.E. 443 (1932), the court declared:

Where a grantor conveys the minerals in a tract of land, and
the assessor fails to charge the interest so conveyed on the
land book in the name of the grantee, for taxation, and the
land remains charged in fee to the grantor at the full
valuation, and he keeps the taxes paid thereon, there can be
no forfeiture of the minerals for nonentry for five years in
the name of the grantee.

In this case, the grantee, Velma Chisler, paid the taxes, rather than the grantor, but the

principle remains the same.16 As long as someone paid the property taxes for the oil and

16
There is no dispute that Velma Chisler paid the property taxes assessed in her
name. If Velma Chisler and/or her heirs failed to pay their taxes at any time during the
years between the time when the surface and oil and gas interests were severed, and the
time when the oil and gas interests were separately assessed, there is no evidence of it
in the record.
17
gas interest, there could be no forfeiture, because the State is only entitled to one

payment. State v. Hines-Bailey Corp., 103 W. Va. 180, ___, 136 S.E. 780, 782 (1927).

The Supreme Court of Appeals of West Virginia has also instructed that

establishing title through forfeiture to the State is an affirmative issue on which the party

attempting to prove that it acquired title from the State after forfeiture bears the burden

of proof. See Syl. Pt. 8, White Flame Coal Co. v. Burgess, 86 W. Va. 16, 102 S.E. 690

(1920) (stating that the party asserting forfeiture bears “the burden of proof of such

forfeiture and all facts necessary to establishment thereof”); Sult v. A. Hochstetter Oil

Co., 63 W. Va. at ___, 61 S.E. at 311 (court noted that presuming that there was

severance for taxation purposes because there had been a severance in title would

require it to relieve the plaintiff, “in violation of the general rule of law, from the burden

of proving an affirmative issue, its claim of title by forfeiture and transfer.”); Wildell

Lumber Co. v. Turk, 75 W. Va. 26, __, 83 S.E. 83, 85 (1914) (“Forfeiture is an

affirmative defense, the burden of which is upon the defendant”). The parties agree that

LT Realty bears the burden of overcoming the presumption and establishing its chain

of title which allegedly starts with forfeiture to the State through nonentry.17

17
At the September 28, 2020, hearing in circuit court, to his credit, counsel for
LT Realty candidly admitted that it was his client’s “burden to overcome the
presumption that the assessment was accurate” and to “overcome the presumption that
if it says surface, it probably might include oil and gas.”

18
In this case, Petitioners contend that even though the subject oil and gas

was not separately assessed in the land books, the evidence establishes that it continued

to be assessed with the surface after severance in title. Specifically, the 1941 land book

entry for “119.171 SUR DAYS RUN” in the name of Velma Jewel Chisler states that

the assessed “Land Value” was $1,300.00, and the assessed “Building Value” was

$500.00, for a “Total Assessed Value” of $1,800.00. A handwritten note accompanies

this land book entry, stating that this assessed value is based on the total comprised

value of the following individuals’ assessments from 1940: George D. Tennant; Cora

O. Berry; Zola Greyson; Emma R. Hunnell; Anna J. Pyles; Louvernia B. Shanes; Lillie

C. Sine; and David A. Tennant. There is also a notation in the 1941 land book denoting

which assessments of the prior owners were transferred to Velma Jewel Chisler and

which account for the assessed “Land Value” of the property described in 1941 as

“119.171 SUR DAYS RUN.” Each of these handwritten notations states: “To Velma

Jewel Chisler.”

The total “Land Value” of the 1940 assessments that were transferred to

Velma Chisler in 1941 (minus buildings) totaled $1,300.18 Critically, the “Land Value”

of the 1941 assessment for “119.171 SUR DAYS RUN” in the name of Velma Jewel

18
The value of the buildings appears to have decreased from $550.00 to $500.00.

19
Chisler also equaled $1,300.00. Therefore, Petitioners argue that all real property

interests encompassed in the individual assessments from 1940, which included the

subject oil and gas previously assessed in the name of George Tennant, were transferred

to Velma Jewel Chisler in 1941 in an assessment described as “119.171 SUR DAYS

RUN.” The fact that the value of those real property interests did not change between

1940 and 1941 allegedly establishes that the subject oil and gas continued to be assessed

in the “119.171 SUR DAYS RUN” assessment in 1941. The parties agree that if Velma

Chisler was assessed as owning the subject oil and gas interest, and paid the taxes

thereon, that LT Realty cannot establish its claimed title.19

Respondent LT Realty argues, however, that the presumption against

forfeiture was overcome, and its burden of proving its title through forfeiture to the

State, and subsequent transfer from it, was met because the various owners of the oil

and gas interest failed to have that estate separately assessed on the land books, there

was no entry assessing Chisler as owning the oil and gas, and there were inconsistencies

as to how mineral interests were assessed in the land books.20 In addition, LT Realty

19
During the September 28, 2020, hearing in circuit court, counsel for LT Realty
openly acknowledged that if he did not “overcome the presumption that Ms. Chisler
was assessed erroneously as owning the oil and gas, then I lose. I agree that’s the
threshold consideration.”

LT Realty emphasizes “inconsistencies” within the land books and describes
20

how assessors classified similar real property interests in different classifications. For
20
speculated about what the assessor(s) knew and/or intended.21 We conclude that these

factors and speculation were insufficient to overcome the presumption against forfeiture

through nonentry, and to meet LT Realty’s burden of proof in establishing its claim to

title.

IV. CONCLUSION

For the reasons stated in our opinion, we hold that the subject oil and gas

did not automatically forfeit to the State in 1947 for nonentry on the land books. Thus,

it could not have been conveyed in a tax deed to Shuman, Inc. and then to Elemental

Resources. In turn, Elemental Resources could not convey the subject oil and gas to LT

Realty through a special warranty deed. Accordingly, the decision of the circuit court

instance, LT Realty notes that a 1941 land book assessment in the name of David
Tennant for surface and “O&G” was listed as Class 3, but the same property in George
Tennant’s name was listed as Class 2. Respondent describes other alleged
inconsistencies within the land books and argues that these “inconsistencies” “call into
question whether and to what extent the property described in the 1941 Land Book as
‘118 SUR O.G. Days Run’ assessed in the names of George Tennant and the other co-
owners included a value attributed to the oil and gas in that parcel.” Resp. Br. 17-8 in
23-ICA-154.

The handwritten entry to the 1941 land books adding Velma Chisler as the
21

owner of “119.171 Sur. Days Run Class 2 1300-500-1800” was accompanied by a
handwritten note identifying the owners from whom she had acquired the tract and their
respective ownership interests, indicating that the information came “From Chartiers
Oil Co.” LT Realty argues that: “It must be assumed that the assessor contacted
Chartiers and requested this information, suggesting that the assessor knew George
Tennant and the other heirs of Marion and Martha Tennant heirs owned the oil and gas
in the tract acquired by Chisler.” Resp. Br. 19 in 23-ICA-154.
21
granting partial summary judgment in favor of LT Reality against the various energy

companies and the Tennant Petitioners is reversed.

Reversed.

22