In Avery v. Moore, 150 W. Va. 136, 144 S.E.2d 434 (W.Va. 1965), the plaintiff owned the surface estate of a 50-acre tract of land.
The plaintiff's surface estate had been part of a larger tract of land that was partitioned into five tracts. Id. The plaintiff held a 1/5 mineral interest in each of the five parcels of land. Id.
The other 4/5 of the mineral estate was owned by the other owners who were a part of the partition. Id. Later, the plaintiff conveyed the 50 acres to the defendant. Avery, 144 S.E.2d at 437.
The plaintiff sought a declaratory judgment for a determination of ownership as between herself and various defendants of interest in oil and gas underneath a certain parcel of land conveyed to one of the defendants. Avery, 144 S.E.2d at 434.
The court held the following:
"A deed conveying a tract of land of fifty acres . . . which is subject to a provision in a prior partition deed which entitles the grantor and other owners of identical undivided interests in the oil and gas within and under all the tracts involved in the partition of a larger tract into five parcels, one of which is the fifty acre tract . . . operates to grant and convey to the grantee in the such deed all of the right, title, interest and estate of the grantor in and to the oil and gas within and under the fifty acre tract, subject to the right of the owners of each of the four tracts to participate, to the extent of an undivided one-fifth interest, in the royalty when produced from the oil and gas within and under the fifty acre tract; but such deed does not grant and convey to the grantee any interest of the grantor in and to the oil and gas within and under all or any of the other four tracts involved in the partition of the larger tract of land." (Avery, 144 S.E.2d at 438.)