Expressio Unius Exclusio: Omission of “Successors and Assigns” Language Precludes Covenants from Running with the Land

Introduction

Snowshoe Mountain, Inc. v. Ruby Dog Holdings, LLC (4th Cir. May 27, 2025) marks a significant clarifying decision on deed interpretation and the circumstances under which a covenant in a deed will bind successors in interest.

Case Background: Snowshoe Mountain, Inc. (“Snowshoe II”) owns and operates a West Virginia ski resort, including a Preferred Ticket Program granting guaranteed lift‐ticket access at the lowest rate to guests lodging through Snowshoe’s rental management program. Ruby Dog Holdings, LLC (“Ruby Dog”) owns a separately built hotel within the resort footprint. Ruby Dog’s chain of title traces back to a 1979 deed from Snowshoe I to ABAS Partnership, which contained a “recreational facilities” covenant promising that “all guests” of ABAS‐owned lodging would receive the same amenities and privileges as Snowshoe I’s own guests.

Key Issue: Does the 1979 recreational covenant bind Snowshoe II (as a successor to Snowshoe I) so as to require Snowshoe II to extend its Preferred Ticket Program benefits to guests of Ruby Dog’s hotel?

Summary of the Judgment

The Fourth Circuit, in an unpublished majority opinion by Judge Heytens, affirmed the district court’s grant of judgment on the pleadings for Snowshoe II. Applying West Virginia interpretive principles, the court held:

The deed language is unambiguous and the “recreational facilities” covenant speaks only of “Snowshoe Company,” without referencing “successors and assigns.”
Elsewhere in the same deed, draftsmen used explicit “successors and assigns” and “shall run with and bind the land” language for other covenants, but omitted that language from the recreational covenant.
Under the maxim expressio unius est exclusio alterius, that omission conclusively shows the covenant was intended as personal to the original parties, not appurtenant to the estate and not binding on successors.
Because the covenant does not run with the land, Snowshoe II did not breach its terms by limiting the Preferred Ticket Program to guests of properties it manages.

Analysis

Precedents Cited

Faith United Methodist Church v. Morgan (2013): Confirms that a deed’s plain text is the best evidence of grantors’ intent, to be interpreted as a whole unless ambiguous.
Collingwood Appalachian Mins. v. Erlewine (2023): Holds that extrinsic evidence is off limits unless the deed text is “susceptible to differing or doubtful meanings.”
Antero Resources Corp. v. Directional One Servs. (2022): Reinforces that deeds are governed by contract‐interpretation principles, giving effect to every word and avoiding surplusage.
Bischoff v. Francesa (1949): Affirms the expressio unius maxim—when a drafter expressly includes some things but excludes others, the exclusion is intentional.
Roe v. M & R Pipeliners (1973): Explains that statutory or interpretive presumptions must yield to clear contrary evidence in the instrument itself.
Drager v. PLIVA USA, Inc. (2014): Sets forth the Fourth Circuit’s de novo standard for reviewing a Rule 12(c) judgment on the pleadings.

Legal Reasoning

1. Unambiguous Text Controls: Under West Virginia law, a court must interpret a deed’s plain language unless it is ambiguous. Here, the recreational covenant names only “Snowshoe Company” as the promisor and does not recite “successors and assigns” or “shall run with and bind the land.”

2. Expressio Unius Maxim: Other covenants in the same deed use explicit appurtenant language—“successors and assigns” (four times) and “shall run with and bind the land” (once). Their deliberate omission from the recreational covenant evidences an intent not to bind future owners.

3. No Covenant Running with the Land: Because the covenant’s text lacks any foundation for being construed to run with the land—unlike other provisions—the court refused to read in such an obligation or resort to extrinsic evidence.

4. Personal Covenant Only: The Fourth Circuit thus held that Snowshoe II, as the successor in interest to Snowshoe I, faced no obligation under the 1979 covenant to extend its modern Preferred Ticket Program to Ruby Dog’s guests.

Impact on Future Cases and the Law

Deed Drafters’ Precision: Framing a covenant to bind successors now requires express “successors and assigns” and “run with the land” language. Omission risks limiting rights to the original grantor and grantee.
Contractual Uniformity: Reinforces that deed interpretation follows contract‐law canons—every word matters, and differences in wording are presumed intentional.
Limit on Extrinsic Evidence: Confirms Fourth Circuit and West Virginia reluctance to consider extrinsic materials unless a deed is ambiguous.
Expressio Unius in Deed Interpretation: Strengthens the role of the expressio unius maxim, at least in West Virginia deeds, in creating conclusive inferences from textual omissions.
Commercial Real Estate Practice: Parties relying on generic, boilerplate deed covenants—especially those granting guest privileges—must double-check that their covenants will bind successors.

Complex Concepts Simplified

Appurtenant vs. Personal Covenant: An appurtenant covenant “runs with the land,” binding future owners; a personal covenant binds only the original parties. To make a covenant appurtenant, drafters usually add words like “successors and assigns.”
Expressio Unius est Exclusio Alterius: A Latin maxim meaning “the expression of one thing is the exclusion of another.” When a contract or deed mentions some items expressly, the omission of others is taken as intentional.
Judgment on the Pleadings (Rule 12(c)): A procedure similar to a motion to dismiss: if the pleadings show no disputed material facts and the moving party is entitled to judgment as a matter of law, the court may dispose of a case without a trial.
Deed Interpretation Hierarchy: (1) Plain language of the deed; (2) contract interpretation rules; (3) interpretive canons (e.g., giving effect to every clause); (4) extrinsic evidence only if text is ambiguous.

Conclusion

Snowshoe Mountain, Inc. v. Ruby Dog Holdings, LLC affirms a rigorous, text-centered approach to deed interpretation under West Virginia law. It establishes that when drafters include “successors and assigns” or “run with and bind the land” language in some sections of a deed but omit it from others, the omission is conclusive evidence of an intent to create a personal covenant, not one that runs with the land. Real estate practitioners must ensure that any covenant intended to bind future owners is drafted with explicit language; otherwise, successors in interest may escape obligations or promises contained in the original deed.