Moreover, the alleged "admission" of appellant here appears to be contrary to the argument in its brief (p. 9) that — Cole v. Ross Coal Co., 150 F. Supp. 808, 809-10, and cases cited (D.C.W.Va. 1957), aff'd 249 F.2d 600 (4th Cir. 1957). The claims here in issue, i. e., claims 5 and 8 of the Reissue patent, were not in issue in the prior litigation and were redrafted specifically to avoid the basis on which this Court of Appeals held original Claim 5 invalid. . . . collateral estoppel . . . does not and cannot apply to the validity of claims 5 and 8 of the Reissue patent.

A motion for summary judgment was granted under Rule 56 of the Federal Rules of Civil Procedure, 28 U.S.C.A. upon the motion of the Trustees. Cole v. Ross Coal Company, D.C., 150 F. Supp. 808. From this order, Ross Coal Company, the defendant below, has appealed to this Court. Prior to August 10, 1939, the West Virginia Coal Coke Corporation was the owner in fee of a tract of land in Logan County, West Virginia, containing 217½ acres known as the Rossmore tract.

In West Virginia, courts have similarly held that in the absence of any express intention to the contrary, a defendant may be deemed to have been given the normal implied mining rights in addition to those specified in the deed. Cole v. Ross Coal Co., 150 F.Supp. 808, 815 (S.D.W.Va.1957), aff'd,249 F.2d 600 (4th Cir.1957); see also Coffindaffer v. Hope Natural Gas Co., 74 W.Va. 107, 81 S.E. 966 (1914) (stating that a person having the right to go upon another's land “to bore and develop said land for oil and gas, with the necessary usual and convenient rights” has the right to build a road over the land, when necessary to haul machinery and material to the place selected for drilling a well). Although these cases provide some insight as to what rights to surface use by a mineral owner will be implied, none of these cases discuss the use of pits for drill cuttings and other materials.

However, where there are indications of formality and reliability, courts may, in their discretion, bind the parties' to their respective admissions. See, e.g., City Nat'l Bank v. United States, 907 F.2d 536, 544 (5th Cir. 1990); Purgess v. Sharrock, 33 F.3d 134, 144 (2d Cir. 1994); Keller v. United States, 58 F.3d 1194, 1199 n. 8 (7th Cir. 1995)); American Title Ins. Co. v. Lacelaw Corp., 861 F.2d 224, 226-27 (9th Cir. 1988); Plastic Container Corp. v. Continental Plastics of Oklahoma, Inc., 906 (10th Cir. 1979), cert. denied, 444 U.S. 1018 (1980) (citing Cole v. Ross Coal Co., 150 F.Supp. 808, 809 (D.W.Va. 1957)).See New Amsterdam Casualty Company v. Waller, 323 F.2d 20, 24 (4th Cir. 1963)

The Fourth Circuit, however, has generally ruled that a statement in an opposing party's brief does not create an issue of material fact sufficient to defeat summary judgment. Northern Ins. Co of N.Y. v. Baltimore Bus. Commc'n., 68 Fed. Appx. 414, 421 (4th Cir. 2003) (holding that statements in memoranda, unlike pleadings, do not generally constitute binding judicial admissions); Ryan v. Eli Lilly and Co, 514 F.Supp. 1004 (D.S.C. 1981) (holding that briefs or memoranda of parties may not be considered to show what facts are in dispute); Cole v. Ross Coal Co., 150 F.Supp. 808, 809-10 (D.W.Va. 1957) (holding that admissions in briefs are not properly considered on summary judgment because the briefs are not part of the record). Hence, the statements in the Defendant's Brief do not constitute a judicial admission.

The Fourth Circuit, however, has generally ruled that a statement in an opposing party's brief does not create an issue of material fact sufficient to defeat summary judgment. Northern Ins. Co of N.Y. v. Baltimore Bus. Commc'n., 68 Fed. Appx. 414, 421 (4th Cir. 2003) (holding that statements in memoranda, unlike pleadings, do not generally constitute binding judicial admissions); Ryan v. Eli Lilly and Co, 514 F. Supp. 1004 (D.S.C. 1981) (holding that briefs or memoranda of parties may not be considered to show what facts are in dispute); Cole v. Ross Coal Co., 150 F. Supp. 808, 809-10 (D.W.Va. 1957) (holding that admissions in briefs are not properly considered on summary judgment because the briefs are not part of the record). In this case, a close look at the underlying declaration supports the general Fourth Circuit rationale.

But the preliminary determination that a contract is ambiguous is a question of law for the court, Tokio Marine Fire Ins. v. McDonnell Douglas Corp., 617 F.2d 936, 940 (2d Cir. 1980); Sutton v. East River Savings Bank, 450 N.Y.S.2d 460, 462, 55 N.Y.2d 550, 435 N.E.2d 1075 (1982) and the mere fact that the parties disagree on the construction of a contract does not establish ambiguity. Freeman v. Continental Gin Company, 381 F.2d 459, 465 (5th Cir. 1967); Cole v. Ross Coal Co., 150 F. Supp. 808, (S.D.W.Va.), aff'd 249 F.2d 600 (4th Cir. 1957). However, if the "contractual language is susceptible of at least two fairly reasonable interpretations, this presents a triable issue of fact, and summary judgment [is] not proper."

Notwithstanding the fact that the motion to strike has been denied, the Appendix, just as any brief, is not a source of evidence which a court may consider on a motion to dismiss supported by affidavits. Cole v. Ross Coal Co., 150 F. Supp. 808, 809-10 (S.D.W.Va.), aff'd, 249 F.2d 600 (4th Cir. 1957); Kramer v. Scientific Control Corp., 365 F. Supp. 780, 786-87 (E.D.Pa. 1973); Harry Winston, Inc. v. Waldfogel, 292 F. Supp. 473, 476 (S.D.N.Y. 1968). Therefore, the court's decision on the motions to dismiss will not be based on the allegations of fact found in the Appendix.

Sarnia Steamships v. Continental Grain Co., 7 Cir., 1941, 125 F.2d 362. The initial determination that a contract is ambiguous is, of course, for the court, Steele v. McCargo, supra, and the mere fact that parties disagree with the construction of a contract does not establish ambiguity. Cole v. Ross Coal Co., D.C.S.D.W. Va., 150 F. Supp. 808, affirmed 4 Cir., 1957, 249 F.2d 600. The presumption relied on by the respondent that the term "all time saved" in the charter party means all time saved to the ship, conflicts with the express language of paragraph 11 which provides for demurrage per running day and dispatch per day. Another factor which must be considered in the computation of dispatch money is the custom of the particular port or ports involved.

While there is some authority for the proposition that a corporate officer presumptively has personal knowledge of the matters stated in an affidavit made on behalf of the corporation; United Bonding Ins. Co. v. Dura-Stress, Inc., 243 So.2d 244, 246 (Fla.App.); annot., 3 A.L.R. 132; 3 Am.Jur.2d, Affidavits, 5; 2A C.J.S., Affidavits, 50; in our view the better rule is that followed by the federal courts: in summary judgment proceedings, affidavits made by corporate officers and other parties must aver or affirmatively show personal knowledge of the matters stated therein. See, e.g., Antonio v. Barnes, 464 F.2d 584, 585 (4th Cir.) (affidavits of assistant prison superintendents held inadmissible because they did not indicate personal knowledge of prisoner's circumstances); Cole v. Ross Coal Co., 150 F. Sup. 808, 810 (S.D. W. Va.) (affidavit from chief engineer for real estate trust admitted because it averred personal knowledge of the facts); Monroe v. Board of Education of Town of Wolcott, 65 F.R.D. 641, 648 (D. Conn.) (school superintendent's affidavit held inadmissible for no showing of personal knowledge of circumstances attending student's expulsion, but similar affidavit from principal admitted because of principal's judicially noticed responsibility for day-to-day school operations); Arkansas-Best Freight System, Inc. v. Youngblood, 61 F.R.D. 565, 569 (W.D. Ark.) (corporate officer's affidavit admitted because it showed familiarity with auditors' reports); Land Title Co. of Alabama v. State ex rel. Porter, 292 Ala. 691, 702, 299 So.2d 289 (concurring opinion of Heflin, C.J.) (corporate officer's affidavit criticized for reciting details of loan transactions without indicating that the statements were made on personal knowledge); 10 Wright Miller, Federal Practice and Procedure 2738, p. 685. It is espe