Kuhn v. Fairmont Coal Co.

• Decision Date: 16 April 1907
• Citation: 152 F. 1013
• Parties: KUHN v. FAIRMONT COAL CO.
• Court: U.S. Court of Appeals — Fourth Circuit

152 F. 1013

KUHN v. FAIRMONT COAL CO.

United States Circuit Court, N.D. West Virginia.

April 16, 1907

H. W Williams and Harvey W. Harmer, for plaintiff.

John Bassel, Z. T. Vinson, and C. Powell, for defendant.

DAYTON District Judge.

Barton W. Kuhn, a citizen of Ohio, has brought this original action of trespass on the case against the Fairmont Coal Company, a West Virginia corporation, alleging himself to be the owner of a certain tract of land in Marion county, this state containing 91 acres, the coal underlying which he on November 1, 1899, sold and conveyed to Johnson N Camden, 'with right to enter upon and under said land, and to mine excavate, and remove all of said coal, and remove upon and under the said land the coal from and under adjacent coterminous, and neighboring lands, and also the right to enter upon and under the tract and make all necessary structures, roads, ways, excavations, airshafts, drains, drainways, and openings necessary or convenient for the mining and removal of the said coal and the coal from coterminous and neighboring lands to market'; that this right to the coal, by various conveyances, has vested in the defendant, Fairmont Coal Company, which has so mined it and removed the supporting pillars as to cause the surface to break, crack, rend, and sink so as to damage the value thereof, for farming and other purposes, to the extent of $10,000. To this declaration the defendant company has appeared, craved oyer of the deed set forth in the declaration, and, when read to it, has demurred and alleged that such declaration presents in law no cause of action against it.

It is this demurrer that I am to pass upon. It seems from the records and reports of the Supreme Court of Appeals of West Virginia that, prior to the institution of this suit, one Leander Griffin in the circuit court of Harrison county, this state, instituted a like action of trespass on the case, upon a contract or deed containing precisely the same covenants as to the removal of the coal that are presented here, claiming similar damages for injury to the overlying surface. This action was heard by the state court, and it was by the judge thereof decided that, under the grant of the deed to the company of all the coal underlying the land and the right to remove the same, there was no implied reservation that the grantee must leave enough coal to support the overlying surface, and that no cause of action therefore existed in the plaintiff owner of such surface for damages done it by the mining out of the coal. To this judgment of the lower court a writ of error was sued out to the Supreme Court of Appeals of the state, where the question was most elaborately considered after argument twice had, upon the original and rehearing, and that court, with but one dissenting voice, affirmed the holding of the lower court. Three very elaborate and able opinions are filed, two in affirmance and one for dissent, which cover some 50 pages-- 53 S.E. 24-75 (59 W.Va. 480, 2 L.R.A. (N.S.) 1115)-- and in which the authorities, pro and con, are given and fully discussed.

The first question for me to determine is whether I should follow the construction of this contract thus given by the court of last resort of the state; for, if it is my duty so to do, under that construction, the plaintiff here will have no cause of action, and the demurrer must be sustained. It cannot be gainsaid that by the deed in controversy the plaintiff parted with his title to the coal underlying his land, and that, through this deed and subsequent conveyances, title to the same has become vested in the defendant company. This coal in its natural state is as much real estate as is the surface. This decision of the Supreme Court of Appeals of the state in the Griffith Case, containing precisely the same words of grant and covenant, must therefore be held to be one relating to the property right and title of the parties to real estate in West Virginia, and to establish the local law as to real estate so held. Without attempting to discuss the broad question of just when and to what extent federal courts will follow the decisions of state courts, which question has given rise to so much and to a considerable extent diverse opinion, it is sufficient to say that it is now settled beyond per-adventure that the federal courts will in all actions at law follow and be governed by such decisions of the state courts of last resort which relate to and define the property rights and title to real estate within the confines of such states. In Jackson v. Chew, 12 Wheat. 153, 167 (6 L.Ed. 583), it is said:

'It has been urged, however, at the bar that this court applies this principle only to state constructions of their own statutes. It is true that many of the cases in which this court has deemed itself bound to conform to state decisions have arisen on the construction of statutes; but the same rule has been extended to other cases; and there can be no good reason assigned why it should not be, when it is applying settled rules of real property. This court adopts the state decisions because they settle the law applicable to the case; and the reasons assigned for this course apply as well to rules of construction growing out of the common law as the statute law of the state when applied to the title to lands. And such a course is indispensable, in order to preserve uniformity; otherwise, the peculiar Constitution of the judicial tribunals of the states and of the United States would be productive of the greatest mischief and confusion.'

In Bucher v. Cheshire R.R. Co., 125 U.S. 555, 8 Sup.Ct 974, 31 L.Ed. 795, the Supreme Court has held: 'The courts of the United States adopt and follow the decisions of the highest court of a state in questions which concern merely the Constitution or laws of that state; also where a course of those decisions, whether founded on statutes or not, have become rules of...