Griffin v. Fairmont Coal Co

• Citation: 59 W. Va. 480,53 S.E. 24
• Court: Supreme Court of West Virginia
• Decision Date: 14 November 1905
• Parties: GRIFFIN. v. FAIRMONT COAL CO.

53 S.E. 24
(59 W. Va. 480)

GRIFFIN.
v.
FAIRMONT COAL CO.

Supreme Court of Appeals of West Virginia.

Nov. 14, 1905.

1. Mines and Minerals—Deeds to Coal— Construction.

Deeds conveying coal with rights of removal should be construed in the same way as other written instruments, and the intention of the parties as manifest by the language used in the deed itself should govern.

2. Same—Rights or Purchaser—Injury to Surface.

The vendor of land may sell and convey his coal and grant to the vendee the right to enter upon and under said land and to mine, excavate, and remove all the coal purchased and paid for by him, and, if the removal of the coal necessarily causes the surface to subside or break, the grantor cannot be heard to complain thereof.

[Ed. Note.—For cases in point, see vol. 34, Cent. Dig. Mines and Minerals, §§ 158, 243.]

3. Same—Reservation in Deed.

Where a deed conveys the coal under a tract of land, together with the right to enter upon and under said land and to mine, excavate, and remove all of it, there is no implied reservation in such an instrument that the grantee must leave enough coal to support the surface in its original position.

[Ed. Note.—For cases in point, see vol. 34, Cent. Dig. Mines and Minerals, §§ 158, 243.]

4. Contracts—Construction.

It is the duty of the court to construe contracts as they are made by the parties thereto, and to give full force and effect to the language used, when it is clear, plain, simple, and unambiguous.

[Ed. Note.—For cases in point, see vol. 11, Cent. Dig. Contracts, §§ 723, 732-738.]

5. Same.

It is only where the language of a contract is ambiguous and uncertain and susceptible of more than one construction that a court may, under the well-established rules of construction, interfere to reach a proper construction and make certain that which in itself is uncertain.

[Ed. Note.—For cases in point, see vol. 11, Cent. Dig. Contracts, §§ 723, 732-738.]

Poffenbarger, J., dissenting.

(Syllabus by the Court.)

Error to Circuit Court, Harrison County.

Action by Leander Griffin against the Fairmont Coal Company. Judgment for defendant, and plaintiff brings error. Affirmed.

H. W. Banner, H. W. Williams, W. P. Hubbard, and Thos. P. Jacobs, for plaintiff in error.

John Bassell, Z. T. Vinson, and E. A. Brannon, for defendant in error.

McWHORTER, J. This is a writ of error to a judgment of the circuit court of Harrison county, rendered in the case of Leander Griffin v. Fairmont Coal Company, by the Honorable John W. Mason, then judge of that court. The learned judge in rendering the judgment filed in the case an opinion in writing, which opinion is copied into one of the

[53 S.E. 25]

briefs filed in the case, and so ably discusses most of the questions arising in the case that I have quoted and adopted as part of the opinion in this case a large part thereof, which accords in the main with the views of the majority of this court: "The declaration alleges that the plaintiff on—day of—, 1902, was the owner in fee of a certain tract of land, situated in Harrison county, and fully described by metes and bounds, containing about G8 acres, and that underlying the surface of said land there is a vein of coal, which coal (except about three acres) the plaintiff and his grantors on the 1st day of November, 1889, sold and conveyed to Johnson N. Camden, with the following mining rights and privileges: 'The party of the second part and his assigns is to have the right of way through said reservation for a road, air course and drainway, necessary or convenient for the mining and removal of said coal and the coal under coterminous and neighboring lands, together with the right to enter upon and under said land, and to mine, excavate and remove all of said coal and remove upon and under said land the coal from under adjacent, coterminous and neighboring lands, and also the right to enter upon and under the tract of land hereinbefore described, and make all necessary structures, roads, ways, excavations, air shafts, drains, drainways and openings necessary and convenient for the mining and removal of said coal and the coal from coterminous and neighboring lands to market.' The declaration further alleges that said coal and mining rights were, by various deeds, conveyed to the Fairmont Coal Company, and that it was on the —day of —, 1902, the owner of said coal and mining rights and privileges; that the said farm or tract of land was owned in fee and used and occupied by the plaintiff on the day and year last aforesaid, and for a long time prior thereto, as a home and farm; that the defendant on the day and year last aforesaid, and prior thereto, mined and removed the coal under the said tract of land, as it had a right to do, leaving, however, large blocks or pillars of coal as a means of support to the overlying surface of said tract of land; that on the —day of —, 1902, the defendant, well knowing the premises, by its agents and servants, wholly ignoring the right of the plaintiff in that behalf, did willfully and negligently and without any compensation therefor, or from the damages arising therefrom, mined and removed all of the said blocks or pillars of coal left as aforesaid, and that by reason of the mining or removal of said blocks or pillars of coal, and by reason of the failure of the defendant to provide in any way proper or sufficient support for the overlying surface of said land, the said land, or a large portion thereof, was caused to fall; that the strata of rock overlying said coal and forming a part of the said land were cracked, broken, and rent, and that large bodies of it, with the overlying surface, fell, leaving the said surface with holes and sunken places of such great size and depth as to render it unsafe and of little value for grazing stock or cattle or other farming purposes; that fissures of great depth, and running at great length, were made at different places on said land, some of which were near to the dwelling house of plaintiff, passing through that part of said land most valuable for cultivation, and all the water percolating said land above the said coal removed as aforesaid, and all the springs and other courses supplying said farm were diverted, sunken, and wholly destroyed. There is also a second count in the declaration, alleging that defendant, through its agents, servants, and employes, entered said mine under the said premises and wrongfully and willfully, and without any compensation therefor, did quarry large quantities of valuable building stone and re-move the same off of the said premises, which stone were of the value of $200. The damages claimed in the conclusion of the declaration are $5,000. The defendant has entered a general demurrer to the declaration and each count. The questions arising upon this demurrer are the only ones now before the court.

"No defects in the second count have been suggested by counsel and none are observed by the court, unless it be that it should be averred that the stone removed belonged to the plaintiff. It is possible that by a liberal construction this may be inferred from the general averment of ownership of the land (with the exceptions named) contained in the first part of the declaration. It was prob-ably unnecessary to repeat this in this court, The demurrer to the second count may there-fore be overruled.

"The serious, and, in fact, only important, question in this case arises upon consideration of the first count. No objections have been pointed out to the form of this count. The objection insisted upon by defendant goes to the right of action. If the defendant's contention be correct, the facts stated in the first count do not constitute a cause of action, even if formally pleaded. I may add, in passing upon this count, that the declaration should, in addition to the formal commencement and conclusion, contain four parts, to wit: First, a statement of the interests and relative rights of the parties; second, the duties which the defendant owed the plaintiff; third, a breach of duty on the part of the defendant; and fourth, the damages which resulted to the plaintiff by reason of this breach of duty. This declaration does contain a very full statement of the rights of the parties. It avers that the plaintiff owned the land, except the coal and mining rights and privileges named; that this coal and mining rights belonged to defendant; that plaintiff was in possession, using and occupying the land as a home and a farm; that the defendant

[53 S.E. 26]

mined and removed coal under said land, as it had the right to do. The declaration does not, however, in specific terms, declare what are the duties as claimed by the plaintiff imposed upon the defendant in the premises. The pleader simply avers that the defendant mined and removed coal under the land, leaving, however, large blocks or pillars of coal as a means of support to the overlying surface, and then alleges that the defendant, by its agents and servants, wholly ignoring the rights of the plaintiff in the behalf, did willfully and negligently, and without any compensation therefor, or for the damages arising therefrom, mine and remove all of the said blocks or pillars of coal left as aforesaid, and that by reason of the mining and removal of said blocks or pillars of coal, and the failure of defendant to provide in any way proper or sufficient support for the overlying surface, the land was caused to fall, etc. Now, it will not be contended, I apprehend, that these blocks and pillars of coal did not belong to the defendant, nor that it did not have the right to remove them. All that can be claimed is that, if all the coal be removed, some sufficient support would have to be provided in its stead. At most, all that could be required of the defendant in this respect would be to furnish a sufficient support for the overlying surface. The declaration is somewhat confusing and uncertain on this point. But, if I am correct in the views hereinafter stated, this...