Amherst Coal Co v. Prockter Coal Co

• Decision Date: 06 November 1917
• Docket Number: (No. 3314.)
• Citation: 81 W.Va. 292,94 S.E. 145
• Court: West Virginia Supreme Court
• Parties: AMHERST COAL CO. v. PROCKTER COAL CO.

94 S.E. 145

(81 W.Va. 292)

AMHERST COAL CO.

v.PROCKTER COAL CO.

(No. 3314.)

Supreme Court of Appeals of West Virginia.

Nov. 6, 1917.

(Syllabus by the Court.)

Appeal from Circuit Court, Logan County.

Action for injunction by the Amherst Coal Company against the Prockter Coal Company. Decree for defendant, and from an order dissolving the injunction plaintiff appeals. Reversed, injunction reinstated, and cause remanded.

Brown, Jackson & Knight, of Charleston, Lilly & Shrewsbury, of Logan, and Campbell, Brown & Davis, of Huntington, for appellant.

Chafin & Bland, of Logan, and Holt, Duncan & Holt, of Huntington, for appellee.

LYNCH, P. The facts upon which the right of the Amherst Coal Company to the protection of the injunction order of December 12, 1916, to some extent depend are stated in the opinion reported in 92 S. E. 253. The case then was decided upon two motions, both overruled; one to submit for decision upon the merits in advance of the date regularly fixed therefor upon the docket, the other to dismiss the appeal, as allowed in section 26, c. 135, Barnes' Code. It now is to be determined upon the same state of facts presented, as before, by affidavits, in its regular order upon the court docket, on an appeal from an order by the circuit court dissolving the injunction.

Necessarily what may properly be said at this time and in these circumstances must be limited and restricted to an adjudication of the right of the plaintiff to preserve the property in the condition as it was upon the award of the injunction until the case is matured fully for final hearing upon its merits, and not upon ex parte affidavits, where no opportunity is afforded to subject the statements therein made to the usual test of a cross-examination.

The two vital and dominant questions arise out of the rights and privileges granted or reserved in the joint lease of the Hector Coal Land Company and the Brownings-to plaintiff, Amherst Coal Company, dated May 1, 1912, in and upon one tract of land, and out of therights and privileges granted or reserved in the lease of the Altizer Coal Land Company and the Brownings to the Prockter Coal Company dated April 29, 1915, in and upon another and 'different tract of land. The two tracts leased are separated only by Buffalo creek, a tributary of Guyandotte river in Logan county. The rights granted to the lessee in each lease are full and adequate to effectuate the purposes of each grant both as to surface and mining rights, including the right to mine, remove and market the coal, to manufacture it thereon into coke and market that commodity, but not beyond certain well-defined limits and restrictions or reservations contained in each lease. Among the things granted to the Amherst Coal Company, "for coal mining and coke making purposes only" are, so far as now pertinent, the right to dig, shaft, mine, and carry away coal, in, under, and upon the premises; to manufacture and carry away coke and other coal products; to take and use such water, stone, and sand as may be needed or necessary for use upon the premises in connection with the operations contemplated by the lease, and the use of sufficient of the surface of the lands for building and other purposes as necessary in such operations. But the lessors reserve certain kinds and dimensions of timber, with the privilege of its removal; the rights of way over the land theretofore granted to the Peytonia Land Company and to the Chesapeake & Ohio Railway Company; the surface of two tracts, each containing approximately two acres, one near the mouth of Robinette branch of Buffalo creek and one where D. H. Toler resides, each of the two acres to be located by agreement as therein provided, but "in such manner as not to interfere with mining operations on said land"; also the right to farm such portions of the 237-acre tract, part of the leased premises, as the lessors may elect, but "such farming shall be carried on upon such portions of said tract as will not interfere with the mining operations of the lessee"; also the reservation of the oil and gas, and the right to drill therefor and market the same, with like provision for noninterference with the rights of the lessee. These express reservations are important now only in so far as they...