Amherst Coal Co v. Prockter Coal Co

• Decision Date: 03 April 1917
• Docket Number: (No. 3314.)
• Citation: 92 S.E. 253
• Parties: AMHERST COAL CO. v. PROCKTER COAL CO.
• Court: West Virginia Supreme Court

(80 W.Va. 171)

92 S.E. 253

AMHERST COAL CO.

v.PROCKTER COAL CO.

(No. 3314.)

Supreme Court of Appeals of West Virginia.

April 3, 1917.

(Syllabus by the Court.)

Appeal from Circuit Court, Logan County.

Bill for injunction by the Amherst Coal Company against the Prockter Coal Company. Injunction awarded, and from an order dissolving it on the motion of the defendant, plaintiff was awarded an appeal. Motion by appellee to dismiss the appeal, and motion by appellant to submit the cause for a hearing on the merits. Motions overruled.

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. [1] Before us are two motions, one by each of the opposing parties; the first to dismiss the appeal from an interlocutory, but under the statute an appealable, order of the circuit court dissolving an injunction, the second to submit the cause for a hearing on the merits upon affidavits. Both were made upon the supposition that section 26, c. 135, Code, authorized that procedure. While that section does grant authority to move to dismiss, reverse, or affirm, the rigid can be exercised only after reasonable notice, with leave previously obtained for that purpose. No leave was asked or granted, and no such notice given, for the motion to submit; and in no event could it be entertained on affidavits only, over the protest and objection of the adversary party, however explicit and competent they may be upon the merits of the case. He cannot, in this manner, be deprived of the right to mature his case by the ordinary procedure. Besides, a submission for decision on the merits cannot be had except by consent, unless upon compliance with the rules of court in filing briefs either party so far controls as to demand such submission where his adversary is in default. These reasons require the refusal of the motion, and leave open for consideration only the questions arising upon the motion to dismiss the appeal from the order dissolving the injunction awarded by the judges of this court present at the time. This motion was made upon leave first obtained, and upon the notice prescribed, and assignment of grounds therefor, as required by paragraph 1, Court Rule 8 (84 S. E. x).

This is a controversy between two colliery companies operating under mining leases, each of them on parcels of a large tract of land separately leased by V. B. Browning and others, owners in severalty of adjoining tracts. The Amherst Coal Company is the senior lessee. To it, as assignee of the original lessee, the contract granted that part of the land thereby embraced, lying south of Buffalo creek in Logan county, "for coal min ing and coal coking purposes only, " for a definite term of 40 years, and longer upon compliance with certain prescribed conditions not now involved. It also granted unto the lessee as appurtenant to the contract the right to "the use of sufficient of the surface of said lands for building and other purposes necessary in said operations." But to preserve to themselves, their heirs and assigns means of access to the railroad of the Chesapeake & Ohio Railway Company south of Buffalo creek, being its Buffalo branch line, to transport to market the coal mined from that part of the land located north of that creek, the lessors reserved the right to connect with the railroad on the north side thereof, but on the south side of Buffalo creek by switches or sidings, with the significant qualification that "said switches or sidings are not to interfere with the switches or sidings of the lessee herein."

The Amherst Coal Company, as authorized by that contract, entered upon the leased premises at the lower end of the leasehold, as determined by the flow of the water in Buffalo creek, erected and installed its coal mining and shipping appliances and facilities, including railroad connections by switches and sidings, for the purpose of opening and marketing the coal under the land leased to it, and since has continued to operate the seams of coal found under the land in that locality, known as the "Island Creek, " "Thacker, " and "Eagle" seams, the first two being the upper and the Eagle the lower, or deeper, seams on each side of the creek. The actual mining operations of the Eagle seam the Amherst Coal Company began to conduct through a 100-acre tract leased by the Virginia-Buffalo Coal Company, it being a friendly or cognate corporation, because in part composed of and owned by common shareholders.

After the execution of the lease acquired by the Amherst Coal Company, the same lessors entered into a similar lease contract with the Prockter Coal Company, granting to it the right to enter upon, mine, transport, and market the coal found under that part of the tract owned by the lessors on the north side of Buffalo creek; and the Prockter Coal Company likewise entered thereon, and opposite the plant of the Amherst Coal Company, opened its mine for the production of the coal from the Island Creek and Thacker seams, and thereafter until the institution of this proceeding, and perhaps since, has continued to mine these seams and therefrom market the coal as mined. These mining operations for the Island Creek and Thacker seams, conducted at the lower end of the tracts so leased, are surface or drift mouth operations, as distinguished from operations through or by means of slopes or shafts, these seams being above, while the Eagle seam is below, the water level at that end.

Each of these companies, about the...