Antco, Inc. v. Dodge Fuel Corp.

• Decision Date: 29 June 2001
• Docket Number: No. 28467.,28467.
• Citation: 209 W.Va. 644,550 S.E.2d 622
• Parties: ANTCO, INC., John Antulov, Margaret Antulov and Steve Antulov, Plaintiffs Below, Appellants v. DODGE FUEL CORPORATION, Defendant Below, Appellee
• Court: West Virginia Supreme Court

550 S.E.2d 622

209 W.Va. 644

ANTCO, INC., John Antulov, Margaret Antulov and Steve Antulov, Plaintiffs Below, Appellants v. DODGE FUEL CORPORATION, Defendant Below, Appellee

No. 28467.

Supreme Court of Appeals of West Virginia.

Submitted March 7, 2001.

Decided June 29, 2001.

Dissenting Opinion of Justice Davis July 6, 2001.

Charles E. Anderson, Esq., Fairmont, West Virginia, Attorney for Appellants.

Jeffrey D. Taylor, Esq., Rose, Padden & Petty, Fairmont, West Virginia, Attorney for Appellee. McGRAW, Chief Justice:

Appellants, surface owners who claim that mining subsidence damaged their real and personal property, appeal the lower court's grant of summary judgment in favor of a mining company that mined beneath the appellants' property. The lower court found that the appellants' deed contained a valid waiver of subjacent support, and that because of the waiver, the mining company was entitled to allow the surface to subside without any liability for damages to appellants' property. Because we agree that the deed contained a valid waiver, but find that disputed questions of material fact remain unanswered, we affirm in part, and reverse in part, the decision of the trial court.

I. BACKGROUND

John and Margaret Antulov, along with their sons Steve and John Antulov, purchased about 110 acres of land in Marion County, West Virginia, near the Harrison County line, on February 25, 1986. From the record it appears that the property had been strip mined and deep mined before the Antulovs purchased it, but that minable coal remained, both near the surface and in deeper deposits.

The Antulovs purchased the surface tract from Consolidation Coal Company, the deed to which contained a reservation of the mining rights in favor of the grantor. A handwritten notation in the deed limited the reservation to the "deep" mining rights, apparently conveying to the Antulovs the right to mine coal close to the surface. The deed also contained a waiver of subjacent support, and of any liability for any damages caused by subsidence that might result when the coal beneath the property was mined.¹ While we have often been asked to address disputes between surface owners and mineral owners, this is not the typical surface owner versus mining company case, because the surface owners in this case, the Antulovs, were also in the coal business. The four were joint owners in a family business called Antco, Inc., which they used to strip mine the property.² After mining coal for a time, the Antulovs determined that it would be more profitable for them to mine limestone than coal, so they began a quarry operation on the property.

The Antulovs purchased a used rock crusher, moved it to the property, and reassembled it. Because the crusher was a large machine that exerted enormous force when operating, the Antulovs had to support it on a platform they constructed out of steel I beams secured to large pipes driven into bedrock. They operated the quarry for some time, producing commercial limestone for various customers. The amount of revenue this operation produced is the subject of some debate between the parties.

Though not clear in the record, at some point the Antulovs were approached by representatives from Dodge Fuel Corporation (hereafter "Dodge"), or a related entity, who either then possessed, or were planning to soon acquire, the right to mine the deep coal under the Antulovs' property. These representatives proposed that the Antulovs join them in a venture to mine the remaining deep coal under the property. The Antulovs agreed and became part owners in Dodge Fuel Corporation. The Antulovs were to perform some excavation related to the deep mine, and were to assist in obtaining the necessary mining permits to conduct the operation.³

Dodge acquired the rights to the coal from Bellwood Mining Company by agreement and lease dated September 17, 1993. Subsequently, Dodge applied for and received a permit from the West Virginia Department of Environmental Protection (hereafter "DEP") to commence secondary mining operations beneath the Antulov property.⁴ West Virginia mining regulations, discussed infra, require any mining company to provide, in its permit application, detailed pre-mining information about the possible consequences of mining-related subsidence.

In an attachment to its permit, Dodge stated:

(6) Even though the operator does not believe that subsidence will cause material damage or diminution in value or foreseeable use of the land or structures over the proposed deep mine. [sic] The operator acknowledges that if subsidence causes material damage or reduces the value or reasonably foreseeable use of the surface lands, the operator shall restore the land to a condition capable of supporting uses it was capable of supporting before subsidence regardless of the right to subside. (emphasis added)

(7) The quarry that the deep mine intends to undermine will be protected by leaving at least 50% of the coal in place in the area under the quarry. (emphasis added)

In all other areas of planned subsidence surface measures (repair of the damaged surface) will be taken to prevent material damage or lessening of the value or reasonably foreseeable use of the surface.

During the time that Dodge conducted mining beneath the Antulov property, DEP cited Dodge⁵ with Notices of Violation for: 1) failing to adopt a subsidence control plan with a satisfactory "angle of draw" (a term of art relating to the estimation of the area of the subsidence)⁶ and 2) conducting mining operations outside the boundaries described on Dodge's approved map.⁷

The Antulovs claimed before the circuit court that Dodge failed to follow the requirements of its permit and undermined the land beneath their rock quarry, which Dodge had specifically promised not to do in its permit application. The Antulovs claim that this violation of the permit produced subsidence that damaged their equipment, thereby making it economically unfeasible to continue their quarry operations. As a result, the Antulovs claim direct damages for the lost equipment as well as lost profits from their business.

Dodge argued below that the deed held by the Antulovs for the surface contains a clear waiver of subjacent support, and thus forecloses the Antulovs from maintaining this action for damages. That is to say, that despite any statements made in its permit application, Dodge claimed it had the right to mine and to cause the land to subside, within the limits of our mining law, without any liability for any damage to the Antulovs' quarry equipment.

The Circuit Court of Marion County agreed with Dodge. The court granted summary judgment in favor of Dodge, finding that the Antulovs' deed of February 26, 1986, was and remains valid, and "clearly and conclusively demonstrates the intention of [the Antulovs] to waive any right to subjacent and lateral support ...." and that, as a result of this finding, no genuine issue of material fact existed. While we agree that this relatively recent waiver of subjacent support contained in the 1986 deed was valid and affirm the lower court on this issue, we find that questions of material fact exist with regard to Dodge's violations or alleged violations of its mining permit, and reverse on that basis.

II. STANDARD OF REVIEW

We have routinely declared our standard of review for a lower court's grant of summary judgment:

"A circuit court's entry of summary judgment is reviewed de novo." Syl. pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). A party moving for summary judgment faces a well-established burden: "A motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law." Syl. pt. 3, Aetna Cas. & Surety Co. v. Federal Insur. Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).

Mallet v. Pickens, 206 W.Va. 145, 147, 522 S.E.2d 436, 438 (1999). We have also noted that, "[i]n determining on review whether there is a genuine issue of material fact between the parties, this Court will construe the facts `in a light most favorable to the losing party,'" Alpine Property Owners Association, Inc., v. Mountaintop Development Company, 179 W.Va. 12, 17, 365 S.E.2d 57, 62 (1987) (quoting Masinter v. WEBCO Co., 164 W.Va. 241, 242, 262 S.E.2d 433, 435 (1980)).

III. DISCUSSION

We remark at the outset that this case turns not upon the validity of waivers of subjacent support, but rather upon Dodge's violation of specific promises or statements made in its permit application. As we discuss below, a proper waiver and adherence to state and federal mining regulations can allow a mining company to cause subsidence, and in certain cases damage surface structures without incurring liability. The cynosure of this case is how Dodge's actions may have, in effect, invalidated or limited an otherwise valid waiver of subjacent support.

A. Applicability of the West Virginia Surface Coal Mining and Reclamation Act

Appellants ask us to review the conduct of the appellees in light of the West Virginia Surface Coal Mining and Reclamation Act ("WVSCMRA"), now found at W. Va.Code § 22-3-1, et seq.⁸ Our Legislature has declared that the goal of our mining regulations is to strike a proper balance between a healthy environment and a healthy economy, and that mining may not be pursued to the detriment of all else:

Further, the Legislature finds that unregulated surface coal mining operations may result in disturbances of surface and underground areas that burden and adversely affect commerce, public welfare and safety by destroying or diminishing the utility of land for commercial, industrial, residential, recreational, agricultural and forestry purposes; by causing erosion and landslides; by contributing to floods; by polluting the water and river and stream beds; by destroying fish, aquatic life and wildlife

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