Barkers Creek Coal Co v. Alphapocahontas Coal Co
| Decision Date | 01 July 1924 |
| Docket Number | (C. C. No. 278.) |
| Citation | 123 S.E. 803 |
| Parties | BARKERS CREEK COAL CO. v. ALPHAPOCAHONTAS COAL CO. |
| Court | West Virginia Supreme Court |
(Syllabus by the Court.)
[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Account.]
Certified Questions from Circuit Court, Wyoming County.
Action by the Barkers Creek Coal Company against the Alpha-Pocahontas Coal Company. The court overruled a demurrer to certain counts in the declaration, and the questions arising thereon were certified for review. Affirmed.
Ashton File and W. W. Goldsmith, both of Beckley, J. A. Toler, of Mullins, and Price, Smith & Spilman, of Charleston, for plaintiff.
Damron & Preston, of Williamson, for defendant.
MEREDITH, P. This is an action of trespass on the case. The declaration consists of seven counts. The circuit court overruled a demurrer to the first two and sustained it as to the last five counts. The questions arising thereon were certified for review.
The first count charges, in substance, that by lease dated the 4th day of January, 1915, Pocahontas Coal & Coke Company leased to Cooper-Pocahontas Coal Company a tract of 1, 013.84 acres of land therein described by metes and bounds, situated in Wyoming county, for coal mining purposes, for the term of 30 years, to be reckoned from the 1st day of September, 1914, and thereby granted to such lessee the sole and exclusive right and privilege of mining and removing coal from all the veins or seams of coal underlying such land for the full term thereby created; that Cooper-Pocahontas Coal Company immediately entered into possession of the premises and began to mine and remove one of the seams of coal so leased to it; that by deed of assignment dated the 1st day of May, 1918, it assigned and transferred unto plaintiff the said lease, and also thereby assigned, transferred, and set over unto the plaintiff all accounts and bills receivable and all other obligations or liabilities due to it of whatever kind, wheresoever situated and by whomsoever due; that the lessor, Pocahontas Coal & Coke Company, joined in such assignment, thereby evidencing its consent thereto; that the plaintiff accepted the assignment; that such assignment operated to transfer to and vest in the plaintiff the lease and all accounts and bills receivable and all other obligations and liabilities due to Cooper-Pocahontas Coal Company of whatever kind, wheresoever situated, and by whomsoever due at the time such assignment was made; that there was included in said assignment unto the plaintiff the damages accrued or accruing to Cooper-Pocahontas Coal Company by reason and on account of any and all of the trespasses and encroachments complained of; that prior to the institution of this action Pocahontas Coal & Coke Company also let and leased unto the defendant Alpha-Pocahontas Coal Company certain lands adjoining the tract embraced in the lease to Cooper-Pocahontas Coal Company; that the land so leased to the respective parties is underlaid with valuable seams of bituminous coal; that the defendant was also engaged in mining and removing from the tract of land leased to it the same seam or vein of coal which the plaintiff was engaged in mining and removing from the land leased to it; that the defendant, on or about the 1st day of January 1918, and upon and at divers other times from that date until the commencement of this action, did unlawfully, carelessly, knowingly, and willfully, open, dig, mine, and remove the said seam of coal outside of and beyond the boundary and division line between the property leased to the respective parties into the land leased to the plaintiff in sundry places and for long distances without the knowledge or consent of the plaintiff or of Cooper-Pocahontas Coal Company in writing or otherwise, and that the defendant also drove entries, airways and rooms and prosecuted its mining operations therein and penetrated into and entirely broke the barrier pillar along the division or dividing line, between the land leased to the plaintiff and defendant respectively, and so carelessly and negligently mined and removed coal therefrom that the plaintiff was compelled to and did establish barrier pillars in said seam of coal on the land so leased to Cooper-Pocahontas Coal Company for a long distance, which became and was necessary to be done in order to protect the mine of the plaintiff, and as well also to protect the mine of the defendant; that the barrier pillars so established contain 3, 000 tons of coal which cannot now be mined, but which otherwise could have been mined by the plaintiff but for the encroachments so made by the defendant, and that such 3, 000 tons of coal are in consequence thereof totally lost to the plaintiff; that the defendant so carelessly and negligently mined and removed the coal from the said seam on the premises leased to Cooper-Pocahontas Coal Company and within the territory encroached upon that 5, 000 tons now therein remaining and not mined and removed cannot now be mined and removed by this plaintiff, and in consequence thereof is totally lost to the plaintiff, but which could otherwise have been mined and removed by the plaintiff but for the careless and negligent manner in which parts of said seam of coal within the territory encroached upon were mined and removed by the defendant; that the 3, 000 tons and 5, 000 tons of coal so lost to the plaintiff are of the value of $1 per ton in place, making a total value of $8,000; that the defendant falsely represented unto the Pocahontas Coal & Coke Company, the common lessor of the plaintiff and defendant, and as well also falsely represented unto the plaintiff, that it had not mined, removed, or taken any of the coal from the land so leased to the plaintiff, nor had it committed any of the trespasses complained of; that the defendant has from the time of making the said several encroachments and of committing the said several trespasses thence hitherto fraudulently concealed the encroachments and trespasses committed by it from Cooper-Pocahontas Coal Company and from the plaintiff so that the plaintiff is not advised as to the specific times when all of the trespasses andencroachments complained of were committed by the defendant, and that, by reason of the false representations so made, and of the fraudulent concealment thereof, by the defendant, neither Cooper-Pocahontas Coal Company nor the plaintiff discovered any of the trespasses and encroachments complained of until immediately prior to the institution of this action, nor was it reasonably possible for either Cooper-Pocahontas Coal Company or the plaintiff to have discovered the trespasses and encroachments so committed by the defendant until immediately prior to the institution of this action when the same were discovered by the plaintiff.
The second count contains substantially the same allegations as those contained in the first count, except in the second count it is charged that on or about the 1st day of January, 1918. and...
To continue reading
Request your trial