Bennett v. 3 C Coal Co., 17962

• Decision Date: 13 March 1989
• Docket Number: No. 17962,17962
• Court: West Virginia Supreme Court
• Parties: John BENNETT v. 3 C COAL CO. and Consolidation Coal Co.

Page 388

379 S.E.2d 388

180 W.Va. 665

John BENNETT v. 3 C COAL CO. and Consolidation Coal Co.

No. 17962.

Supreme Court of Appeals of West Virginia.

March 13, 1989.

Syllabus by the Court

1. "Whether [a] right of burial exists by deed or by mere license, so long as it exists and is not lawfully revoked or destroyed, it may be ... redressed and protected in our courts[.]" Syllabus Point 2, in part, England v. Central Pocahontas Coal Co., 86 W.Va. 575, 104 S.E. 46 (1920).

2. A cause of action will lie for the unlawful desecration of a grave site even though no disturbance of the body interred therein can be shown.

3. Damages for mental distress may be recovered by the next of kin for the disturbance or desecration of a relative's grave.

4. "In determining whether there is sufficient evidence to support a jury verdict the court should: (1) consider the evidence most favorable to the prevailing party; (2) assume that all conflicts in the evidence were resolved by the jury in favor of the prevailing party; (3) assume as proved all facts which the prevailing party's evidence tends to prove; and (4) give to the prevailing party the benefit of all favorable inferences which reasonably may be drawn from the facts proved." Syllabus Point 5, Orr v. Crowder, 173 W.Va. 335, 315 S.E.2d 593 (1983), cert. denied, 469 U.S. 981, 105 S.Ct. 384, 83 L.Ed.2d 319 (1984).

5. In order to secure punitive damages, a defendant must be shown to have engaged in a wilful, wanton, reckless, or malicious act.

6. "An objection to an adverse ruling on a motion in limine to bar evidence at trial will preserve the point, even though no objection was made at the time the evidence was offered, unless there has been a significant change in the basis for admitting the evidence." Syllabus Point 1, Wimer v. Hinkle, 383 W.Va. 660, 379 S.E.2d 383 (1989).

7. The better practice in civil cases is to avoid mentioning to the jury the amount sued for, but such disclosure alone may not be reversible error. However, in a case involving only damages for mental distress, disclosure of such information may result in reversible error where the verdict is obviously influenced by such statement.

W. Warren Upton, Stephen B. Farmer, J, K, H & O'F, Charleston, for appellant.

Brown H. Payne, Wilbert A. Payne, Payne & Payne, Beckley, Franklin D. Cleckley, Morgantown, for appellee.

MILLER, Justice:

Consolidation Coal Company (Consol) appeals from a judgment of the Circuit Court of Wyoming County denying its motion to set aside the verdict, or, in the alternative to grant a new trial, in a civil action seeking damages for the disturbance of graves in a family cemetery due to mining subsidence. The plaintiff, John Bennett, was awarded $250,000 in compensatory damages and $500,000 in punitive damages. Consol assigns a number of errors. For the reasons that follow, we reverse the judgment of the circuit court and remand for a new trial on the issue of damages.

I.

The plaintiff in this rather unusual case alleged that Consol's mining operations ¹ underneath a "family cemetery" caused subsidence and the disturbance of the graves of his relatives. The evidence indicated that many years ago, the plaintiff's father had leased farmland located in Wyoming County from the Pocahontas Land Company. It had been his father's wish that he and other members of the family be buried at a particular location on this property. Upon his death, the plaintiff's father was buried at that location, and over some fifty-eight years, about seventeen family members and relatives were buried in this area at sites selected by the plaintiff.

The most recent burial at this family cemetery occurred in 1981, some five years prior to the trial of this case. Most of the plaintiff's family members, including his father, mother, a brother, two sisters, and one son, are buried in the cemetery. The plaintiff, who was eighty-five years old at the time of trial, lived near the cemetery and had maintained it throughout the years.

The plaintiff testified that he first discovered cracks and holes in the graves when he visited the cemetery on July 30, 1983. Shortly after this discovery, he went to Consol's office in Wyoming County and talked with a company representative about what he had found. According to the plaintiff, the representative acknowledged that Consol had mined in the vicinity of the cemetery. A few days later, the representative came to the plaintiff's home and offered immediately to fill the cracks and holes with dirt and to plant grass seed.

The plaintiff's testimony was corroborated by a letter from a surface mine reclamation inspector, then employed by the Department of Natural Resources, who had investigated the conditions at the cemetery in response to a complaint by the plaintiff. The inspector's letter indicated that Consol had agreed, on a one-time basis only, to fill the cracks in the vicinity of the cemetery and to sow grass seed, but had not admitted any responsibility for the possible subsidence. The inspector stated that he had found no evidence of impropriety on Consol's part and noted that mining maps indicated a block of coal had been left under the cemetery.

The plaintiff's son, who had been a coal miner for thirty-two years, testified as an expert in underground mining. He was permitted to testify, over objection, that in his opinion the cracks had been caused by the coal being "mined out" from underneath the cemetery, which resulted in the roof of the mine caving in. He further testified that the subsidence might continue if the underground mining cavity had not become completely filled.

A second coal miner, unrelated to the plaintiff and with over thirty years of experience in the mines, testified that he had been to the cemetery many times and that the cracks may have been caused by underground mining. He also had observed that the cracks were increasing both in width and in length. The plaintiff also introduced the testimony of a surveyor, who expressed the opinion that a crack at the front of the cemetery definitely resembled cracks he had observed in the past that had been apparently caused by mining subsidence.

The plaintiff testified that he had experienced anxiety and had lost sleep as a result of thinking about the disturbance of the graves of his family members. Several of his children and other relatives testified that he had become very distressed and upset about the conditions of the graves at the cemetery. This matter had become the uppermost concern in his life and had prompted him to write letters and to speak about little else. A number of these witnesses testified that they had seen holes and cracks in the cemetery which were gradually increasing in size.

The plaintiff's daughter testified that she believed the graves should be moved because of the subsidence. This would require an exhumation of the bodies and the purchase of burial plots and coffins. The plaintiff's sister testified that the plaintiff also wanted to move the graves because of the condition of the cemetery.

Consol introduced the testimony of four witnesses. The reclamation inspector who had conducted the investigation in 1983 testified that he had observed no subsidence-related cracks in the cemetery disturbing graves, although he was of the opinion that one crack at the front of the cemetery may have been produced by mining subsidence. The inspector stated that Consol's mining maps indicated a block of coal had been left under the cemetery as required by state mining requirements. A section foreman who had worked in the mining operation around the cemetery testified that, to his knowledge, that part of the operation had been completed around September, 1972. He also testified that he had, at some unstated point in time, been in the coal mine and observed a block of coal remaining under the cemetery.

A mining engineer also testified concerning the mining map and indicated that a block of coal in front of the cemetery had been removed in September, 1982. He had not been in the mine to observe whether the block of coal shown on the map had, in fact, been left underneath the cemetery. An engineer employed as a regional manager of engineering and environmental affairs by Consol was the final defense witness. He testified from company records that the mining activity around the cemetery involved the Beckley seam of coal, which was about four feet thick and was located approximately 200 feet below the cemetery. Based on his experience with the full seam extraction utilized at this mining operation, the engineer stated that subsidence normally occurs within the first few days or weeks after the pillars of coal are removed. Based upon his review of mining records and inspection of the cemetery, he was of the opinion that only one crack, located at the front of the cemetery approximately twenty feet from the nearest grave, was possibly caused by mining subsidence.

II.

Before discussing the assignments of error, it is useful to review some of the general principles developed in this area of the law. The right one acquires in a cemetery lot is in the nature of a perpetual easement, as we pointed out in Sherrard v. Henry, 88 W.Va. 315, 320, 106 S.E. 705, 707, 21 A.L.R. 645, 649 (1921): "There is no doubt but that one who acquires a cemetery lot has some interest therein. He does not acquire the fee in the land. His interest is more in the nature of a perpetual easement, and it is likewise true that the exercise of this right is subject to the police power of the state."

Furthermore, in Syllabus Point 4 of Sherrard, we outlined how it is possible to acquire a cemetery lot through adverse possession:

"It is not necessary in order to the acquirement of a right in a burial lot by adverse possession that the same be fenced. If the limits of such claim are clearly defined by improvements upon the lot and by a slight barrier or ridge extending all the way around the same, and so...