Buffalo Min. Co. v. Martin

• Decision Date: 04 April 1980
• Docket Number: No. 14348,14348
• Citation: 165 W.Va. 10,267 S.E.2d 721
• Parties: BUFFALO MINING COMPANY, a corporation, v. James MARTIN et al.
• Court: West Virginia Supreme Court

Page 721

267 S.E.2d 721

165 W.Va. 10

BUFFALO MINING COMPANY, a corporation, v. James MARTIN et al.

No. 14348.

Supreme Court of Appeals of West Virginia.

April 4, 1980.

Dissenting Opinion July 9, 1980.

Syllabus by the Court

1. "This Court will not consider questions, nonjurisdictional in their nature which have not been acted upon by the trial court." Syllabus Point 4, Wheeling Downs Racing Association v. West Virginia Sportservice, Inc., W.Va., 216 S.E.2d 234 (1975).

2. Where there has been a severance of the mineral estate and the deed gives the grantee the right to utilize the surface, such surface use must be for purposes reasonably necessary to the extraction of the minerals.

3. In order for a claim for an implied easement for surface rights in connection with mining activities to be successful, it must be demonstrated not only that the right is reasonably necessary for the extraction of the mineral, but also that the right can be exercised without any substantial burden to the surface owner.

James W. St. Clair, Marshall & St. Clair, Huntington, for appellants.

John C. Valentine, William G. Wilson, Valentine, Wilson & Partain, Logan, for appellee.

MILLER, Justice:

James and Toni Martin, surface owners of property situated in Wayne County, appeal a judgment of the Circuit Court of Wayne County permitting Buffalo Mining Company (Buffalo), lessee of coal beneath the Martins' land, to construct an electric transmission line on the surface. The central issue is whether Buffalo had the authority under its mining rights to construct the power line. For the reasons set forth, we affirm the judgment.

Buffalo acquired its mining rights in a coal lease in 1969 from Wayne County Land and Mineral Company, which obtained the coal and other mineral rights underlying the Martins' property from the successors in interest of the grantees of an 1890 mineral severance deed. The key clause in the 1890 deed relates to the right of the mineral owner to utilize the surface of the land in connection with mining activities. ¹

Buffalo is involved in mining a large tract of coal, part of which is located under the Martins' property. In order to facilitate the ventilation of its coal mine, Buffalo hired a construction company to erect an electric transmission line on the Martins' land. Appellant James Martin obstructed the project. On the basis of its assertion that the power line was necessary for ventilation of the mine, Buffalo sought and was granted a temporary and then a permanent injunction from the Circuit Court of Wayne County which prohibited the Martins from interfering with the erection of the line. It is from this judgment that the Martins appeal.

The Martins assert two grounds for reversing the Circuit Court. First, they contend that the transmission line will be used to supply power to a mine ventilation shaft built by Buffalo outside the boundaries of the Martins' land. They urge that the power line easement is not for any mining purpose within their tract, and consequently not encompassed in the severance rights of the 1890 deed. They further contend that the power line as constructed constitutes an unreasonable use of the surface. Second, the Martins assert that the 1890 deed is silent as to the right of the mineral grantees, and those claiming under them, to erect an electric power line, and that, from a technological standpoint, such use would not have been contemplated by the parties to the severance deed.

I

Initially, we do not address the first contentions raised by the Martins, simply because the record reveals that the Martins did not advance these issues, which are factual in nature, in the trial court. They are: whether the power line was constructed in an unreasonable manner and whether such an easement could be used for mining operations outside the boundaries of the Martin property. Buffalo alleged in Paragraph 5 of its complaint that the ventilation shaft for the mine was legally required ² in "the ordinary course of . . . the mining of coal from (Buffalo's leasehold interests), including the coal underlying (the Martins' land)." The Martins in their answer stated they were "without knowledge or information" as to this allegation.

The final order of the Circuit Court, however, reflects that at the time the case was submitted, "(c)ounsel for (the Martins) stated to the Court that there was no factual issue for decision by the Court since the factual allegations of the Bill of Complaint were not disputed by (the Martins), and could by taken and treated as true . . . ." The Martins contended at oral argument before this Court that this statement in the final order was incorrect. The involved language in the order was a factual conclusion to the effect that the parties did not have any factual dispute.

No discovery was taken by either party and no evidentiary hearing was held. The matter was submitted to the trial court solely on one legal issue, whether the deed language was sufficiently broad to encompass an implied easement for an electric line on the surface of the Martin property. The court concluded that such an easement could be implied from the severance deed.

The Martins made no motion under Rule 52(b) of the West Virginia Rules of Civil Procedure (RCP), for an amendment to that portion of the order finding that there was no factual dispute between the parties. Nor was any subsequent motion made under Rule 60, RCP, to obtain relief because of error or mistake in the trial court's findings. Absent such procedures, "(t)his Court will not consider questions, nonjurisdictional in their nature, which have not been acted upon by the trial court." Syllabus Point 4, Wheeling Downs Racing Association v. West Virginia Sportservice, Inc., W.Va., 199 S.E.2d 308 (1973), appeal after remand, W.Va., 216 S.E.2d 234 (1975). Accord, Dixon v. American Industrial Leasing Co., W.Va., 205 S.E.2d 4 (1974); Hamilton Watch Co. v. Atlas Container, Inc., 156 W.Va. 52, 190 S.E.2d 779 (1972); City of Huntington v. Chesapeake & Potomac Tel. Co., 154 W.Va. 634, 177 S.E.2d 591 (1970).

II

In determining whether the 1890 deed can be construed by implication to permit a surface easement for an electric line, we note that the deed language in regard to surface use is rather comprehensive and includes the right to "telephone and telegraph lines."

It is generally recognized that where there has been a severance of the mineral estate and the deed gives the grantee the right to utilize the surface, such surface use must be for purposes reasonably necessary to the extraction of the minerals. Adkins v. United Fuel Gas Co., 134 W.Va. 719, 61 S.E.2d 633 (1950); Squires v. Lafferty, 95 W.Va. 307, 121 S.E. 90 (1924); Porter v. Mack Manufacturing Co., 65 W.Va. 636, 64 S.E. 853 (1909); 54 Am.Jur.2d Mines and Minerals § 210; 58 C.J.S. Mines and Minerals § 159; R. Donley, Coal Mining Rights and Privileges in West Virginia, 52 W.Va.L.Rev. 32 (1949).

Appellants rely heavily on three decisions in which this Court refused to interpret language granting surface rights in connection with deep mining as including the right to strip or auger the surface for coal. Brown v. Crozer Coal & Land Co., 144 W.Va. 296, 107 S.E.2d 777 (1959); Oresta v. Romano Bros., Inc., 137 W.Va. 633, 73 S.E.2d 622 (1952); West Virginia-Pittsburgh Coal Co. v. Strong, 129 W.Va. 832, 42 S.E.2d 46 (1947). These decisions were each based on two grounds. First, at the time of the original severance deed, neither strip nor auger mining was known and therefore could not have been within the contemplation of the parties. Second, and of even more importance, was the fact that these mining methods virtually destroyed the surface for its normal use, as stated in Strong :

"Certainly if the owner of the surface has a proprietary right to subjacent support (36 Am.Jur. 405), he has at least an equal right to hold intact the thing to be supported, i.e., the surface, in the absence of a clearly expressed intention to the contrary." (129 W.Va. at 837, 42 S.E.2d at 50).

We do not believe that these three decisions are controlling in the present case. The issue here presented involves no claim of any widespread destruction of the surface, but whether the utilization of the surface for an electric power line can be inferred as a reasonable use within the context of the severance deed language.

We are not cited any direct authority on this question from our past decisions. The issue appears to have been raised elsewhere in only a few cases. Creasey v. Pyramid Coal Corp., 116 Ind.App. 124, 61 N.E.2d 477 (1945), involved a 1905 severance deed which contained rather broad surface easements for mining but did not provide the right for an electric power line. Finding the right to such an easement by implication, the court stated:

"At the time of the grant the operation of coal mining machinery by electricity was unknown. There was, therefore, no necessity for mentioning this type of motivating power and the appurtenances necessary for its delivery nor for excluding them. The terms of the grant are so broad and all inclusive that it is clear to us that the grantors intended to give the grantees any and all rights reasonably necessary to the maintenance and operation of the said mine and, indeed, they included therein everything which at that time was known to be reasonably necessary . . . ." (116 Ind.App. at 130, 61 N.E.2d at 479-80). ³

The only other authority cited is Kentucky, where, without extensive discussion, the court found that general language in the severance deed granting the mineral owner the right to use portions of the surface in connection with mining activity was sufficient to permit an implied easement for electric power lines to supply power for the underground mining operation. Trivette v. Consolidation Coal Co., 296 Ky. 529, 177 S.W.2d 868 (1944); Flannery v. Utilities Elkhorn Coal Co., 282 Ky. 355, 138 S.W.2d 988 (1940); Wells v. North East Coal Co.,...