Chafin v. Coal, (No. 7367)

• Court: Supreme Court of West Virginia
• Writing for the Court: HATCHER.
• Citation: 113 W.Va. 823
• Decision Date: 02 May 1933
• Docket Number: (No. 7367)
• Parties: Mary Chafin v. Gay Coal & Coke Company

113 W.Va. 823

Mary Chafin
v.
Gay Coal & Coke Company

(No. 7367)

Supreme Court of Appeals of West Virginia.

Submitted April 19, 1933.
Decided May 2, 1933.
(Rehearing denied June 9, 1933)

[113 W.Va. 823]

1. Appeal and Error

"The decision of a court of final resort upon a given stare of facts becomes the law of the case in regard to such facts." Herman, The Law of Estoppel, page 118.

2. Damages

In order to warrant a substantial recovery in a tort action, the plaintiff must show a legal injury and a perceptible resultant damage. "The wrong done and the injury sustained must bear to each other the relation of cause and effect." Warwick v. Hutchinson, 45 N. J. L. 61, 65.

Litz, Judge, absent. Error to Circuit Court, Logan County.

Suit by Mary Chafin against the Gay Coal & Coke Company. To review an adverse judgment, defendant brings error.

Judgment reversed, and cause remanded for new trial. Chas. L. Estep, for plaintiff in error.

Livezey, Uogsett, McNeer & Delaney, for defendant in error.

[113 W.Va. 824]

Hatcher, J ljdge:

This is an action of trespass on the case to recover damages for an alleged unlawful use of plaintiff's property. The plaintiff was awarded a judgment of $2,632.41, and a writ of error was granted the defendant.

This action is the aftermath of the chancery suit between the same parties, reported in 109 W. Va. 453, 156 S. E. 47, which see for a detailed statement of the matters connected with the litigation and for a map of the lands subjected by the use. Briefly, the defendant is the lessee of the coal on the Mounts tract of 850 acres with the usual surface rights necessary to mine the coal of that tract. The plaintiff is an heir of the original lessor and shares in the royalty from the operation. The tract was partitioned after the coal plant was constructed, and the plaintiff now owns lots Nos, 17 and 11, containing 4.4 acres and 2.14 acres, respectively. These lots are situate next to the railroad on the so-called front of the tract. Five tenement houses and other necessary improvements are on lot 17. The sand house is on lot 11 and the railroad "supply track" crosses it. All of the improvements on lots 17 and 11 were made by defendant in connection with the operation of the Island Creek Seam on the 850 acres. That seam was worked diligently by defendant (according to former opinion) from 1905 to 1927, during which the coal was all mined except that contained in the pillars. Due to pressure, the pillar coal was not firm and as a business expediency defendant leased the Island Creek coal in an adjoining tract of 151 acres, and mingled the two coals in order to dispose of the pillar coal. With the exception of plaintiff, permission was obtained from each of the several owners of the lots crossed by defendant's tramway, to haul the coal from the 151 acres over the 850 acres. Plaintiff asked $40,000.00 of defendant for her interest in the Mounts estate, which was refused. At that time (1927) she did not own lot 11, but did own lot 17, which was then crossed by the tramway. Upon rejecting plaintiff's price, the defendant at great expense moved its tramway off lot 17. The plaintiff subsequently acquired lot 11. Nothing whatever was placed on either of the two lots after the 151 acres was leased.

In the former suit, the plaintiff sought to enjoin defendant from using her lots, etc., for any purpose connected with min-

[113 W.Va. 825]

ing and transporting the coal from the 151 acres, on the ground that such use was an additional and excessive burden on her property and was a trespass. We determined in that suit as follows: "It is questionable if there is any additional servitude on lots 11 and 17. The use complained of cannot be considered as a. trespass, for defendant is there by right. On the other hand, plaintiff is benefited by the continuous and successful operation of the mine. * * * Equities must be balanced. And if the injury done to a servitude by grant is capable of being ascertained and compensated at law and inconvenience and loss to other party would be serious, generally the bill will be dismissed reserving to plaintiff his right to proceed at law. * * * To enjoin defendant from bringing its coal from the 151-acre tract through and over the Mounts land to its tipple simply because of this slight additional servitude on the surface of plaintiff's lots would occasion serious loss to defendant and would afford plaintiff very little benefit. The decree (below refusing injunction) will be modified to the extent only of saving to plaintiff her right to sue at law for damages, and as modified, will be affirmed."

Our former holding became the law of the case. See generally Price v. Campbell, (Va. 1804) 5 Call 115; Bank v. Craig, (Va. 1835) 6 Leigh 399; Camden v. Werninger, 7 W. Va. 528; Henry v. Davis, 13 W. Va. 230; McCoy v. McCoy...