Clayborn v. Camilla Red Ash Coal Co. Inc

• Decision Date: 18 November 1920
• Parties: CLAYBORN et al. v. CAMILLA RED ASH COAL CO., Inc., et al.
• Court: Virginia Supreme Court

105 S.E. 117

CLAYBORN et al.

v.CAMILLA RED ASH COAL CO., Inc., et al.

Supreme Court of Appeals of Virginia.

Nov. 18, 1920.

On Petition for Rehearing, March 24, 1921.

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Incorporeal Hereditament.]

Prentis, J., dissenting.

Appeal from Circuit Court, Russell County.

Suit by W. F. Clayborn and others against the Camilla Red Ash Coal Company, Incorporated and others. From decree denying relief, plaintiffs appeal. Reversed.

G. B. Johnson, of Honaker, and S. H. & Geo. C. Sutherland, of Clintwood, for appellants.

Bird & Lively, of Lebanon, McClaugherty, Scott & Richardson, of Bluefield, for appellees.

KELLY, P. This is a suit in equity, brought by the appellants, W. F. Clayborn and others, against the appellee Camilla Red Ash Coal Company for an injunction and accounting. The decree appealed from denied the relief sought.

The appellants are the owners in fee of a tract of land containing about 8 acres, known as the Helton tract, except the coal thereon, which belongs to the appellee under a deed made in 1887, conveying "all the coal on, in or under" the land, "with the right to mine and remove" the same. Adjoining this Helton tract on the west, the company owns in fee a tract of 2 3/4 acres; and adjoining the former on the east the company owns and operates a coal lease upon what is known as the Burk land. On the 2 3/4-acre tract the company has a coal tipple and a mine open-ing, or drift mouth, at a point which for convenience we may designate as "A." From that point it has driven an underground haulway which extends east about 75 feet through the 2 3/4-acre tract to the line of the Helton land, and then all the way through the latter and beyond to a second drift mouth at a point which we may designate as "B" on the Burk land, about 40 or 50 feet beyond the east line of the Helton tract. Thence the haulway extends a short distance in a northeasterly direction over the surface of the Burk tract to a third opening or drift mouth, which we may designate as "C, " and from the latter the coal company has projected and extended its underground mining in such way as that it is now bringing out through the last named drift mouth at C coal mined from both the Burk tract and the Helton tract, and conveying all of it through the Helton tract by means of the underground haulway between the points A and B, as designated above. Until the haulway between these two points was completed, the Helton tract was mined from entries or rooms leading off from that haulway, and during that time the coal mined from the Burk tract was brought from the drift mouth at C to the tipple at A over a surface route located in part on appellants' land, and used over that land under a contract pursuant to which the appellants were paid the sum of 10 cents per ton for all coal thus transported. After the underground haulway reached the drift mouth at B, however, the plan of operation was changed, and since then the Helton tract has been mined from the east side through entries leading off from the haulway extending back from the drift mouth at C on the Burk tract, and the entire output from both tracts has come through the Helton haulway to the tipple at A. The evidence is conflicting as to the exact proportion, but it is conceded that the company is taking considerably more coal from the Burk tract than from the Helton tract. All of the coal has been taken out of the haulway between A and B from the upper to the lower side of the seam, and in addition thereto some of the underlying stone has been removed, so that the track through the mine is resting upon the substratum, and not upon any part of the coal vein.

Considerable attention was given in the argument to the change in the manner of mining the Helton tract, the company contending that the change was made because the dip of the coal seam makes it best to mine the property from the east side, and the appellants, on the other hand, contending that the real reason for the change was to afford a plausible pretext for hauling the coal from the Burk land through the main haul-way. In our view of the case, however, this question is not one of controlling importance. It does not affect the legal rights of the parties. It might, in some cases, be entitled to consideration in determining whether equity should grant or refuse an injunction.

The accompanying sketch is not drawn to scale, nor does it purport to show the comparative acreage of the tracts, nor the exact bearings and distances, but it will serve to accurately illustrate the situation.

When the company completed the haulway from A to B and began to haul coal from the Burk land through the Helton tunnel, the appellants protested, claiming that the company had no right to use the tunnel for any purpose except such as was connected with the mining of coal on that tract. The company disregarded the protest, and this suit followed.

The question thus arising is full of interest and importance. It is new in Virginia, but has been frequently passed upon under varying facts and circumstances in cases arising in England and in this country. The prevailing, if not wholly unbroken, current of authority supports the general proposition that a grantee of coal in place is the owner, not of an incorporeal right to mine and remove, but of a corporeal freehold estate in the coal, including the shell or containing chamber, and that as such owner he has the absolute right, until all of the coal has been exhausted, to use the passages opened for its removal for any and all purposes whatsoever, including in particular the transportation of coal from adjacent lands, so long as he operates and uses the passages with due regard to the rights of the surface owner. See MacSwinney. on Mines, 67; 2 Snyder on Mines, § 1010, p. 853; 18 R. C. L. 1149; 20 Am. & Eng. Ency. L. (2d Ed.) 774; 27 Cyc. 699; 3 Lindley on Mines (3d Ed.) p. 2008, § 813a; Proud v. Bates, 34 L. J. Ch. N. S. 406; Hamilton v. Graham, L. R. 2 Sc. & Div. App. 166; Lillibridge v. Lackawanna Coal Co., 143 Pa. 293, 22 Atl. 1035, 13 L. R. A. 627, 24 Am. St. Rep. 544; Westerman v. Penn. Salt Mfg. Co. 260 Pa.vl40, 103 Atl. 539; Armstrong v. Maryland Coal Co., 67 W. Va. 589, 69 S. E. 195; Bagley v. Republic Iron & Steel Co., 193 Ala. 219, 69 South. 17; Schobert v. Pittsburg Coal & Mining Co., 254 Ill. 474, 98 N. E. 945, 40 L. R. A. (N. S.) 826, Ann. Cas. 1913B, 1104; Moore v. Indian Camp Coal Co., 75 Ohio St. 493, 80 N. E. 6; Madison v. Garfield Coal Co., 114 Iowa, 56, 86 N. W. 41.

We are unable to follow to their full extent the authorities upon this question, notwithstanding their high source aud formidable array. They seem to us unsatisfactory and illogical in themselves, and at variance with fundamental legal principles. In taking this position, we are not unmindful of the credit which ought to be given to a long line of judicial precedent, and have broken away from it in this case with reluctance and after much deliberation. The question, however, as already indicated, is an open one in Virginia. No rule of property can be said to have arisen in this state upon the subject. With particular reference to the case in hand, it cannot even be argued that the grantee of the coal may have contracted upon the faith of the line of decisions in other American states, for the coal on the Helton tract was severed by a deed made in 1887 to the coal company's predecessor in title, and that was prior to any adjudication on the subject in this country. The older cases of Consolidated Coal Co. v. Schmisseur, 135 Ill. 371, 25 N. E. 795, and Genet v. Delaware & H. Canal Co., 122 N. Y. 505, 25 N. E. 922, sometimes cited for the proposition, are not in point. The former did not pass upon the legal rights of the parties, but merely held that under the terms of the deed for the coal, and under the peculiar facts of the case, a court of equity ought not to enjoin the grantee of the coal on a certain tract of land from using the entries and shaft on that track for the transportation of coal from adjacent lands. The latter (the New York case) involved a contract which expressly conferred on the mine owner the right here in question.

We are therefore not bound by precedent in this case, and are at liberty to follow the view which seems to us most in accord with right and justice and with the legal principles applicable to the question.

Undoubtedly the grantee of coal in place owns a corporeal hereditament; but all the American authorities agree that the right of the grantee to use the space left by the removal of coal terminates and the space reverts to the grantor when the coal has been exhausted. If, as contended, the conveyance of the coal carries with it the stratum above and below the coal—the containing chamber —why should the ownership of the space terminate as soon as all of the coal on the tract has been mined? We think the true and rational view is that the reverter takes place because the grantee has never at any time had a corporeal estate in the containing walls, and that the conveyance carries the estate in the coal only, with the necessary incidental easement to use the containing walls for support and for the purpose of getting it out, just as it carries the right to sink a shaft or drive an opening when necessary upon and through the surface to reach and remove the coal. We are unable to see any substantial difference between the use of a mine track in the mine which rests upon the stratum or earth below the coal and a tramway outside of the mine resting upon the surface. The right to use both, if both are reasonably necessary, when not expressly granted, is always implied in the deed for the coal, and yet the unmistakable result of the authorities, including those which hold that the tracks in the mines may be used to haul coal from adjoining lands, is that mining operations on the surface must be confined to the coal on the particular tract.

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