Cole v. Eastern Gas and Fuel Associates

• Decision Date: 26 August 1963
• Docket Number: No. 8960.,8960.
• Citation: 322 F.2d 506
• Parties: Albert H. COLE, Fred Lindsey and Luther E. Woods, Trustees of the Cole & Crane Real Estate Trust, Appellants, v. EASTERN GAS AND FUEL ASSOCIATES, a Massachusetts voluntary association, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

322 F.2d 506 (1963)

Albert H. COLE, Fred Lindsey and Luther E. Woods, Trustees of the Cole & Crane Real Estate Trust, Appellants, v. EASTERN GAS AND FUEL ASSOCIATES, a Massachusetts voluntary association, Appellee.

No. 8960.

United States Court of Appeals Fourth Circuit.

Argued June 5, 1963.

Decided August 26, 1963.

Selden S. McNeer, Jr., and S. S. McNeer, Huntington, W. Va. (Campbell, McNeer, Woods, Bagley & Emerson, Huntington, W. Va., on brief), for appellants.

John O. Kizer, Charleston, W. Va. (Woodroe, Kizer & Steed, Charleston, W. Va., on brief), for appellee.

Before SOBELOFF, Chief Judge, and HAYNSWORTH and BOREMAN, Circuit Judges

BOREMAN, Circuit Judge.

In this action instituted in the District Court for the Southern District of West Virginia, the two original plaintiffs were (1) Western Pocahontas Corporation and (2) Albert H. Cole, Fred Lindsey and Luther E. Woods, Trustees of the Cole & Crane Real Estate Trust, hereinafter referred to as Cole & Crane. Each plaintiff sought, respectively, to recover damages from Eastern Gas and Fuel Associates, hereinafter referred to as Eastern, for a subterranean trespass and the wrongful mining and removal of coal from its land, and statutory penalties¹ for mining coal within five feet of the southerly boundary line of its land. The District Court granted Eastern's motions for summary judgment and Cole & Crane alone prosecutes this appeal.

Eastern is the lessee of 6217.27 acres of coal land situate in Boone County, West Virginia, known as the Shephard tract, under leases originally made to it in 1928 and it has been conducting shaft mining operations in the Hernshaw seam of coal on that tract since 1928. Cole & Crane owns a tract of land containing 520 acres which adjoins the Shephard tract on the north. Western Pocahontas owns a tract of 1400 acres which adjoins the Shephard tract on the north and adjoins the Cole & Crane 520-acre tract on the east. The northerly line of the Shephard tract is commonly known as the Rutter and Etting line, hereinafter called the R & E line. It is the common property line between the Shephard tract and the 520-acre Cole & Crane tract, and also the common property line between the Shephard tract and the 1400-acre tract of Western Pocahontas.

During the period from 1943 to June 30, 1947, Eastern conducted coal mining operations on the Shephard tract immediately adjacent to the R & E line in the area of the Cole & Crane tract as that line was located by Eastern on its own maps. In 1947 Western Pocahontas had leased its coal lands to Eastern. By lease agreement dated January 1, 1949, Cole & Crane leased its 520-acre tract and the underlying Hernshaw seam to Eastern for coal mining purposes and, pursuant thereto, from July 1949 to June 11, 1953, Eastern conducted mining operations in the Hernshaw seam on the Cole & Crane tract and adjacent to the R & E line as plotted by Eastern.

The District Court's opinion,² to which reference is here made, contains a recital of certain pertinent facts which are briefly hereinafter stated.

During the time of the mining operations last mentioned above, pursuant to the provisions and requirements of the Cole & Crane lease, Eastern submitted quarterly to the lessors copies of mine maps reflecting the mining operations of Eastern on the Cole & Crane tract. All of these mine maps showed the location of the R & E line as it had been plotted by Eastern for many years. Prior to 1960, the mine maps submitted by Eastern to Cole & Crane indicated the location of the common property line between the Cole & Crane 520-acre tract and the Western Pocahontas 1400-acre tract in pencil, which penciled lines were changed from time to time by Eastern and were assumed by Cole & Crane to represent only the tentative or approximate location of the dividing line, particularly in view of the fact that at those times no mining operations were being conducted by Eastern in the vicinity of the dividing line between Cole & Crane and Western Pocahontas. However, in February 1960 a mine map was received by Cole & Crane from Eastern upon which this dividing line was drawn in ink, thus indicating to Cole & Crane that Eastern intended to show the line's exact location. As the southern end of the common property line between Cole & Crane and Western Pocahontas appeared to extend southerly over and beyond the R & E line some distance into the Shephard tract, some question was raised in the minds of Cole & Crane engineers as to the accuracy of the location of the R & E line as it had been shown by Eastern. Accordingly, in November 1960, after conferences between and among the mining engineers regularly employed by Western Pocahontas, Cole & Crane and Eastern, Cole & Crane employed J. M. McCoy, a registered mining engineer, to make an accurate field survey in the area to determine whether or not Eastern, in its subterranean mining operations in the Shephard tract, had trespassed and encroached upon the Cole & Crane tract. After conducting an extensive and time-consuming survey, including much record research and field work, and correlating his findings with the below-surface mining operations and maps of Eastern, McCoy reported to Cole & Crane on August 16, 1961, that the true R & E line was roughly 160 feet south of the R & E line as theretofore located by Eastern. As a result of this alleged error in the location of the R & E line, the engineer's report disclosed that Eastern, during its mining operations on the Shephard tract, had trespassed and encroached upon the Cole & Crane tract to the extent that it had mined and removed approximately eighteen acres of coal for which Cole & Crane had not been paid.

The District Court, 213 F.Supp. 657, at 661, stated:

"The leases between the plaintiffs Cole & Crane and Western Pocahontas and Eastern required that the lessee employ a competent mining engineer to make periodic mine surveys giving directions and courses of entries and other particulars of the mining operation, and to make accurate maps thereof which would be subject to the inspection of the lessors. The maps furnished by Eastern to the plaintiffs were made pursuant to this requirement of the leases and both Western Pocahontas and Cole and Crane relied upon the maps as certified. While these maps and surveys disclosed the pattern and extent of the mining operations, they could not on their face disclose any possible encroachment. To make such a determination it would have been necessary to conduct a field survey on the surface and correlate it with the mining operations as shown by the maps in the manner employed by Mr. McCoy in 1961. Under their leases, Western Pocahontas and Cole and Crane also had the privilege of making visual inspections of Eastern\'s mining operations in the Hernshaw tract, and such inspections were made by representatives of the lessors commencing soon after the inception of their respective leases and continuing during the entire course of mining operations under said leases. The primary purpose of these inspections was to verify the fact that the lessee was removing all mineable coal of workable thickness and was otherwise using careful and workmanlike mining techniques. Again, while these visual inspections would disclose the physical removal of the coal and the manner in which it had been performed, they would not disclose any encroachments unless they likewise were correlated with a surface survey." (Emphasis supplied.)

As a result of the reported findings of McCoy, the original plaintiffs instituted this action on December 28, 1961. Eastern moved for summary judgment on the ground that the period of the statute of limitation applicable to an action for damages, based upon subterranean trespass and for the wrongful mining and removal of coal, is two years, and that the period of the statute of limitation applicable to actions for penalties imposed by the West Virginia statute is one year. Upon oral argument before this court, counsel for Cole & Crane expressly abandoned its appeal from the District Court's order granting summary judgment with respect to the claim for statutory penalties, admitting that Cole & Crane had actual knowledge of the alleged wrongful mining more than one year before instituting this action. Therefore, the only issue now before this court for determination is the correctness of the District Court's grant of summary judgment with respect to the principal claim for damages. The parties are agreed that the period of the applicable West Virginia statute of limitation of actions is two years.³ Therefore, the question for determination is whether the District Court erred in applying the two-year statute of limitation, as a matter of law, in granting Eastern's motion for summary judgment. We conclude that it did.

It is apparently undisputed that the trespass, if any, occurred more than two years prior to December 28, 1961, the date of the institution of this action, and prior to the execution of the Cole & Crane lease to Eastern on January 1, 1949. The District Court correctly stated the applicable law as follows:

"In the area of subterranean trespasses West Virginia subscribes to the rule prevailing generally in this country to the effect that the statute of limitations begins to run only from the

...