Cole v. Ross Coal Company

• Decision Date: 02 May 1957
• Docket Number: Civ. A. No. 823.
• Citation: 150 F. Supp. 808
• Court: U.S. District Court — Southern District of West Virginia
• Parties: Albert H. COLE, Charles H. Stephens, Jr., and Louise K. Laws, Trustees of Cole & Crane Real Estate Trust, Plaintiffs, v. ROSS COAL COMPANY, a Corporation, Defendant.

150 F. Supp. 808

Albert H. COLE, Charles H. Stephens, Jr., and Louise K. Laws, Trustees of Cole & Crane Real Estate Trust, Plaintiffs, v. ROSS COAL COMPANY, a Corporation, Defendant.

Civ. A. No. 823.

United States District Court S. D. West Virginia, at Huntington.

May 2, 1957.

S. S. McNeer, Huntington, W. Va., for plaintiffs.

E. A. Marshall, Huntington, W. Va., for defendant.

HARRY E. WATKINS, District Judge.

This is an action for declaratory judgment brought under 28 U.S.C.A. § 2201, seeking construction of a deed and a declaration of the rights of the parties thereunder. Plaintiffs are trustees of a real estate trust created in 1916, and are citizens of Indiana and Ohio. Defendant is a West Virginia corporation.

The deed in controversy, dated August 10, 1939, concerns real estate and underlying coal seams situated in Logan County, West Virginia, in the Southern District of West Virginia. Plaintiffs seek a judicial determination that under that instrument plaintiffs have the exclusive right to use the surface of that property, and that defendant's right to use the surface of the tract involved is limited to placing thereon (1) bore holes for pumping water; (2) airshafts for ventilating fans; (3) travel ways and hoist ways for workmen and supplies; (4) prospecting holes; (5) power lines; and (6) electric substations, all in connection with mining the underlying coal which defendant owns. Defendant denies plaintiffs' exclusive right to the use of the surface of that tract, or that defendant's rights are so limited. A justiciable controversy exists between the parties in that both lay claim to the superior right to build a coal mining tipple upon the same tract of land. The mining rights in dispute exceed $3,000 in value, exclusive of interest and costs.

Plaintiffs have made a motion for summary judgment under Rule 56, Federal Rules of Civil Procedure, 28 U.S. C.A., asserting that there is "no genuine issue as to any material fact as appears from the pleadings and the admissions made by defendant in its brief." Any admissions made in briefs of counsel cannot be considered on this motion for summary judgment, because such briefs are not a part of the record. Sardo v. McGrath, 90 U.S.App.D.C. 195, 196 F. 2d 20, 22-23; Goldman v. Summerfield, 94 U.S.App.D.C. 209, 214 F.2d 858, 859; Allen v. Radio Corporation of America, D.C.D.Del., 47 F.Supp. 244, 245-246; 3 Barron & Holtzoff, Federal Practice and Procedure, Rules Ed. section 1236, page 91; 6 Moore's Federal Practice, 2d Ed., § 56.11(1), page 2062. However, plaintiffs have incorporated the admissions to which they refer in an affidavit of one Tom Stark, who is Chief Engineer for the plaintiffs and who avers he has personal knowledge of the facts, and inasmuch as the defendant has filed no counter-affidavit, those facts will be accepted by the Court as true for the purpose of this motion.

Looking to the complaint, answer, the above-mentioned affidavit, and certified copies of two deeds dated 1939 and 1954 which were admitted into evidence without objection, the voluminous facts clearly indicate that there are no substantial issues of fact, and plaintiffs' motion must be granted in part and denied in part. The facts are these:

Immediately prior to the execution of the deed in question, defendant owned all the coal underlying a 217½-acre tract of land called "Rossmore" tract, and West Virginia Coal & Coke Corporation, plaintiffs' predecessor in title, owned the surface of that same tract. Furthermore, West Virginia Coal & Coke had leased of the defendant all of defendant's coal under that 217½-acre tract. In other words, defendant owned the coal and had a lessor's interest in the lease while West Virginia Coal & Coke had all other right, title and interest in the property so far as is pertinent here, including a lessee's interest in the lease. There are several minable seams of coal under this land, at various depths. In 1939, West Virginia Coal & Coke was operating in the Island Creek seam, which is one of the middle seams, removing the coal through a tipple located on an 18-acre sector of this tract. This 18-acre site is the only portion of the surface where a tipple and appurtenant mining improvements can be practicably erected, and the site is marked in red on a map filed with the complaint, marked Plaintiffs' Exhibit B. On August 10, 1939, a deed drawn by Mr. E. A. Bower, counsel for West Virginia Coal & Coke, was executed by four parties: (1) the defendant; (2) R. F. Carson, of Huntington, W. Va.; (3) West Virginia Coal & Coke Corporation; and (4) The First National Bank of the City of New York and Alexander C. Nagle, Trustees. (The rights of parties (2) and (4) are not involved here, and the deed will hereafter be treated as if only between defendant and West Virginia Coal & Coke.) By this document, the lease between defendant and West Virginia Coal & Coke was terminated and the parties' interests were realigned in this manner: West Virginia Coal & Coke was given ownership in fee of the surface and all coal in the Island Creek and overlying seams; defendant was given all the coal underlying the Island Creek seam, along with certain specified surface rights for mining the coal, i. e., bore holes for pumping water, airshafts, etc., as listed above.

The record indicates that West Virginia Coal & Coke terminated operations on the 217½-acre tract in 1945, and by deed of July 14, 1954, conveyed to plaintiffs all the unmined coal in the Island Creek and overlying seams within the 217½-acre area. The 1954 deed also purported to convey to plaintiffs the right to use the 18-acre tipple site previously occupied by West Virginia Coal & Coke, for the purpose of mining coal from the Island Creek and overlying seams in the 217½-acre tract and any and all coal from adjoining tracts. Defendant contends West Virginia Coal & Coke Company's rights granted plaintiffs by the 1954 deed were inferior to the rights of the defendant with respect to the 18-acre tipple site. The 217½-acre tract has no substantial value except for its minerals, but it would be wholly unfeasible to mine the remaining Island Creek vein in that tract, and unprofitable to mine the next lower mineable vein (No. 2 Gas) from that tract alone. The value of the tract lies in the tipple site, which can be utilized to bring to the surface the coal from the No. 2 Gas seam of the surrounding tracts as well as the No. 2 Gas seam from the 217½-acre tract.

Both parties say that the deed is clear and unambiguous. Defendant says that when you read the whole deed, it expresses a clear intent that defendant has the right not only to mine the underlying seams of coal from under the 217½-acre tract, but also to bring coal from the same vein from other adjacent tracts and then take it up through the surface. Plaintiff says that the deed shows the opposite intention. Defendant has asked for a jury trial, if the deed is ambiguous.

The question of whether an ambiguity exists in a contract is to be determined by the Court as a matter of law. United States v. Northern Pacific Railway Co., 8 Cir., 188 F.2d 277. In Jackson v. Texas Company, 10 Cir., 75 F. 2d 549, 551, the Court states:

"Whatever may be the merit or plausibility of the respective arguments of counsel, the fact remains that the correct decision of this case depends upon the discovery and adoption of the true meaning of the deed * * *. The true meaning of the deed can be arrived at only through the consideration of the language used in it, in the light of the situation of the parties under the circumstances existing at the time of the execution of the deed, together with all fair inferences to be drawn from this situation and these circumstances."

And as stated in National Pigments & Chemical Co. v. C. K. Williams & Co., 8 Cir., 94 F.2d 792, 795, instruments

"are not rendered ambiguous by the fact that the parties do not now agree upon the proper construction to be given them. They were deliberately entered into, the language is clear, and its meaning can easily be determined from a consideration of the simple and harmonious facts with which they deal."

The 21-page deed of 1939 describes fully the relative positions of the four parties to the deed, both before and after the effective date of the deed; other background facts are set forth in the pleadings and affidavit, and are not denied. Defendant has not filed any counter-affidavit setting up any facts which would create an issue of fact, or throw any light upon the situation of the parties or the circumstances existing at the time of the execution of the deed. When one reads the deed in the light of the uncontroverted facts, the intent of the parties is clear and the deed is unambiguous. Extrinsic evidence and a jury trial would add nothing in construing this deed, as there are no issues of fact to be resolved.

The issues here are these: First, are the enumerated mining rights granted defendant by the 1939 deed in addition to, or in substitution for, the implied mining rights which an owner of coal normally possesses as an incident of his ownership? Secondly, if defendant is found to have surface rights in addition to those listed in the 1939 deed, including the right to use the surface to build a tipple, are those rights exclusive, or superior to plaintiffs' rights, or subordinate to plaintiffs' rights? Plaintiffs argue that in reading the deed, the clear intent of the parties may be seen, and that was to limit defendant to those special mining rights listed, with West Virginia Coal & Coke given an otherwise exclusive right to use the surface. Defendant urges that the enumerated mining rights merely supplement the usual implied right to mine the coal.

Defendant has worked out a plan whereby the No. 2 Gas seam of coal underlying a group of contiguous tracts will be leased together for one large operation, with the coal brought through the No. 2 Gas seam of the 217½-acre tract and to the surface...