Drummond. v. White Oak Fuel Co.

• Citation: 104 W.Va. 368
• Decision Date: 25 October 1927
• Docket Number: (No. 5919)
• Court: Supreme Court of West Virginia
• Parties: D. T. Drummond et al. v. White Oak Fuel Company

104 W.Va. 368

D. T. Drummond et al.

v.White Oak Fuel Company

(No. 5919)

Supreme Court of Appeals of West Virginia.

Submitted October 21, 1927.

Decided October 25, 1927.

1. Mines and Minerals "Surface," Without Qualifying Phrase in Deed, Ordinarily Means Only Superficial Part of Land.

The word "surface" when used without any qualifying phrase in a deed, ordinarily signifies only the superficial part of land. (p. 371.)

2. Same Absolute Support is Due Surface Tract, Unless Right Thereto is Impaired by Deed.

Absolute support is due a surface tract unless the right thereto is impaired by deed. (p. 372.)

3. Same Rule That Surface of Land is Entitled to Absolute Support Applies Only to Surface in its Natural State.

The rule of absolute support applies only to the surface "in its natural state". (p. 372.)

4. Same Damages for Diversion of Percolating Water Supplying Surface Spring or Well by Mining Operations, Unless Accompanied by Subsidence or Fissure of Surface, Cannot be Recovered.

The rule of absolute support has no application where percolating waters, supplying a surface spring or well, are diverted by mining operations conducted in the usual way, unless the diversion occurs in connection with a subsidence or fissure of the surface. If the surface is supported, the diversion is damnum absque injuria. (p. 372.)

Error to Circuit Court, Fayette County.

Action by W. T. Drummond and others against the White Oak Fuel Company. Judgment for defendant, and plaintiffs bring error.

Affirmed.

Osenton & Lee and C. R. Summer field, for plaintiffs in error.

Dillon, Malum & Holt, for defendant in error.

Hatcher, President:

The plaintiff is the owner of approximately six acres of surface in Fayette County. The defendant is mining a seam of coal thereunder. This is an action for damages to a well on the surface tract which plaintiff claims was drained by reason of the removal of the coal. The plaintiff secured a verdict for $1,500.00 which was set aside by the circuit court of said county.

Plaintiff's tract is a portion of twenty acres of surface which was severed from the minerals in 1896. William Duncan at that time owned the entire estate. He granted to B. F. Bibb (Tr.) "all the surface land and only the surface" of the twenty acres. The grantor reserved the right to use such parts of the surface "as is necessary to mine and transport the coal and minerals underlying such surface land". The deed contained no reservation of the minerals and no specific rights as to their removal, except the surface right stated above. There is nothing in the deed, therefore, to enlarge the grantor's common law rights of removal. It contains nothing to take from the surface owner his common law right of subjacent support.

The well is situate within a few feet of plaintiff's property line. It was drilled in February 1925. It is about six inches in diameter and one hundred seven feet deep. It contained about thirty-five feet of water until July 1, 1925, when it went dry. At the place where the well was drilled the coal is 515 feet below the surface. The well is over rooms 11 and 12 on the eighth left entry of defendant's mine. The coal was all mined out from these rooms, and the pillars "pulled" not later than October 1, 1924, which was several months before the well was drilled. The plaintiff testified that during June of 1925 he heard rumblings and felt the earth shake on several occasions. A witness for him stated that about June 1925 there was an increase of water in defendant's tenth left entry, and that there was considerable rock fall in the mine in July of 1925, but he knew of no falls closer to the eighth left in that month that some on the tenth left entry. (These two entries are 1200 feet apart.) One witness had never known of slate and rock falls in defendant's mine extending higher in the strata overlying the coal than 20 to 25 feet. Another witness had seen one fall occurring on the ninth left entry, in April 1925, which he estimated to extend as high as 75 feet. Defendant's superintendent testified that the falls in the mine did not ordinarily extend higher than 25 to 30 feet; that while the roof always fell in upon the removal of all the coal, he had never known such falls to extend to the surface of that particular mine; that he had never known the surface to be broken by falls in any mine which was 500 feet below the surface; and that the water from the eighth left did not drain into the tenth left entry. As to the drainage, however, he was contradicted by a witness for plaintiff.

The declaration charges the loss of the well water to the removal of the coal "underlying plaintiff's said land in the vicinity of plaintiff's said well" without leaving pillars of coal or artificial support. The evidence shows that immediately following removal of all the coal in this mine, the roof falls and continues to fall until it "arches" sufficiently to support the overhead strata. One of plaintiff's witnesses said: "The falls follow you as you take the coal out," Another: "Sometimes it falls just directly after the coal is taken out, and at other times it stands for I have known it to stand for several days." It would therefore seem that the interruption of the strata immediately overlying rooms 11 and 12 must have occurred on or within a few days afterOctober 1,.1924. As there was no diversion of the percolating waters from over those rooms at that time or for many months afterwards, it would seem that no connection direct or indirect is inferable between the removal of the coal therefrom and the injury to the well.

The plaintiff must rely on a disturbance of strata in defendant's mine on or near July 1, 1925. No fall was shown to have occurred about that date closer to the well than the tenth left entry 1200 feet from the rooms underneath the well. There is no evidence that the tenth left entry was under plaintiff's property. If not, there would be a variance between the allegation and proof. Even if we assume the tenth left to be under the plaintiff's property, what connection is there between an increase of water on the tenth left in June and the drainage of the well on July 1st? It was not shown that the jars and rumblings in June testified to by the plaintiff emanated from the tenth left entry or, in fact, came from defendant's mine. The plaintiff testified to no tremors or noises prior to October 1, 1924, during the period within which the pillars were being withdrawn from directly under the place where his well was afterwards drilled. He did not testify to any disturbances in April 1925 when the big fall occurred in the ninth left entry. It is hardly reasonable that falls of strata under and near his well should produce no noticeable effect on the surface or on the supporting sandstone, while falls more remote should affect it so seriously.

If it be assumed that the falls of strata on the tenth left did produce the jars and rumblings noticed by plaintiff in June, how do the phenomena of June account for the event of July 1st? There was no decrease of the wellwater in June. The plaintiff says the water drained out between 9 A. M. and 1 P. M. on July 1st, It would therefore seem likely that the diversion is due to something which occurred on the morning of July 1st. The plaintiff was at home that morning, yet he does not relate noticing any rumblings or jarrings at that time. The origin and the causes which direct the course and movements of percolating waters are ordinarily unknown and concealed. They are not discoverable from surface indications. The mystery of their movements, however, does not relieve plaintiff of the burden of proof. 40 C. J. 1202-3. He cannot recover even under his theory of this case upon conjecture. Coincidence is not sufficient, but evidence clearly associating* as cause and effect the one occurrence with the other event is requisite. The evidence is not at all satisfactory; but if we concede that it traces the depletion of the well to the removal of the coal, then is defendant liable at law therefor?

"When the word surface is used in a grant of land, it creates a severance of the land into two parts, and prima facie refers only to the soil which covers the minerals the " vestimenta terra". Gas Co. v. Comm'rs., 75 Kan. 335; Dolan v. Doian, 70 W. Va. 76 (79). A mere surface grant has sometimes been likened "to the upper story of a building entitled to support from below but covering none of the subjacent support." Erickson v. Iron Co., 50 Mich. 604 (609). In using the word "surface" the layman in casual conversation, as well as the judge in a considered opinion, ordinarily refers merely to the superficial part of land. Snyder on Mines, Sec. 1030, defines the word "surface" as including all the soil and strata "superincumbent on the mines". This definition is fancied by some courts. We cannot apply it here, however, as there is no reference in the deed to any mine. When a conveyance, after designating the surface, denotes the other section of the land in a reservation, the surface has in some cases been held to embrace all that portion of the land not specifically set apart in the reservation. For example, if in addition to granting the surface, a conveyance should reserve only the coal, some courts would construe the word "surface" in such case to embrace all of the land except the coal. See Ramage v. So. Penn Oil Co., 94 W. Va. 81; 31 A. L. R. 1509, and cases there cited. That situation does not arise here. It is, therefore, unnecessary for this Court to now enter into the conflict waged around those decisions. While there is a reservation here affecting the surface itself, there is no reservation of any other portion of the land. Consequently, there is nothing in the deed to give the word "surface" a secondary meaning. Ramage v. So. Penn Oil Co., supra, is quoted at length in plaintiff's brief as supporting its contention. But Judge Meredith, who wrote the opinion, is careful to state (p. 99) that the Court...