Erwin v. Bethlehem Steel Corp.

• Decision Date: 21 November 1950
• Docket Number: No. 761,761
• Citation: 62 S.E.2d 337,134 W.Va. 900
• Parties: ERWIN et al. v. BETHLEHEM STEEL CORPORATION et al. C. C.
• Court: West Virginia Supreme Court

Page 337

62 S.E.2d 337

134 W.Va. 900

ERWIN et al. v. BETHLEHEM STEEL CORPORATION et al.

C. C. No. 761.

Supreme Court of Appeals of West Virginia.

Submitted Oct. 3, 1950.

Decided Nov. 21, 1950.

Syllabus by the Court.

1. Deeds which separately reserve or grant coal underlying certain tracts of land, and which respectively contain a reservation of 'all of the coal and mineral underlying said tract or parcel of land except the top or surface vein--and the right to dispose of or sell said coal and mineral and make a deed therefor--the same as tho this deed had not been made', a grant of 'all of the coal', except the top or surface vein, and the right 'to enter upon and under said land and mine and remove the said coal at pleasure, and the right of way upon and under said land to mine and market the coal under said land and adjacent lands', and a grant of 'all of the coal', except the top or surface vein, and the right 'to enter upon and under said lands and mine and remove the coal hereby conveyed at pleasure, and the necessary right of way to mine and remove the coal in adjacent lands', do not divest the owner of the surface overlying the severed coal of his absolute right to subjacent support for such surface in its natural state; and the operator of the coal, by the quoted provisions in such deeds, is not relieved of liability to such owner for damages for breaks in or subsidence of the surface of his land caused by the mining and the removal of the underlying coal.

2. 'A landowner who conveys the coal underlying the surface of his land has an absolute property right to subjacent support for the surface in its natural state and, though he may sell or dispose of such right, he will not be deemed to have conveyed, parted with, or extinguished it unless his intention so to do clearly appears from express language or by necessary implication.' Point 1, Syllabus, Winnings v. Wilpen Coal Company, W.Va. 59 S.E.2d 655.

3. A reservation or an exception in favor of a stranger to a conveyance does not serve to recognize or confirm a right which does not exist in his favor when the conveyance which contains such reservation or exception is made.

Tusca Morris, Fairmont, A. Blake Billingslea, Fairmont, for plaintiffs.

Amos & Amos, Fairmont, Robert W. Lowe, Fairmont, for defendants.

HAYMOND, Judge.

The plaintiffs, A. Philip Erwin, Agnes B. Erwin, John J. Erwin and J. Paul Erwin, owners of a tract of land of approximately 49.21 acres in Fairmont District, Marion County, except certain underlying veins of coal and mineral, in this action of trespass on the case instituted in the circuit court of that county in the early part of 1949, seek to recover from the defendants, Bethlehem Steel Corporation, Industrial Collieries Corporation and Bethlehem Collieries Corporation, damages in the amount of $10,000.00 for injuries caused to their surface by the defendants in failing to provide adequate subjacent support in mining the underlying Pittsburgh vein of coal owned by one of the defendants and operated by all of them. To the declaration, which contains two counts, the defendants filed a special plea to which the plaintiffs demurred. The circuit court sustained the demurrer to the special plea and by order entered July 22, 1949, certified its ruling to this Court.

Two deeds of severance of coal, including the Pittsburgh vein, from the overlying surface, granting or reserving coal and mining rights, a deed of original conveyance of coal and mining rights from the owner under a reservation in one of the deeds of severance, and a deed conveying the land, except certain underlying veins of coal and mining rights, upon which deeds the plaintiffs and the defendants respectively base their opposing contentions, were made a part of the record by the action of the respective parties in craving oyer of the declaration and the special plea.

The legal sufficiency of the declaration is not challenged by demurrer and its allegations are not denied by any plea of the general issue. To the extent that they are well pleaded, the material facts alleged in the special plea are regarded as true upon the demurrer of the plaintiff to the plea.

At the time of the institution of this action, and for several years previously, the plaintiffs were the owners of a tract of land containing approximately 49.21 acres, except certain underlying veins of coal and mineral, among which is the Pittsburgh vein of coal, and mining rights for their removal. The land of the plaintiffs is suitable for agriculture and grazing and has been used by them for those purposes. The underlying Pittsburgh vein of coal and the mining rights, for some time before, and since, April, 1947, have been owned by the defendant Bethlehem Steel Corporation and at and prior to that time the coal in that vein was mined and removed by it and the defendants, Industrial Collieries Corporation and Bethlehem Collieries Corporation. As a result of their operations in mining and removing the coal and their failure to provide sufficient support for the overlying surface owned by the plaintiffs their land has been caused to break, creack and subside and large holes and fissures have occurred on the surface and in certain strata and mineral owned by the plaintiffs.

The tract of 49.21 acres owned by the plaintiffs is composed of portions of two adjoining tracts of land, one of 58 1/2 acres, formerly owned by John S. Smith, and the other of 158 acres, formerly owned by James Fleming. By deed dated September 26, 1865, John S. Smith conveyed the 58 1/2 acre tract to the children and heirs of his son, James J. Smith, which deed contained an express reservation of 'all of the coal and mineral underlying said tract or parcel of land except the top or surface vein-- and the right to dispose of or sell said coal and mineral and make a deed therefor--the same as the this deed had not been made.' Later, by deed dated June 3, 1873, John S. Smith and wife conveyed all of the coal in the 58 1/2 acre tract, except the top or third vein, to James O. Watson and A. B. Fleming, with the right 'to enter upon and under said land and mine and remove the said coal at pleasure, and the right of way upon and under said land to mine and market the coal under said land and adjacent lands.' On May 23, 1873, by deed by that date, James Fleming and wife conveyed all of the coal, except the top or third vein, in the tract of 158 acres to James O. Watson and A. B. Fleming with the right 'to enter upon and under said lands and mine and remove the coal hereby conveyed at pleasure, and the necessary right of way to mine and remove the coal in adjacent lands.' The Pittsburgh vein of coal, which was reserved or conveyed by the foregoing two deeds of severance of the surface and the top vein of coal from the other veins of coal, with the mining rights and privileges for its removal, passed to and is owned by the defendant Bethlehem Steel Corporation, by virtue of various mesne conveyances.

The greater portion of the tract of 49.21 acres, owned by the plaintiffs, including the top or third vein of coal, except the coal and the mining rights conveyed by the foregoing two deeds from John S. Smith and wife and James Fleming and wife to James O. Watson and A. B. Fleming, appears to have been granted, by its original owners, John S. Smith and James Fleming, or by James Fleming, and other succeeding owners, by various mesne conveyances to A. B. Fleming. The deeds under which A. B. Fleming acquired his title are not mentioned in the pleadings and the record as to them is not clear. At any rate, A. B. Fleming and wife, by deed dated April 5, 1899, conveyed a large part of the 49.21 acres, as a tract of 50 acres, more or less, except one acre, to J. L. Erwin. The one acre excepted by the deed of April 5, 1899, was subsequently acquired by J. L. Erwin from another grantor and is not affected by the provisions of that deed. It is, however, subject to the provisions of the deed of severance to the underlying coal, dated May 23, 1873, from James Fleming and wife to James O. Watson. The remaining portion of the tract of 49.21 acres owned by the plaintiffs, consisting of 0.18 of an acre, was conveyed by deed dated March 27, 1902, to J. L. Erwin by the heirs of James J. Smith, to whom it was granted by the above mentioned deed of John S. Smith, dated Sepgember 26, 1865, and the deed from the heirs of James J. Smith to Erwin was made subject to the reservation of the coal and the mineral in the deed of severance of September 26, 1865. The deed from A. B. Fleming and wife to J. L. Erwin, with respect to coal, contained these provisions: 'The parties of the first part except and reserve and do not herein convey so much of the coal underlying said land as was conveyed by James Fleming and wife to A. B. Fleming and J. O. Watson, and which has since been conveyed to and now belongs to The Gaston Gas Coal Company, a corporation; the coal as excepted and which is not herein conveyed includes the Pittsburgh vein of coal now being worked by the said company and all the other veins of coal except the second vein above said Pittsburgh vein known as the third vein, which third vein is not herein excepted and reserved, but is included in this conveyance. There is also excepted and reserved the right to mine, excavate and remove all of the coal not herein conveyed, and which belongs to the said The Gaston Gas Coal Company, and all the mining rights and privileges necessary and convenient for the mining and removing of said coal and the coal from adjacent, neighboring and coterminous lands to market, which mining rights are vested in and belong to said company.'

The plaintiffs derive their title to the 49.21 acre tract of land, except the severed veins of coal and mineral and the mining rights for their removal, by mesne transfers from J. L. Erwin who, as already pointed out, acquired its ownership under the deeds to him from A. B. Fleming and wife,...