Hall v. Harvey Coal &. Coke Co

• Decision Date: 20 September 1921
• Citation: 108 S.E. 491
• Court: West Virginia Supreme Court
• Parties: HALL. v. HARVEY COAL &. COKE CO.

108 S.E. 491

HALL.

v.HARVEY COAL &. COKE CO.

Supreme Court of Appeals of West Virginia.

Sept. 20, 1921.

(Syllabus by the Court.)

Where a demurrer is overruled and the jury, on the issue, finds a verdict of $100 for plaintiff, but, instead of entering a judgment thereon and disposing of a motion for a new trial, the court certifies its action on the demurrer to this court for review, the amount in controversy is the sum sued for, and this court will take jurisdiction upon the question certified.

A deed to coal and minerals in place, containing privilege of mining and removing, without words in either the granting clause or mining provision indicating an extinguishment or waiver of the right of subjacent support to the surface in case the coal is mined and removed, will not be construed, to protect the vendee against damages to the surface caused by the mining and removal of the coal.

A conveyance of coal and all minerals, with the right of mining and removing said coal and all minerals, with covenants of general warranty of the coal and other minerals, does not evince the extinguishment of the right of the vendor to subjacent support to protect the surface of the land in its natural state in the event of the removal of the coal. Distinguished from Griffin v. Coal Co., 59 W. Va. 490, 53 S. E. 24, 2 L. R. A. (N. S.) 1115.

(Additional Syllabus by the Editorial Staff.)

Case certified from Circuit Court, Fayette County.

Action by O. M. Hall against the Harvey Coal & Coke Company. Demurrer to the declaration overruled, and case certified. Affirmed.

C. R. Summerfield, of Fayetteville, for plaintiff.

Dillon & Nuckolls, of Fayetteville, for defendant

LIVELY, J. A demurrer to the declaration was overruled, and the circuit court has certified its action in so doing to this court, and the sufficiency of the declaration is now under review.

Plaintiff filed its declaration in trespass on the case, alleging ownership of the surface of a tract of land, the coal and all minerals under which, prior to his purchase of the surface, had been sold by a former owner in the year 1898 to Harvey and Thurmond, with the right to mine and remove the same, the deed to which coal and all minerals is filedwith the declaration as a part thereof; that the defendant had wantonly and willfully removed all, or practically all, of the coal, without leaving sufficient coal in place, or without leaving in its place other permanent artificial support for preserving the surface or overlying strata in its natural condition, by reason whereof the surface began to sink in places, causing cracks, holes, and crevasses, and rendering the land unfit and useless for farming and grazing purposes, and causing damage to plaintiff of $3,000.

Oyer was craved of the deed filed as a part of the declaration, whereupon it was produced and by order of the court made a part of the declaration, and then defendant demurred to the declaration, which demurrer was overruled, issue joined, and the case went to trial, resulting in a verdict in favor of the plaintiff of $100. Motion by defendant to set aside the verdict followed, and the court, without passing upon the motion, and believing the question of the sufficiency of the declaration of vital importance, on its own motion certified its action in overruling the demurrer to this court for review, and stayed further proceedings.

Two deeds accompany the record, but as only one of them, the deed from Painter to Harvey and Thurmond in 1898, is referred to in the declaration, and that only could have been made a part of the declaration by oyer, it, only, will be considered on demurrer.

It is well settled that papers attached to or made a part of a declaration, or exhibited therewith, cannot be considered upon a demurrer to the declaration. Such documents are evidence in support of the averments of the declaration, and go to the jury. Pingley v. Pingley, 84 W. Va. 433, 100 S. E. 216. But inasmuch as oyer of this deed was craved without objection from plaintiff and the deed made a part of the declaration, defendant is entitled to whatever benefit he may derive therefrom. Chitty on Pleading, vol. 1, p. 431 (11th Ed.). It seems that the parties and the court have tacitly agreed that the deed may be considered upon the demurrer, and in this particular instance, for the purposes of this case, it will be so considered.

We are met at the threshold with a question of our jurisdiction to entertain this case under section 1, c. 135, Code 1918, ¹ which provides for certification of questions arising upon the sufficiency of a summons or return of service, or challenge of the sufficiency of a pleading in any case within the jurisdiction of this court. It is urged that this court is not called upon to pass on the sufficiency of a pleading, but to construe a deed and to determine from it the right of defendant to remove the coal as lessee of Harvey and Thurmond, without leaving support sufficient to sustain the surface in its natural state. As above stated, plaintiff filed this deed as a part of his declaration, and it was made and considered so by the court upon oyer without objection on the part of plaintiff, and he should not now complain of what he has done. Besides the declaration sets out that Painter, a former owner of the land, had, before plaintiff obtained title to the surface, conveyed "the coal and other minerals" underlying the same to Harvey and Thurmond. The declaration, while averring the ownership of the coal and minerals in others, in partial conformity with the deed, does not set out the clause or provision in the deed therefor by which the purchasers have the mining rights for "removing said coal and all minerals from said land, " a privilege and right which would necessarily follow from the sale and conveyance of the coal and minerals. If there was not an implied right to mine and remove the coal and minerals, the purchase would be of little value. It is the law of necessity. The sale of land lying in the interior of and surrounded by the grantor's land implies a right of way to the grantee over the grantor's land for ingress and egress. The parties may stipulate the kind of way, its location, width, etc., so as to save possible disputes and resorts to the courts. In this deed the parties have incorporated therein a specific agreement for what the law of necessity impliedly grants, to be exercised in a particular, specified manner. The provision in the deed for mining and removing the coal does not materially affect the granting clause of the coal practically set out and averred in the declaration, and the demurrer could well be considered and disposed of without resort to the deed.

It is also urged that, inasmuch...