Ison v. Daniel Crisp Corp.

• Decision Date: 21 November 1961
• Docket Number: No. CC,CC
• Citation: 146 W.Va. 786,122 S.E.2d 553
• Court: West Virginia Supreme Court
• Parties: Roy A. ISON et al. v. DANIEL CRISP CORP., a Corp., (Formerly Daniel Coal Co., Inc.) 860.

Page 553

122 S.E.2d 553

146 W.Va. 786

Roy A. ISON et al. v. DANIEL CRISP CORP., a Corp., (Formerly Daniel Coal Co., Inc.)

No. CC 860.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 12, 1961.

Decided Nov. 21, 1961.

Syllabus by the Court.

1. 'A contract made and intended for the benefit of the contracting parties only does not give a person who is not a party thereto the right to maintain an action on such contract as a beneficiary thereof under Code, 55-8-12.' Syl., United Dispatch v. E. J. Albrecht Co., 135 W.Va. 34.

2. In the absence of a provision in a contract specifically stating that such contract shall inure to the benefit of a third person, there is a presumption that the contracting parties did not so intend and in order to overcome such presumption the implication from the contract as a whole and the surrounding circumstances must be so strong as to be tantamount to an express declaration.

Wm. B. Hogg, Robert J. Staker, Williamson, for plaintiffs.

Slaven & Staker, Lant R. Slaven, Zane Grey Staker, W. Graham Smith, Jr., Williamson, for defendant.

BROWNING, Judge.

Plaintiffs, Roy A. Ison and others are the owners of the surface of approximately one acre of land situate in Magnolia District, Mingo County, West Virginia, and seek in this action of trespass on the case to recover of the defendant, Daniel Crisp Corporation, damages for the casting of waste materials, refuse and water upon plaintiffs' property, both directly and indirectly as a result of the obstruction of a stream, as a consequence of defendant's strip and auger mining operation on adjacent property. Defendant filed its 'Special Plea No. 1' to the declaration setting out in toto a deed from Red Jacket Coal Corporation, sometimes hereinafter referred to as Red Jacket, by which plaintiffs acquired their title to the property, and asserting that under the reservations and covenants contained therein, plaintiffs are precluded from any recovery in the instant action. The pertinent portions of such deed are as follows:

'* * * There are excepted and reserved unto the said party of the first part, its successors, lessees, licensees and assigns, the following:

'(1) All estates in said lot except the surface, including in the estates hereby excepted and reserved, but not limited to, all the coal * * * together with full and complete rights and privileges of every kind for prospecting for, mining, boring for and removing the same, and with the perpetual right and easement to construct, maintain and use underground haulways * * * and passages through and under said lot for transporting and hauling coal * * * by the said party of the first part its lessees, licensees, successors and assigns, from said lot, as well as from any other lands whatsoever, and without liability for loss or damage to the surface of said lot or to any buildings or structures at any time placed thereon, or for the diversion of any surface or subterranean water course or courses in any way or manner caused by or resulting from the use, exercise, operation and enjoyment of the estates hereby excepted and reserved.

* * *

* * *

'(4) It is understood that coal mining operations will be conducted by the party of the first part, its lessees, licensees, successors or assigns, in the vicinity of the said Subdivison and of the lot hereby conveyed. Said party of the first part therefore excepts and reserves unto itself, its successors, lessees, licensees and assigns, the right and privilege of conducting mining, operations and incidental activities in the vicinity of the said Subdivision and the lot hereby conveyed; and said parties of the second part for themselves and their successors in title as to the surface of said lot hereby waive and relinquish all claims or demands for damages which they * * * may now or hereafter have by reason of any such coal mining operations and incidental activities, including, but not restricted to, all claims or demands for damages arising from noise, vibrations, the pollution or diversion or obstruction of streams, the pollution of air, or the emission of dust, smoke, fumes or noxious gases.' (Italics supplied.)

The deed then provides that such reservations and covenants shall be deemed covenants running with the land and 'shall inure to the benefit of the said party of the first part, its lessees, licensees, successors and assigns.'

Plaintiffs replied to said 'Special Plea No. 1' admitting their derivation of title under the deed alleged, but alleged that subsequent to the execution of said deed Red Jacket Coal Corporation entered into an agreement with defendant, whereby defendant, for valuable consideration, agreed to mine and remove by auger mining methods all of the mineable and merchantable coal from certain lands belonging to Red Jacket, including land adjacent to the plaintiffs', which agreement included the following provision:

'FIVE:--Mining Requirements--Inspection

'It is understood and agreed as follows, to-wit:

'* * *

'B. The locations of all dumps and the disposal of all refuse or waste material shall be so placed as to avoid its falling into or being carried into any stream of water where avoidable, it being understood and agreed that Contractor [the defendant herein] hereby assumes all liability for any damage caused to surface landowners, adjacent landowners or reparian owners by reason of the said disposal of said refuse or waste material, or by reason of its mining operations hereunder.' (Italics supplied)

'* * *

'ELEVEN: Risks Involved--Indemnity--Insurance

'The parties hereto fully understand that the very nature of mining operations and the party of the second part's work hereunder involves some hazard of injury or death to the person or damage to the property, and the party of the second part therefore agrees that the party of the first part hereto shall not be liable for, and the party of the second part shall indemnify the party of the first part hereto against liability resulting from any death or injury to person or damage or loss to property that may be sustained by any person, firm or corporation whomsoever as the result of the work of the party of the second part and its operations hereunder, unless resulting from the wanton and wilful act of the party of the first part hereto, or its agents or employees.

'The party of the second part shall carry and maintain in force at all times, on each motor truck and vehicle used wholly or partly in its work hereunder, and on its operations generally hereunder, a proper policy or policies of comprehensive liability insurance protecting with personal injury and death limits of $100,000.00 and $200,000.00, and property damage limit of $10,000.00 both the party of the second party and the party of the first part hereto against loss. * * *'

Plaintiffs' replication then alleges that their deed from Red Jacket was one of scores of like deeds made by Red Jacket, the greater number of which, like plaintiffs', were made to employees of Red Jacket and that the above quoted provision of 'FIVE (B)' was incorporated in the agreement between Red Jacket and defendant in furtherance of Red Jacket's desire to protect the properties theretofore conveyed to its employees from all damages resulting from the mining operations of defendant under its agreement with Red Jacket.

Defendant demurred to plaintiffs' replication on the grounds: (1) the provisions of the agreement between Red Jacket and defendant do not alter or impair the preexisting reservations and provisions in Red Jacket's deed to plaintiffs and defendant is immune from liability thereunder as a licensee and assignee of Red Jacket; (2) the provisions of the agreement do not manifest any intention by Red Jacket to protect the properties theretofore conveyed to its employees, but, even if they did, such...