PRITCHARD
Circuit Judge (after stating the facts as above).
This
case was heard at the November term, 1907, of this court
and, after argument, the court (in pursuance of section 6 of
the act of March 3, 1891, establishing the Circuit Court of
Appeals), on its own motion, certified to the Supreme Court
the question as to whether this court is bound by the
decision of the Supreme Court of Appeals of West Virginia in
the case of Griffin v. Fairmont Coal Company, decided by that
court at its November term, 1905, and reported in 59 W.Va
480, 53 S.E. 24, 2 L.R.A. (N.S.) 1115, in which it was held:
'(1)
Deeds conveying coal with right of removal should be
construed in the same way as other written instruments, and
the intention of the parties, as manifest by the language
used in the deed itself, should govern.
'(2)
The vendor of land may sell and convey his coal and grant
to the vendee the right to enter upon and under said land,
and to mine, excavate, and remove all of the coal purchased
and paid for by him, and, if the removal of the coal
necessarily causes the surface to subside or break, the
grantor cannot be heard to complain thereof.
'(3)
Where a deed conveys the coal under a tract of land,
together with the right to enter upon and under said land,
and to mine, excavate, and remove all of it, there is no
implied reservation in such an instrument that the grantee
must leave enough coal to support the surface in its
original position.'
The
Supreme Court at its October term, 1909, passed upon the
question certified. 215 U.S. 349, 30 Sup.Ct. 140, 54 L.Ed. .
. . . Justice Harlan, who rendered the opinion of the court,
in passing upon the question certified, among other things,
said:
'This
case is here on a question propounded under the authority
of the judiciary act of March 3, 1891, relating to the
jurisdiction of the courts of the United States, 26 Stat.
826, c. 517, Sec. 6 (U.S. Comp. St. 1901, p. 488). The
facts out of which the question arises are substantially as
will be now stated.
'On
the 21st day of November, 1889, the plaintiff Kuhn, a
citizen of Ohio, sold and conveyed to Camden all the coal
underlying a certain tract of land in West Virginia of
which he (Kuhn) was the owner in fee. The deed contained
these clauses: 'The parties of the first part do grant
unto the said Johnson N. Camden all the coal and mining
privileges necessary and convenient for the removal of the
same, in, upon and under a certain tract or parcel of land
situated in the county of Marion, on the waters of the West
Fork river, bounded and described as follows, to wit:
Together with the right
to enter upon and under said land and to mine, excavate and
remove all of said coal, and to remove upon and under the
said lands the coal from and under adjacent, coterminous
and neighboring lands, and also the right to enter upon and
under the tract of land hereinbefore described, and make
all necessary structures, roads, ways, excavations, air
shafts, drains, drainways and openings necessary or
convenient for the mining and removal of said coal and the
coal from coterminous and neighboring lands to market.'
'The
present action of trespass on the case was brought January
18, 1906. The declaration alleged that the coal covered by
the above deed passed to the defendant, the Fairmont Coal
Company, a West Virginia corporation, on the . . . day of
January, 1906; that the plaintiff, Kuhn, was entitled of
the right to have all his surface and other strata
overlying the coal supported in its natural state either by
pillars or blocks of coal or by artificial support; that on
the day named the defendant company mined and removed coal
from under the land, leaving, however, large blocks or
pillars of coal as a means of supporting the overlying
surface; that the coal company, disregarding the
plaintiff's rights, did knowingly, willfully, and
negligently, without making any compensation therefor, or
for the damage arising therefrom, mine and remove all of
said blocks and pillars of coal so left, by reason whereof
and because of the failure to provide any proper or
sufficient artificial or other support for the overlying
surface, the plaintiff's surface land, or a large
portion thereof, was caused to fall; and that it was
cracked, broken, and rent, causing large holes and fissues
to appear upon the surface and destroying the water and
water courses.
'The
contract under which the title to the coal originally
passed was executed in West Virginia and the
plaintiff's cause of action arose in that state.
'A
demurrer to the declaration was sustained by the Circuit
Court, an elaborate opinion being delivered by Judge
Dayton. Kuhn v. Fairmont Coal Company, 152 F. 1013. The
case was then taken upon writ of error to the Circuit Court
of Appeals.
'It
appears from the statement of the case made by the Circuit
Court of Appeals that in the year 1902, after Kuhn's
deed to Camden, one Griffin brought, in a court of West
Virginia, an action, similar in all respects to the present
one, against the Fairmont Coal Company, the successor of
Camden. His rights arose from a deed almost identical with
that executed by Kuhn to Camden. That case was ruled in
favor of the coal company, and, subsequently, was taken to
the Supreme Court of West Virginia, which announced its
opinion therein in November, 1905. A petition for rehearing
having been filed, the judgment was stayed. But the
petition was overruled March 27, 1906, on which day, after
Kuhn's suit was brought, the decision previously
announced in the Griffin Case became final under the rules
of the Supreme Court of the state. Griffin v. Coal
Co., 59 W.Va. 480 (53 S.E. 24, 2 L.R.A. (N.S.) 1115).
'The
contention by the coal company in the court below was that,
as the decision in the Griffin Case covered substantially
the same question as the one here involved, it was the duty
of the federal court to accept that decision as controlling
the rights of the present parties, whatever might be its
own opinion as to the law applicable to this case. The
contention of Kuhn was that the federal court was under a
duty to determine the rights of the present parties upon
its own independent judgment, giving to the decision in the
state court only such weight as should be accorded to it
according to the established principles in the law of
contracts and of sound reasoning; also, that the federal
court was not bound by a decision of the state court in an
action of trespass on the case for a tort not involving the
title to land.
'Such
being the issue, the Circuit Court of Appeals, proceeding
under the judiciary act of March 3, 1891, c. 517, have sent
up the following question to be answered:
''Is
this court bound by the decision of the Supreme Court in
the case of Griffin v. Fairmont Coal Company, that being
an action by the plaintiff against the defendant for
damages for a tort, and this being an action for damages
for a tort based on facts and circumstances almost
identical, the language of the deeds with reference to
the granting clause being in fact identical, that case
having been decided after the contract upon which
defendant relies was
executed, after the injury complained of was sustained, and
after this action was instituted?'
'There
is no room for doubt as to the scope of the decision in the
Griffin Case. The syllabus-- page 480 (of 59 W.Va., page 24
of 53 S.E. (2 L.R.A. (N. S.) 1115)), which in West Virginia
is the law of the case, whatever may be the reasoning
employed in the opinion of the court-- is as follows:
'1. Deeds conveying coal with rights of removal should
be construed in the same way as other written instruments,
and the intention of the parties as manifest by the
language used in the deed itself should govern. 2. The
vendor of land may sell and convey his coal and grant to
the vendee the right to enter upon and under said land and
to mine, excavate and remove all of the coal purchased and
paid for by him, and, if the removal of the coal
necessarily causes the surface to subside or break, the
grantor cannot be heard to complain thereof. 3. Where a
deed conveys the coal under a tract of land, together with
the right to enter upon and under said land, and to mine,
excavate and remove all of it, there is no implied
reservation in such an instrument that the grantee must
leave enough coal to support the surface in its original
position. 4. It is the duty of the court to construe
contracts as they are made by the parties thereto, and to
give full force and effect to the language used, when it is
clear, plain, simple and unambiguous. 5. It is only where
the language of a contract is ambiguous and uncertain and
susceptible of more than one construction, that a court
may, under the well-established rules of construction,
interfere to reach a proper construction and make certain
that which in itself is uncertain.'
'Nor
can it be doubted that the point decided in the Griffin
Case had not been previously adjudged by the Supreme Court
of that state. Counsel for the coal company expressly state
that the question here involved was never before the
Legislature or courts of West Virginia until the deed
involved in the Griffin Case came before the Supreme Court
of that state for construction; that 'until then there
was no law and no local custom upon the subject in force in
West Virginia'; and that 'only after the holding of
the
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