Mitchell/Roberts P'ship v. Williamson Energy, LLC

• Decision Date: 08 September 2020
• Docket Number: NO. 5-19-0339,5-19-0339
• Citation: 444 Ill.Dec. 452,164 N.E.3d 77,2020 IL App (5th) 190339
• Parties: MITCHELL/ROBERTS PARTNERSHIP, an Illinois General Partnership; Reba L. Mitchell, Trustee and Beneficiary of the Robert H. Mitchell Residual Trust; Carl Inman, Independent Executor of the Estate of Russell J. Inman, Deceased; Carol Dean Crabtree; Robin Lynne Kee Williams; John Milo Kee; Nelda Baldwin, Personal Representative of the Estate of Beverly B. Adams, Deceased; Nelda Baldwin, Personal Representative of the Estate of Katherine Baldwin, Deceased; and David Senseney, Executor of the Estate of Margueritte Boos, Deceased, Plaintiffs-Appellants, v. WILLIAMSON ENERGY, LLC, a Delaware Limited Liability Company, Colt, LLC, a West Virginia Limited Liability Company, Independence Land Company, LLC, a Delaware Limited Liability Company, and WPP, LLC, a Delaware Limited Liability Company, Paula Newcomb, Vince Sneed, Robert C. Wilson, Christie Brown, Joni Miller, and Fannie Miller, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

2020 IL App (5th) 190339

164 N.E.3d 77

444 Ill.Dec. 452

MITCHELL/ROBERTS PARTNERSHIP, an Illinois General Partnership; Reba L. Mitchell, Trustee and Beneficiary of the Robert H. Mitchell Residual Trust; Carl Inman, IndependentExecutor of the Estate of Russell J. Inman, Deceased; Carol Dean Crabtree; Robin Lynne Kee Williams; John Milo Kee; Nelda Baldwin, Personal Representative of the Estate of Beverly B. Adams, Deceased; Nelda Baldwin, Personal Representative of the Estate of Katherine Baldwin, Deceased; and David Senseney, Executor of the Estate of Margueritte Boos, Deceased, Plaintiffs-Appellants,

v.WILLIAMSON ENERGY, LLC, a Delaware Limited Liability Company, Colt, LLC, a West Virginia Limited Liability Company, Independence Land Company, LLC, a Delaware Limited Liability Company, and WPP, LLC, a Delaware Limited Liability Company, Paula Newcomb, Vince Sneed, Robert C. Wilson, Christie Brown, Joni Miller, and Fannie Miller, Defendants-Appellees.

NO. 5-19-0339

Appellate Court of Illinois, Fifth District.

Rule 23 order filed August 17, 2020

Motion to publish granted September 8, 2020

Opinion Filed: September 8, 2020

F. William Bonan, of Bonan, Bonan & Rowland, LLC, of McLeansboro, Mark S. Johnson, Matthew B. Ferrell, Mark H. Clarke, and John R. Schneider, of Johnson, Schneider & Ferrell, LLC, of Cape Girardeau, Missouri, and George E. Stigger(pro hac vice), of St. Marys, Georgia, for appellants.

John E. Rhine, of Bingham, Greenebaum, Doll, LLP, of Evansville, Indiana, and Brandon McGrath, of Bingham, Greenebaum, Doll, LLP, of Cincinnati, Ohio, for appelleesIndependence Land Company, LLC, and WPP, LLC.

G. Patrick Murphy and Patricia S. Murphy, of Murphy & Murphy, LLC, of Marion, Brian A. Glasser, of Bailey & Glasser, LLP, of Charleston, West Virginia, and Jeffrey R. Baron, of Clayton, Missouri, for appelleesWilliamson Energy, LLC, and Colt, LLC.

No brief filed for other appellees.

C. Michael Witters, of Mt. Carmel, for amicus curiaeIllinois Coal Association.

JUSTICE OVERSTREETdelivered the judgment of the court, with opinion.

¶ 1The plaintiffs, Mitchell/Roberts Partnership(Mitchell/Roberts), an Illinois general partnership; Reba L. Mitchell, trustee and beneficiary of the Robert H. Mitchell Residual Trust; Carl Inman, independent executor of the estate of Russell J. Inman, deceased; Carol Dean Crabtree; Robin Lynne Kee Williams; John Milo Kee; Nelda Baldwin, personal representative of the estate of Beverly B. Adams, deceased; Nelda Baldwin, personal representative of the estate of Katherine Baldwin, deceased; and David Senseney, executor of the estate of Margueritte Boos, deceased, appeal the July 24, 2019, judgment of the circuit court of Williamson County that denied their motion for partial summary judgment on the construction of certain provisions regarding the conveyance of rights of subjacent and sublateral support (subsidence rights) pertinent to the surface as set forth in five mineral deeds known as the "Pierce Deeds"(Pierce Deeds A-E)¹ that were executed and recorded in 1913 and 1914.

¶ 2The circuit court granted summary judgment in favor of moving defendantsWilliamson Energy, LLC, a Delaware limited liability company(WE); Colt, LLC, a West Virginia limited liability company(Colt); Independence Land Company, LLC, a Delaware limited liability company(ILC); and WPP, LLC, a Delaware limited liability company(WPP)(collectively, the defendants), regarding the issue of the construction of said provisions in the Pierce Deeds, finding that subsidence rights were conveyed in all 135 parcels of real estate described in the Pierce Deeds,² rather than in only 15 of the parcels as alleged by the plaintiffs.³

¶ 3DefendantsPaula Newcomb, Vince Sneed, Robert C. Wilson, Christie Brown, Joni Miller, and Fannie Miller(collectively, Choate defendants) may claim an interest in the coal in an underlying portion of the parcels at issue by virtue of a tax deed (Choate Deed).Accordingly, the Choate defendants were joined as necessary parties.However, the Choate defendants have made no claim regarding the ‘‘Deep Coal’’⁴ or the mining rights corresponding thereto as set forth in the Pierce Deeds and did not join in the defendants' motions for summary judgment.Accordingly, the Choate defendants are excluded from any reference to "defendants" in this disposition, and that term hereinafter exclusively represents the aforementioned moving defendants.For the following reasons, we affirm the circuit court's judgment, as we find the subsidence rights conveyed in the Pierce Deeds unambiguously applied to all 127 parcels described in the deeds, rather than only 12 parcels as alleged by the plaintiffs.In the alternative and assuming, arguendo , that the Pierce Deeds are ambiguous, we affirm based on other evidence in the record that shows that the parties of the deeds intended to convey subsidence rights in all 127 parcels and such rights were conveyed as a matter of law.

¶ 4 BACKGROUND

¶ 5 I. Review

¶ 6 At the outset, we provide a brief review of mineral deeds, subsidence, and coal mining techniques to contextualize the underlying litigation and the issue on appeal.

¶ 7 A. Mineral Deeds

¶ 8 The Pierce Deeds at issue in this appeal are mineral deeds.In Illinois, common law and statutory law establish that mineral rights may be severed and owned separately from the surface land.A real estate owner may either convey by deed or reserve title to any minerals existing beneath the surface of the real estate.To that regard, the Illinois Supreme Court in Manning v. Frazier , 96 Ill. 279, 283-85(1880), recognized that minerals under the soil are real estate and, as such, are capable of conveyance by deed.Likewise, section 1(a) of the Severed Mineral Interest Act (Act) defines a severed mineral interest as "any whole or fractional interest in any or all minerals which have been severed from the surface estate by grant, exception, reservation or other means."765 ILCS 515/1(a)(West 2016).

¶ 9 B. Subsidence

¶ 10Section 1(c) of the Act defines a surface owner as "any person or entity vested with a whole or undivided fee simple interest or other freehold interest in the surface estate overlying a severed mineral interest."Id.§ 1(c).The surface owner is, as a matter of law, entitled to subjacent support from the owner of the subjacent mineral interest.Lloyd v. Catlin Coal Co. , 210 Ill. 460, 468, 71 N.E. 335(1904)."This right of support is absolute and without condition * * *."Id.However, " ‘[l]ike any other right, the owner of the surface may part with the right to support, by his deed or covenant.’ "Wesley v. Chicago, Wilmington & Franklin Coal Co. , 221 Ill. App. 427, 433(1920)(quotingWilliams v. Hay , 120 Pa. St. 485, 14 A. 379(1888) ).The surface owner may also agree in the deed "to waive and release all damages caused by the loss of subjacent support."Mason v. Peabody Coal Co. , 320 Ill. App. 350, 352-53, 51 N.E.2d 285(1943).However, such agreements are strictly construed "and the courts will not find that there has been a waiver or release of the right of subjacent support unless the intention to give such a waiver or release clearly appears either by express words or by necessary implication from the language used."Id. at 353, 51 N.E.2d 285.

¶ 11 C. Mining Techniques

¶ 12 Room and pillar mining is an underground mining technique in which rooms are created by removing coal in sections while pillars are left in place between the rooms to provide sufficient support for the overlying strata.Lloyd , 210 Ill. at 463, 71 N.E. 335.Longwall mining, on the other hand, is a mining technique in which subsidence is planned ( Old Ben Coal Co. v. Department of Mines & Minerals , 204 Ill. App. 3d 1062, 1072, 150 Ill.Dec. 399, 562 N.E.2d 1202(1990) ) and very high rates of coal are extracted ( Citizens Organized Against Longwalling v. Division of Reclamation, Ohio Department of Natural Resources , 41 Ohio App.3d 290, 535 N.E.2d 687, 689(1987) ).

¶ 13 In longwall mining, tunnels are created to separate large blocks of coal known as "longwall panel[s]" that measure 5 feet high, 500 to 700 feet wide, and 5000 feet long.Citizens , 535 N.E.2d at 689.Machines that are secured beside the longwall panels gradually grind through the panels to tear the coal away.Continental Resources of Illinois, Inc. v. Illinois Methane, LLC , 364 Ill. App. 3d 691, 694, 301 Ill.Dec. 887, 847 N.E.2d 897(2006).Hydraulic supports are used to hold up the mine roof, and as the machines advance through the longwall panels, the supports follow.Citizens , 535 N.E.2d at 689.As the roof supports progress through the panels, voids are left and the ceiling of the mine collapses, resulting in near immediate subsidence of the overlying strata.Id.

¶ 14 II.The Pierce Deeds

¶ 15 Between March 12, 1913, and July 29, 1914, the Pierce Deeds were executed by grantors George S. Roberts and May Roberts to grantee Charles I. Pierce.Pierce Deeds A-D comprise 127 parcels of land in Williamson County.The Pierce Deeds all begin with the following Granting Clause:

"THE GRANTORS, GEORGE S. ROBERTS and MAY ROBERTS, his wife, of the town of Corinth, in the County of Williamson and State of Illinois, * * * do hereby grant, bargain, sell, convey and warrant to CHARLES I. PIERCE, all the coal lying below the depth of One Hundred Twenty Five (125) feet from the surface of the following described real estate, * * * in Williamson County, Illinois, to wit:"

¶ 16 Pierce Deed A comprises 83 parcels, Pierce Deed B comprises 21 parcels, Pierce Deed C comprises 16 parcels, and Pierce Deed D comprises 7 parcels, for a total of 127 parcels.All parties agree that the Pierce Deeds all share a similar wording and organizational structure.In particular, the Pierce Deeds all contain the following: (1) the above-cited Granting Clause; (2) repeated patterns of groups of parcels with the legal description of each individual parcel and a corresponding reference to the Source Deed in which, ...