Roberts v. Powell, 13030

• Decision Date: 29 July 1974
• Docket Number: No. 13030,13030
• Citation: 207 S.E.2d 123,157 W.Va. 199
• Parties: Lenora ROBERTS et al. v. I. J. POWELL et al.
• Court: West Virginia Supreme Court

Page 123

207 S.E.2d 123

157 W.Va. 199

Lenora ROBERTS et al. v. I. J. POWELL et al.

No. 13030.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 19, 1973.

Decided Dec. 4, 1973.

Dissenting Opinion July 29, 1974.

Syllabus by the Court

1. A party may only assign error to the giving of instructions if he objects thereto before arguments to the jury are begun stating distinctly the matter to which he objects and the grounds of his objection.

2. The construction of written instruments is a question of law for the court, and not for the jury when the writing is complete in itself and the subject matter of it is certain or the facts are ascertained.

3. 'Where the instructions given in behalf of plaintiff are erroneous, and contradictory to instructions given on behalf of defendant, judgment in favor of plaintiff will be reversed.' Syllabus pt. 2. Barnett v. Boone Lumber Co., 43 W.Va. 441, 27 S.E. 209 (1897).

4. The true measure of damage to surface land in all cases involving the lawful exercise of mineral rights is the difference between the fair market value of the surface land immediately before the extraction operation and the fair market value immediately after the extraction operation, and evidence which does not tend to establish the respective fair market values is irrelevant, and if such evidence is prejudicial in nature, the admission of such evidence constitutes reversible error.

Hostler, Logsdon & Shinaberry, Sterl F. Shinaberry, Charleston, for appellants.

Camper & Watson, Wade T. Watson, Welch, for appellees.

NEELY, Justice:

This appeal from the Circuit Court of McDowell County raises four principal assignments of error as a consequence of a jury trial in which both compensatory and punitive damages were recovered by the surface owners of land against the mineral owners. I. J. Powell, et al., the mineral owners, defendants below and appellants here assert that the circuit court erred when it: (1) permitted a general verdict to be returned against multiple defendants; (2) gave instructions which permitted the jury to consider the question of punitive damages; (3) overruled defendants' objection to the admission of certain evidence in the measurement of damages; and (4) when it issued conflicting and contradictory jury instructions.

Plaintiffs, Lenora Roberts, et al., onwed three tracts of surface land, consisting of a 100 acre tract, an 89.5 acre tract, and a 55 acre tract. The defendants owned mineral rights as described in certain reservation clauses in deeds conveying the surface to plaintiffs or plaintiffs' predecessors in title.

After negotiations and a failure to reach a settlement with the plaintiffs as to contemplated damages to the surface of the tracts, the defendants began to mine the coal through surface operations commonly known as 'strip-mining,' in 1966. The testimony at trial indicates that 98% Of the surface damage occurred either on the 100 acre tract or on the 89.5 acre tract, and only 2% Of the damage attributable to mining operations occurred on the 55 acre tract. Although there were negotiations to settle the amount of damages to the surface before the commencement of the mining operations, these negotiations reached an impasse. After the mining operations had begun, plaintiffs filed a complaint in the Circuit Court of McDowell County which alleged that the defendants entered upon the three tracts with heavy equipment and negligently, carelessly, maliciously, and recklessly damaged the surface, changed the natural terrain and water courses, and cast rock, dirt, and debris upon the property. The plaintiffs further alleged that the entry by the defendants upon the land was wrongful and constituted a trespass. Upon a jury trial held in May 1969, the jury returned a general verdict in favor of the plaintiffs in the amount of ten thousand dollars, consisting of five thousand dollars compensatory damages and five thousand dollars punitive damages. Upon this verdict and after post-trial motions the defendants appealed.

The first alleged error concerned the propriety of the general verdict form against all defendants. Defendants maintain that the jury should have been permitted to assess both compensatory and punitive damages against the individual defendants in accord with the evidence of each individual defendant's liability. The defendants did not urge the court during trial to instruct the jury that certain items of evidence were only to be considered against specific defendants, and at the time the form of the verdict was being considered by the court, defendants did not object to the general form of the verdict. Under these circumstances the defendants did not comply with Rule 51 of the West Virginia Rules of Civil Procedure which requires that a party may only assign error to the giving of instructions if he objects thereto before arguments to the jury are begun stating distinctly the matter to which he objects and the grounds of his objection. Objections to instructions must be distinctly stated, Smith v. Edward M. Rude Carrier Corp., 151 W.Va. 322, 151 S.E.2d 738 (1966), they cannot be general objections, Fortner v. Napier, 153 W.Va. 143, 168 S.E.2d 737 (1969) and they must satisfy the stringent requirements of Rule 51, Yeager v. Stevenson, W.Va., 180 S.E.2d 214 (1971). Appellants did not raise this issue in a timely manner as it could not first be raised in a post-trial motion to set aside the verdict, Walker v. Monongahela Power Co., 147 W.Va. 825, 131 S.E.2d 736 (1963) and accordingly we hold that the error was waived.

The second assignment of error concerns the propriety of the jury's consideration of punitive damages. Plaintiffs contend that punitive damages may be awarded because under the mineral reservation clauses in the deeds the defendants were required to anticipate and settle the question of compensatory damages before entry upon the land.

The plaintiffs contend that the jury had substantial support for finding that the defendants had no right to strip-mine the surface lands of the Roberts heirs without first making arrangement for compensation. The case was tried on the erroneous premise that the jury were entitled to determine the proper construction of the deeds to the 100 acre and 89.5 acre tracts. However, it is the law in West Virginia that the construction of written instruments is a question of law for the court, and not for the jury when the writing is complete in itself and the subject matter of it is certain or the facts are ascertained. McKenzie v. Western Greenbrier Bank, 146 W.Va. 971, 124 S.E.2d 234 (1962); Carbon Fuel Company v. Gregory, 131 W.Va. 494, 48 S.E.2d 338 (1948); 10 M.J. Interpretation and Construction, Section 3. The reservation clause in the deed from I. J. Powell and Louise D. Powell, two of the defendants, to plaintiff Lewis Roberts contained the following reservation clause:

'Excepting and reserving from the operation of this conveyance all the coal, minerals, mineral substances, oil and gas, in or under said land, and all mining rights and privileges; the full right to mine or drill and remove the same and use as much of the surface as may be necessary in connection therewith appertaining thereto, together with all right-of-way over, through and across said tract of land without liability for damage or injury to said land, timber, appurtenances, or water. Furthermore, all developing of the unconveyed mineral rights shall protect in reason the rights of the Second Party and shall never be construed to permit mining of the surface to obtain the coal or minerals by such means as is commonly known as 'stripping' without compensation for the surface destroyed and damage done thereto.'

The reservation clause in the conveyance to Lewis Roberts of the 89.5 acre tract was as follows:

'The parties of the first part hereby reserve and hold all coal And mineral underlyin ghte above surface lands, and sufficient rights of way to properly mine all of the said coal. The party of the second part shall be paid a reasonable damage for all surface openings and water sinkings that may occur by any mining operations. It is further agreed that the party of the second part shall have all coal necessary for home consumption without charge.'

We hold that the only reasonable construction of these reservation clauses is that the owners of the mineral rights are entitled to extract the minerals by the use of surface mining, but that they must respond in damages. Plaintiffs' theory that the quantum of damages to the surface must be ascertained in advance of mining is patently unreasonable. Most cases of this type admit to an agreement estimating the amount of damage in advance of mining, and costly litigation is thereby avoided. However, if we were to rule that both part...