Robinson v. Steel

• Decision Date: 08 September 1925
• Docket Number: (C. C. 328)
• Citation: 99 W.Va. 435
• Court: West Virginia Supreme Court
• Parties: Alan H. Robinson, Trustee et als v. Wheeling Steel &Iron Co.

99 W.Va. 435

Alan H. Robinson, Trustee et als

v.Wheeling Steel & Iron Co.

(C. C. 328)

Supreme Court of Appeals of West Virginia.

Submitted March 10, 1925.

Decided September 8, 1925.

Mines and Minerals Owner of Coal, Limestone Rock, Ores, and Minerals Underlying Land Between Stratum Near Top of Surface and Center of Earth May Use Passageway Formed in Operation Thereof in Transporting Minerals From Adjoining Lands.

The owner of all the coal, limestone rock, ores and minerals underlying land between a stratum near the top of the surface and the center of the earth, may use the passageways formed in the operation thereof in transporting minerals from adjoining lands.

(Mines and Minerals, 27 Cyc. p. 689 [Anno].)

(Note: Parenthetical references by Editors, C. J. Cyc. Not part of syllabi.)

Case Certified from Circuit Court, Ohio County.

Suit by Alan II. Robinson, trustee, and others against the Wheeling Steel & Iron Company. Demurrer to the complaint was sustained, and the trial court certified its ruling.

Affirmed.

Wright Hugus, Henry M. Russell and Hubbard & Hubbard, for defendant.

Litz, Judge:

The circuit court certified its ruling sustaining a demurrer to the bill of complaint which charges that the defendant is the owner of all the coal, limestone rock, ores and minerals between the center of the earth and the stratum of cement rock nine feet, more or less, in thickness located about thirty feet above the Wheeling vein of coal underlying the surface of a certain tract of land in Union District, Marshall county, containing 142 acres, and the plaintiff is vested with the remaining estate; that the defendant, having mined and removed from the land the said Wheeling seam of coal, is, without the consent of the plaintiff, transporting through the passage ways formed by the operation thereof, coal from adjoining lands; and that such use of said passage ways is a continual menace to the stability of the surface and a vein of merchantable coal belonging to the plaintiff lying between the top of the surface and the said passage ways. The theory of the suit is that the defendant, notwithstanding its practical ownership of the land from above the passage ways to the center of the earth, has no right to use these ways for the transportation of coal from other properties.

The cases of Lillibridge v. Lackawanna Goal Company, 43 Pa, 293, 13 L. R. A. 627, and Webber v. Vogel, 189 Pa. St. 158, 42 Atl. 4, cited in Armstrong v. Maryland Coal Co., 67 W. Va 589, hold that the owner of a vein of coal may, before it has been exhausted, use tunnels cut through the body thereof for the removal of other coals from adjoining lands.

In Attebery v. Blair, 244 Ill. 363, 91 N. E. 475, it was decided further that a deed conveying in fee a strip of land for a railroad right-of-way, reserving coal rights, effects a reservation of title to the coal under the land, and the mining rights connected with it, entitling the grantor to mine and remove the coal and use the space thereby created in any way he sees fit.

Under the English law, where the owner of the freehold of inheritance grants the mines, opened as...