Ross Coal Company v. Cole

• Decision Date: 11 November 1957
• Docket Number: No. 7484.,7484.
• Parties: ROSS COAL COMPANY, a corporation, Appellant, v. Albert H. COLE, Charles H. Stephens, Jr., and Louise K. Laws, Trustees of Cole & Crane Real Estate Trust, Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

249 F.2d 600 (1957)

ROSS COAL COMPANY, a corporation, Appellant, v. Albert H. COLE, Charles H. Stephens, Jr., and Louise K. Laws, Trustees of Cole & Crane Real Estate Trust, Appellees.

No. 7484.

United States Court of Appeals Fourth Circuit.

Argued October 21, 1957.

Decided November 11, 1957.

William C. Beatty, Huntington, W. Va. (E. A. Marshall, and Fitzpatrick, Marshall, Huddleston & Bolen, Huntington, W. Va., on the brief), for appellant.

Selden S. McNeer and L. E. Woods, Jr., Huntington, W. Va. (Selden S. McNeer, Jr., and Campbell, McNeer & Woods, Huntington, W. Va., on the brief), for appellees.

Before PARKER, Chief Judge, and SOBELOFF and HAYNSWORTH, Circuit Judges.

HAYNSWORTH, Circuit Judge.

By this action for a declaratory judgment the plaintiffs, as Trustees of Cole & Crane Real Estate Trust, sought a construction of a deed and a declaration of the rights and interests of the parties, under the deed, in the surface of certain land and in underlying coal seams. A motion for summary judgment was granted under Rule 56 of the Federal Rules of Civil Procedure, 28 U.S.C.A. upon the motion of the Trustees. Cole v. Ross Coal Company, D.C., 150 F.Supp. 808. From this order, Ross Coal Company, the defendant below, has appealed to this Court.

Prior to August 10, 1939, the West Virginia Coal & Coke Corporation was the owner in fee of a tract of land in Logan County, West Virginia, containing 217½ acres known as the Rossmore tract. The ownership of the coal had been separated from the ownership of the land and was at that time owned by the defendant Ross Coal Company. However, Ross, the owner of the coal, had leased all of the coal to the West Virginia company, the owner of the land in fee, and West Virginia was engaged in active mining operations upon the tract. In 1939 the West Virginia company was also the lessee of the coal in an adjacent tract containing 1644 acres owned in fee by the Trustees, the plaintiffs here, but whether West Virginia was then actively engaged in the removal of coal from the adjacent Cole & Crane lands is not established in the present record. It is clear that they were actively engaged in the removal of coal from the "Island Creek" seam on the Rossmore tract through a tipple located on an 18 acre section of the Rossmore tract. Both parties appear to be also in agreement that, at least at the present time, the Rossmore tract is not sufficiently large to support independent coal mining operations and that removal of any of the remaining coal on that tract is not economically feasible except as part of a larger operation on the adjacent Cole & Crane lands or other larger holdings.

On August 10, 1939, a deed was executed and delivered by which the West Virginia company released to Ross its interest as lessee in those seams of coal underlying the Island Creek seam while Ross conveyed its interest as lessor in the Island Creek and overlying seams of coal to the West Virginia company, the owner of the land. There were other parties to that deed not material to the resolution of the present controversy.

In the deed of August 10, 1939, the parties recited, among other things, that most of the coal in the Island Creek seam had been exhausted, but they recognized that coal existed both in seams overlying and in seams underlying the Island Creek seam, and that the coal in the overlying and underlying seams was mineable and marketable.

For the conversion of its interest as lessee in the nearly exhausted Island Creek seam and in the overlying seams of coal into an estate of unconditional ownership, the West Virginia company not only relinquished its interest as lessee in the seams underlying the Island Creek seam, but it also paid to Ross the sum of $33,800.00.

After delivery of the deed of August 10, 1939, the West Virginia company was the owner of the land in fee and of the underlying coal except those coal seams geologically underlying the Island Creek seam. Ownership of these lower level seams was vested in Ross and the deed provides that for the purpose of mining and producing the underlying coal seams owned by Ross, it should have certain specified surface rights subject to a provision that the rights should be so exercised as not to interfere with the coal mining operations of every kind and character then being conducted by West Virginia, or which might be thereafter conducted by West Virginia, its successors and assigns "upon said tract of land or within said Island Creek seam and within any or all other seams of coal within said tract of land which overlie said Island Creek seam of coal." The deed also provided that West Virginia would pay all taxes assessed upon the land and all of the coal except that if Ross began actual mining operations in the underlying seams owned by it, or if the West Virginia company should "permanently discontinue coal mining operations on said tract of land," then, in either of such events, Ross would pay such taxes as might be assessed upon the coal in the seams owned by it, while West Virginia would continue to pay the taxes on the land itself and upon the coal in the seams owned by it. The actual provisions of the deed, relating to the rights of Ross to the use of the surface and the tax obligations of the parties, around which this controversy is centered, are set forth in the margin.¹

Sometime after the delivery of the deed of August 10, 1939, the West Virginia company brought to a conclusion its mining operations on the Rossmore tract and removed its tipple. So far as appears, no mining operations have since been conducted on the land.

On July 14, 1954, the West Virginia company conveyed to the Trustees all of the coal owned by it on the Rossmore tract (the remaining coal in the Island Creek seam and all of the coal in the overlying seams), the right to use the site of the former tipple for a new tipple and the right to the use of underlying strata for the mining and removal of coal owned by the Trustees, in consequence of this conveyance, within the Rossmore tract and of coal owned by them within their larger adjacent tract. By the same deed West Virginia relinquished to the Trustees its interest as lessee of the coal owned by the Trustees on the larger adjacent tract. While by this deed the Trustees became the owners of all the coal in the Rossmore tract overlying those lower seams owned by Ross, they did not become owners in fee of the surface, but the grant to them of surface and subterranean rights leaves them in the position, with respect to all matters here material, as if they had acquired ownership of the surface in fee.

This controversy arose after an effort to put together leases of coal in several adjoining tracts, including the Rossmore tract and the adjacent Cole & Crane tract. The tentative plans envisioned a tipple located on the tipple site on the Rossmore tract. The difference between the parties here was whether Ross, the owner of the deeper coal seams, or the Trustees, the owner, for practical purposes, in fee of the surface and of the shallower seams, has the paramount right to construct and operate the tipple. This is important for, under the prevailing custom and usage, if Ross has the paramount right to operate the tipple, it will be entitled to collect from the Trustees "wheelage" and other charges on coal mined on the adjoining lands of the Trustees and moved through the tipple while, if the Trustees have the paramount right to construct and operate the tipple, they would have the right to move their own coal from the adjacent lands through the tipple free of such charges.

We find it unnecessary to consider the view expressed by the District Court that Ross, in addition to those rights enumerated in the deed of August 10, 1939, with respect to its use of the surface, had the implied right to construct and operate a tipple for the removal of the coal in the deep seams owned by it, for we think the District Court was clearly correct in concluding that, even though such an implied right existed, it would be restricted to the removal of the coal on the Rossmore tract and was limited by the provision in the deed restricting the use by Ross of the surface so as not to interfere with the mining operations of the West Virginia company, of which the Trustees are the successors. If the right to operate the tipple on the surface of the land is to be implied, it arises out of the necessity of the situation, for it is to be supposed that Ross would not have acquired or retained ownership of the coal in the deeper seams without appropriate means of removal. The same necessity does not exist and the same implication does not arise with respect to the removal of coal from adjacent lands, particularly when the coal on the adjacent lands was not owned by Ross on the date of the deed, nor was it owned by Ross at the time this controversy arose. Extending the implied right to operate a tipple for the removal of coal from adjacent lands would materially increase the burden upon the servient estate. Unless the deed, itself, provided such right, it is not to be implied. Chafin v. Gay Coal & Coke Co., 109 W.Va. 453, 156 S.E. 47.

We find nothing in the deed of August 10, 1939, which would justify an extension of any implied right, arising out of the necessities of the case, to the removal of coal by Ross from adjacent tracts or to permit it to impose "wheelage" and other charges as a burden upon that removal. It is true...