Russell v. Island Creek Coal Co.

• Decision Date: 20 December 1989
• Docket Number: No. 19104,19104
• Citation: 389 S.E.2d 194,182 W.Va. 506
• Parties: Grover RUSSELL and Etta Russell v. ISLAND CREEK COAL COMPANY and Kenneth Faerber, Commissioner of the West Virginia Department of Energy.
• Court: West Virginia Supreme Court

Page 194

389 S.E.2d 194

182 W.Va. 506

Grover RUSSELL and Etta Russell v. ISLAND CREEK COAL COMPANY and Kenneth Faerber, Commissioner of the West Virginia Department of Energy.

No. 19104.

Supreme Court of Appeals of West Virginia.

Dec. 20, 1989.

Rehearing Denied Feb. 8, 1990.

Syllabus by the Court

1. "When a provision of the West Virginia Surface Coal Mining and Reclamation Act, W.Va.Code, 22A-3-1 et seq., is inconsistent with federal requirements in the Surface Mining Control and Reclamation Act, 30 U.S.C. § 1201 et seq., the state act must be read in a way consistent with the federal act." Syl. pt. 1, Canestraro v. Faerber, 179 W.Va. 793 , 374 S.E.2d 319 (1988).

2. " 'A release ordinarily covers only such matters as may fairly be said to have been within the contemplation of the parties at the time of its execution.' Syllabus Point 2, Conley v. Hill, 115 W.Va. 175, 174 S.E. 883 (1934), overruled on other grounds, Thornton v. Charleston Area Medical Center, 158 W.Va. 504, 213 S.E.2d 102 (1975)." Syl. pt. 3, Cogar v. Sommerville, 180 W.Va. 714, 379 S.E.2d 764 (1989).

3. W.Va.Code, 22A-3-24(b), as amended, part of the West Virginia Surface Coal Mining and Reclamation Act, which requires a coal operator to replace the water supply of an owner of an interest in real property whose water supply has been affected by contamination, diminution or interruption proximately caused by the surface-mining operation, but which statute further provides that the replacement of the water supply may be waived by the owner, is not inconsistent with the parallel federal provision contained in 30 U.S.C. § 1307(b), part of the Surface Mining Control and Reclamation Act.

John McFerrin, John Purbaugh, West Virginia Legal Services Plan, Charleston, for Grover Russell and Etta Russell.

Joseph A. Lazell, Asst. Atty. Gen., Environment and Energy Div., Charleston, for Kenneth Faerber.

James R. Snyder, Jackson & Kelly, Charleston, for Island Creek Coal Co.

McHUGH, Justice:

This case is before the Court upon the appeal of Grover Russell and Etta Russell from the April 19, 1988 order of the Circuit Court of Upshur County, wherein the court granted the appellee, Island Creek Mining Company's motion for summary judgment. The appellants contend that the trial court erroneously granted summary judgment when it held that under the specific provision of the West Virginia Surface Coal Mining and Reclamation Act pled by the appellants, the appellants knowingly waived their private right to obtain damages and equitable relief against the appellee, Island Creek Mining Company, for the alleged contamination of a spring located on the appellants' tract, when they conveyed to the appellee the right to surface mine an adjacent tract and the conveyance contained a waiver of liability for damages to the springs. We affirm.

I

The appellants, the Russells, initially owned approximately sixty-five acres of surface rights in Upshur County, West Virginia. In 1972, they conveyed certain surface rights with respect to roughly sixty acres to Island Creek Coal Company, the predecessor in interest to Island Creek Coal Mining Company. ¹ In exchange for $10,000, the Russells conveyed to Island Creek the following surface rights regarding the sixty-acre tract:

[T]he right to strip the said surface, sub-surface and other strata overlying all of said coal; ... the right to deposit anywhere upon the said surface, sub-surface and/or the space remaining after the removal of any of said coal, such earth, rock, stone, slate and other material as may be produced in connection with the operations hereunder ... all without liability by the grantee, its successors or assigns, for damages arising out of the exercise of such rights to the surface or sub-surface or anything therein or thereon or to the springs and water courses therein or thereon.

(emphasis added)

The Russells reserved from their sixty-five acres of surface rights about five acres, which contained their homestead. The disputed spring is on the reserved five-acre tract, very near the southeastern boundary of the two tracts. ² Mr. Russell admits that, in 1972, he knew that the source of the spring was located on the sixty-acre tract to which he had conveyed the surface rights to Island Creek. Prior to the conveyance, Mr. Russell dug coal, on the sixty-acre tract, that was within one-quarter mile of the spring. ³

In 1982, the Commissioner of the West Virginia Department of Energy issued a mining permit, for the sixty-acre tract, which ultimately was transferred to Island Creek. ⁴

During 1983, the sixty-acre tract was surface mined and the appellants' spring was allegedly further contaminated. For several years the coal operator attempted to rectify the problem. ⁵ When the appellants continued to have poor water quality, they filed a civil action in 1988, seeking common-law and equitable relief due to the alleged noncompliance with the West Virginia Surface Coal Mining and Reclamation Act (WVSCMRA), W.Va.Code, 22A-3-1 to 22A-3-40, as amended. ⁶ They alleged that under their interpretation of the WVSCMRA and the Federal Surface Mining Control and Reclamation Act (SMCRA), 30 U.S.C. §§ 1201-1328, as amended, the appellee, Island Creek, was required to replace their water source at the conclusion of its operations in 1983, and its failure to do so resulted in $20,000 in compensatory damages. The appellants also sought equitable relief to require Island Creek to replace their water supply. Both types of relief were pled specifically against Island Creek, and the appellants specifically relied on W.Va.Code, 22A-3-24 [1985], discussed infra, a provision of the WVSCMRA regulating private water rights. ⁷

All parties moved for summary judgment on the private water rights issue. By order dated April 19, 1988, the trial court granted Island Creek's motion for summary judgment. The court found that, given Mr. Russell's knowledge of the source of the spring, the waiver of private water rights contained in the 1972 deed was specific and knowing in light of the nature of the conveyance, that is, the right to surface mine.

On appeal, the appellants contend that private water rights may not be waived. Alternatively, they argue that in the event private water rights may be waived, the trial court erred in concluding that the appellants knowingly waived them. Both appellees, the Commissioner of the Department of Energy and Island Creek, contend that the appellants' position that private water rights may not be waived is not supported in either the pertinent state or federal provisions.

The 1972 deed waived the right to recover damages to the springs and water courses on the sixty-acre tract. The WVSCMRA, specifically, W.Va.Code, 22A-3-24 [1985], the provision of the Act regulating private water rights, specifically permits owners of an interest in real property to waive their private water rights:

(a) Nothing in this article shall be construed as affecting in any way the rights of any person to enforce or protect, under applicable law, his interest in water resources affected by a surface-mining operation.

(b) Any operator shall replace the water supply of an owner of [an] interest in real property who obtains all or part of his supply of water for domestic, agricultural, industrial or other legitimate use from an underground or surface source where such supply has been affected by contamination, diminution or interruption proximately caused by such surface-mining operation, unless waived by said owner.

(emphasis added)

The federal counterpart to W.Va.Code, 22A-3-24 [1985], namely, 30 U.S.C. § 1307 (1988), is identical to the state provision, except it does not contain the last phrase, "unless waived by said owner."

II

The appellants first contend that although the deed contained a waiver, and although the WVSCMRA clearly permits waivers of private water rights, all such waivers are invalid because the WVSCMRA is, according to the appellants, in conflict with the federal provision, which is silent as to such waivers. Therefore, the appellants urge the Court to read the state provision in a manner that is consistent with its federal counterpart, which they contend would require us to strike the language regarding the possible waiver of private water rights, contained in W.Va.Code, 22A-3-24(b) [1985]. See syl. pt. 1, Canestraro v. Faerber, 179 W.Va. 793, 374 S.E.2d 319 (1988).

As discussed in Canestraro, 30 U.S.C. §§ 1201-1328, as amended, contain the federal statutory law regarding the regulation of surface mining. However, under the primacy concept embodied in 30 U.S.C. §§ 1211, 1253 and 1255, the federal legislation allows states to adopt their own surface-mining reclamation statutes and regulations. In doing so, the state assumes primary jurisdiction. If a state chooses to become the primary regulator of surface mining, however, its laws must be at least as stringent as the federal law, or the state risks federal intervention and loss of its status as the primary regulator. See Canestraro, 179 W.Va. at 794 , 374 S.E.2d at 320.

Therefore, in syllabus point 1 of Canestraro v. Faerber, we held:

When a provision of the West Virginia Surface Coal Mining and Reclamation Act, W.Va.Code, 22A-3-1 et seq., is inconsistent with federal requirements in the Surface Mining Control and Reclamation Act, 30 U.S.C. § 1201 et seq., the state act must be read in a way consistent with the federal act.

Accord, syl. pt. 2, Cogar v. Sommerville, 180 W.Va. 714 , 379 S.E.2d 764 (1989).

Since the adoption of the WVSCMRA, the Court has had three occasions to consider whether various provisions of the WVSCMRA are consistent with the federal statute. When the state statute, on its face, is inconsistent with the federal statute, we have read the requirements of the federal statute into the state statute. In other instances, where the inconsistency is not immediately apparent by a mere comparison of the two provisions, we have...