Smerdell v. Consolidation Coal Co.

Citation806 F. Supp. 1278
Decision Date30 April 1992
Docket NumberCiv. A. No. 91-0050-C(S).
CourtU.S. District Court — Northern District of West Virginia
PartiesJean SMERDELL and Joseph Smerdell, Plaintiffs, v. CONSOLIDATION COAL COMPANY, a Delaware corporation, Defendant.

Clark B. Frame, Morgantown, W.Va., for plaintiffs.

Stephen P. McGowan, Charleston, W.Va., for defendant.


STAMP, District Judge.

I. Background

Plaintiff Jean and Joseph Smerdell filed this action in the Circuit Court of Monongalia County, West Virginia on May 7, 1991. Pursuant to 28 U.S.C. § 1446, defendant Consolidation Coal Company ("Consolidation") removed this action to the United States District Court for the Northern District of West Virginia and filed its answer to plaintiffs' complaint on June 6, 1991.

Plaintiffs seek through this action to recover for alleged damage to their persons and real property as a result of the coal mining activities conducted by Consolidation. Specifically, plaintiffs seek recovery in the amount of $100,000.00 plus the costs of prosecution.

Plaintiffs are West Virginia residents. Defendant is a Delaware corporation with its principal place of business in Pennsylvania. The matter in controversy in this action exceeds $50,000.00. This Court has jurisdiction over plaintiffs' claims pursuant to 28 U.S.C. § 1332.

On March 6, 1992, Consolidation filed a Motion for Summary Judgment with an accompanying statement of material facts and memorandum of law pursuant to Fed. R.Civ.P. 56. Plaintiffs filed a responsive brief in opposition to defendant's motion on March 6, 1992. Consolidation filed its reply brief on March 24, 1992. All discovery in this action was to be completed by January 31, 1992.

The Court has now reviewed the applicable law and Consolidation's motion and the memoranda in support thereof and in opposition thereto, and for the reasons stated herein, concludes that Consolidation's Motion for Summary Judgment must be, and hereby is, GRANTED.

II. Uncontested Material Facts

Plaintiffs own the surface rights to certain real property located in Clay District, Monongalia County, West Virginia, upon which is situated a single family residence. Plaintiffs acquired this property in 1969 and have resided in residence since that time.

By deed dated August 22, 1905, plaintiffs' predecessors in title conveyed to defendant's predecessors in title "all of the coal of the Pittsburg or River Vein in and under" plaintiffs' real property, "together with the right to mine and remove all and every part of said coal with free access at all times for said purposes, and without liability for any damage to the overlying strata, or to anything therein or thereon, in mining and removing said coal."

Consolidation began mining operations of the P-4 longwall panel at the Blacksville Number 1 Mine on July 30, 1987, which mining was completed on May 27, 1988. While plaintiffs' residence is not located above the P-4 longwall panel, the Smerdell residence is located over the Blacksville Number 1 Mine reserves. The mining closest to the plaintiffs' residence occurred during the first week of January 1988.

Plaintiffs heard a loud noise in their basement during May 1988. Subsequently, plaintiffs discovered cracks in their basement and other damage to their real property. Plaintiffs allege that all of the damage to their dwelling was the proximate result of Consolidation's mining activities.

III. Contentions of the Parties

Consolidation, in its motion for summary judgment, raises a state common law defense to plaintiffs' action. Consolidation argues that plaintiffs' predecessors in title by express language in the 1905 deed validly waived any right that might have existed to subjacent support for the tract in question as well as any right to recover from defendant for damages resulting from subsidence caused by negligent mining.

Plaintiffs contend in their responsive brief that the Surface Mining Control and Reclamation Act SMCRA, 30 U.S.C. § 1201 et seq.,1 and the West Virginia Surface Coal Mining and Reclamation Act WVSCMRA, W.VA.CODE § 22A-3-1 et seq. have rendered the purported waivers of plaintiffs' predecessors in title void and require that this Court deny defendant's motion.2 Plaintiffs also respond that the 1905 damage liability clause is rendered unenforceable by changed circumstances.

The Court will address each of the parties' contentions in turn.

IV. Rule 56 Standards

Under Fed.R.Civ.P. 56(c), summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to material fact and the moving party is entitled to judgment as a matter of law." Id. The party seeking summary judgment bears the initial burden of showing the absence of any issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). However, as the United States Supreme Court noted in Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), "Rule 56(c) itself provides that a party opposing a properly supported motion for summary judgment may not rest upon mere allegation or denials of the pleading, but must set forth specific facts showing that there is a genuine issue for trial." Id. at 256, 106 S.Ct. at 2514. "The inquiry performed is the threshold inquiry of determining whether there is the need for a trial — whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Id. at 250, 106 S.Ct. at 2511. See also Trivathan v. Newport News Shipbuilding & Dry Dock Co., 944 F.2d 902 (4th Cir.1991) table ("Summary judgment should be granted only in those cases where it is perfectly clear that no issue of fact is involved and inquiry into the facts is not desirable to clarify the application of the law." Citing Charbonnage De France v. Smith, 597 F.2d 406, 414 (4th Cir.1979); Stevens v. Howard D. Johnson Co., 181 F.2d 390, 394 (4th Cir. 1950)).

In Celotex, the Court stated that "the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S.Ct. at 2552. Summary judgment is not appropriate until after the non-moving party has had sufficient opportunity for discovery. Oksanen v. Page Memorial Hospital, 912 F.2d 73, 78 (4th Cir.1990). In reviewing the supported underlying facts, all inferences must be viewed in the light most favorable to the party opposing the motion. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986).

Consolidation has attached affidavits and documentary evidence to its brief supporting the facts alleged therein. Plaintiffs have supplemented the factual assertions in their brief with a transcript of a pretrial hearing in the Circuit Court of Kanawha County and a proposed order tendered to that Court. No discovery requests are outstanding.

V. Whether There Is Any Issue of Material Fact That Would Preclude a Grant of Summary Judgment in Favor of Consolidation Coal Company

The primary question that this Court must address is whether any disputed issues as to material fact exist that must be decided by the finder of fact before the relevant law can be applied. After a review of all materials before it, the Court concludes that no materially factual issues in dispute exist so as to survive defendant's Motion for Summary Judgment. The only questions remaining in the case are wholly questions of law, which this Court can and must resolve at this stage of the case. This Court concludes that defendant Consolidation Coal Company is entitled to summary judgment.


Consolidation argues that the express language in the 1905 deed validly waived any right that plaintiffs might have had to subjacent support for the tract in question as well as any right to recover from defendant for damages resulting from subsidence caused by negligent mining.


The parties do not dispute that West Virginia common law permits surface owners to waive the right to subjacent support. See Cogar v. Sommerville, 180 W.Va. 714, 379 S.E.2d 764, 769 (1989); Rose v. Oneida Coal Co., 180 W.Va. 182, 375 S.E.2d 814, 816 (1988); Erwin v. Bethlehem Steel Corp., 134 W.Va. 900, 62 S.E.2d 337, 341 (1950); Winnings v. Wilpen Coal Co., 134 W.Va. 387, 59 S.E.2d 655, 658 (1950); Continental Coal Co. v. Connellsville By-Product Coal Co., 104 W.Va. 44, 138 S.E. 737 (1927); Godfrey v. Weyanoke Coal & Coke Co., 82 W.Va. 665, 97 S.E. 186 (1918). For the waiver to be valid, the language purporting to waive the right to subjacent support must "clearly show that the owner of the land intends to waive the right." Winnings, 59 S.E.2d at 659 citing Simmers v. Star Coal & Coke Co., 113 W.Va. 309, 167 S.E. 737 (1933); Continental Coal, 104 W.Va. 44, 138 S.E. 737, Hall v. Harvey Coal & Coke Co., 89 W.Va. 55, 108 S.E. 491 (1921).

The 1905 deed severing the mineral rights from the surface owner of the land in question states that the mineral owners may mine the coal "without liability for any damage to the overlying strata, or to anything therein or thereon, in mining and removing said coal." This language could not be more clear: the plaintiffs' predecessors in title clearly intended to waive the right to subjacent support. While the West Virginia Supreme Court of Appeals stated in Cogar, 379 S.E.2d at 769, that "waivers of this nature are strictly construed," the Supreme Court of Appeals continued to recognize the validity of such waivers when they are unambiguous.

The West Virginia Supreme Court of Appeals refused to imply any reservation of...

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