United States v. Polino

• Decision Date: 06 June 1955
• Docket Number: Civ. A. No. 250-E.
• Citation: 131 F. Supp. 772
• Parties: UNITED STATES of America, Plaintiff, v. Sam G. POLINO, Joseph Polino, A. R. Steele, Frank Delsardo and Bowden Coal Company, Defendants.
• Court: U.S. District Court — Northern District of West Virginia

131 F. Supp. 772

UNITED STATES of America, Plaintiff, v. Sam G. POLINO, Joseph Polino, A. R. Steele, Frank Delsardo and Bowden Coal Company, Defendants.

Civ. A. No. 250-E.

United States District Court N. D. West Virginia, at Elkins.

June 6, 1955.

John R. Morris, U. S. Atty., Clarksburg, W. Va., Roderick A. Devison, Asst. U. S. Atty., Fairmont, W. Va., for plaintiff.

Cyrus S. Kump, Elkins, W. Va., for defendants.

BOREMAN, District Judge.

It becomes necessary in this case to determine, as a matter of law, whether or not a reservation of coal and mining rights contained in a certain deed carried with it the legal right to employ mining methods known as "strip mining" in the mining and removing of certain coal described in the pleadings.

By deed dated the 28th day of June, 1917, a tract of land containing 1,120.24 acres, situate in Randolph County, in the State of West Virginia, was conveyed to the United States of America by Davis Land Company, a corporation. A certain portion of said acreage, known as Tract No. 22, located in Randolph County in the Northern District of West Virginia, was subsequently set apart by the United States for the purpose of protection of water sheds, the prevention of erosion, the growth of timber, the development of wild life and recreation, the same being a part of lands generally designated as Monongahela National Forest.

The deed from Davis Land Company to the United States contains the following reservation of the minerals and mining rights:

"Reservation

"There is also excepted from the operation of this deed and reserved to the party of the first part, its successors and assigns, the right to mine and remove minerals from the above described land herein conveyed, provided that the mining and removal of minerals so reserved shall be done strictly in accordance with the following rules and regulations prescribed by the Secretary of Agriculture, which said rules and regulations are hereby incorporated in and made a part of this deed of conveyance, to the United States as required by Section 9, of the Act under which these lands are acquired, and provided further that, to secure the faithful observance of these rules and regulations the party of the first part, its successors and assigns, before commencing to mine or remove minerals, shall deliver to the proper Government officials a bond in the penal sum of Two Thousand Dollars ($2,000.00) with good and sufficient surety;

"Department of Agriculture

General Rules and Regulations for the Mining and Removal of Minerals, to be Inserted in Conveyances to the United States of Lands Purchased Under the Act of March 1, 1911^* (37 Stat., 961) When Mineral Rights Are Reserved.

"1. Anyone claiming the right to mine or search for minerals or mineral products in or upon lands acquired by the United States under the provisions of the Act of March 1, 1911, (Public No. 435) with a reservation of mineral rights to the grantor, must, on demand, exhibit to the Forest Officer in charge, satisfactory written evidence of right or authority derived from, through, or under the said grantor. Mining or searching for minerals except by those producing such evidence of right or authority is forbidden.

"2. In carrying on mining operations and in searching for minerals only so much of the surface shall be occupied or disturbed as is reasonably necessary for the purpose.

"3. In underground mining all reasonable and usual provision shall be made for the support of the surface, and to that end the tunnels, shafts, and other workings shall at all reasonable times be open to inspection and examination by the Forest Officers and mining experts or inspectors of the United States."

Subsequently, Davis Land Company sold and conveyed to Davis Coal Land Company, a corporation, the coal and other minerals in, upon and underlying these same lands and, by an agreement of lease dated the 10th day of December, 1941, Davis Coal Land Company leased to the defendant in this case, Bowden Coal Company, a corporation, "all the coal of the Sewell Seam, with the privilege to the Lessee, but under no obligation on its part, to mine and remove other seams thereunder". This lease agreement pertained to coal only and did not include any other minerals.

After obtaining its coal lease, Bowden Coal Company began mining operations on a part of Tract No. 22 and removed a considerable quantity of coal by the deep or shaft mine method, whereby the coal was removed from beneath the surface of the land, disturbing only so much of the surface as was necessary in conducting such operations. These lands are located in mountainous country and it was necessary to excavate and remove enough of the surface of the mountainside to provide level ground upon which to construct the Lessee's tipple, power house, other small buildings, railroad tracks and sidings and roadways. The United States recognized the right of Bowden Coal Company to conduct these underground mining operations and made no objection thereto.

The complaint filed by the United States charged that the Lessee of the coal, Bowden Coal Company, and certain individual defendants, without the consent or permission, and in disregard of the rights, of plaintiff, and in violation of the rules and regulations of the Secretary of Agriculture as contained in the deed from Davis Land Company to the United States, mined by the "strip mining" method a 16.3 acre area, a part of said Tract No. 22, the Monongahela National Forest land of the United States. It was further charged that this stripping operation consisted of the removal of all of the soil overlying the Sewell Seam of coal extending in each direction from the then existing deep mine opening for a total distance of a mile or more around the mountainside, thereby destroying valuable timber, top soil and young growth.

The uncovering of the seam of coal was accomplished by digging deep into the mountainside with a large power shovel, followed by a power bulldozer which pushed the earth, timber, etc., over the mountainside, leaving a level strip of ground varying in width from approximately 50 feet to several hundred feet. The Government charged that this was a strip mining operation, while the Bowden Coal Company contended that it was merely attempting to conduct an exploratory operation to determine the "lay" of the Sewell Seam of coal for the purpose of establishing other deep mine openings from which to conduct underground operations.

In arriving at a determination of the question here presented, namely, does the Bowden Coal Company have the right to conduct coal strip mining operations on these lands of the United States, this Court is bound by the decision of the United States Supreme Court, Erie Railroad Co. v. Tompkins, 1938, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, and is required to apply the laws of this State as contained in the decisions of the Supreme Court of West Virginia.

There are some decisions of the Supreme Court of Appeals of West Virginia relating to this question. In Oresta v. Romano Bros., ...