Wagoner v. Jack's Creek Coal Corp.
| Decision Date | 20 January 1958 |
| Docket Number | No. 4756,4756 |
| Citation | 199 Va. 741,101 S.E.2d 627 |
| Court | Virginia Supreme Court |
| Parties | JACK WAGONER, JR. v. JACK'S CREEK COAL CORPORATION. Record |
George C. Sutherland (S. H. & George C. Sutherland, on brief), for the plaintiff in error.
C. H. Combs (Combs, Combs & Street, on brief), for the defendant in error.
The plaintiff, Jack Wagoner, Jr., instituted this action seeking compensation from the defendant, Jack's Creek Coal Corporation for hauling coal in trucks over a road on the plaintiff's land, by reason of which he alleged that the defendant had benefited to the extent of $4,500, which it should pay to the plaintiff. At the conclusion of plaintiff's evidence the court struck it out, judgment was entered for the defendant and the plaintiff appeals.
Most of the evidence offered by the plaintiff related to the damage to the road caused by the hauling and was irrelevant to the issue presented. His motion for judgment was in assumpsit for the use and occupation of his land. His counsel stated in the argument on the defendant's motion to strike that he was suing in assumpsit on the ground that the defendant 'had no right to pass over the land to haul the coal and [plaintiff] was not suing for the damages as a result of the failure of defendant to properly maintain the road.' The court then struck out the evidence of the plaintiff on the grounds that the defendant had a right to use the road by an express reservation in the deed through which the plaintiff derived title to his land, as well as by an implied reservation due to the fact that the road was the only outlet from other lands owned by the plaintiff's predecessor in title.
The land owned by the plaintiff and the land from which the coal was hauled by the defendant were parts of one tract of steep, mountainous land formerly owned by A. J. Charles and lying on both sides of Jack's Creek, in Buchanan county. In 1902 A. J. Charles and wife conveyed to their son, J. C. Charles, 200 acres on the lower end of this tract and on both sides of the creek. This deed was made subject to 'the following exception to wit:
'A wagon Haul Road with meanders of the creek through said tract of land for the benefit of those that are settled & may settle on said creek an -- hereby excepted by the parties of the first part.' *
This 200-acre tract was conveyed in 1935 by J. C. Charles to his daughter, Maude Johnson, who in 1946 conveyed the surface to Roland Lee, reserving the coal and other minerals together with all necessary rights and privileges for mining and removing them. By deed of November 29, 1946, Lee conveyed this surface subject to the same mining rights and privileges to the plaintiff, Wagoner.
In 1906 A. J. Charles conveyed the balance of his land on Jack's Creek and lying above the 200 acres, one tract to his daughter, Gusta Elswick, and the other to his son, Miles Charles. It was stipulated that the defendant was the owner of the coal on these two tracts 'with the right to mine and remove same.'
The plaintiff testified that in September, 1954, the defendant began hauling over the road in question coal mined from the plaintiff's land and from the Elswick and Miles Charles tracts, and so used the road until February 15, 1956, when it ceased mining. It was stipulated that in that period the defendant hauled 32,754 tons of coal from its two tracts and if the plaintiff was entitled to recover it should be at the rate of three cents a ton.
The 200 acres, the surface of which was owned by the plaintiff, was originally the homeplace of A. J. Charles, plaintiff's predecessor in title, and plaintiff testified that for 25 years or more before he purchased people had passed up and down over a road through his land which was partly in the creek; that there was a fence along the edge of the creek and after the plaintiff got his deed he moved this fence back from the creek and widened and leveled the road all the way through his land to make it passable for automobiles and permitted all the people living above him to use it for any purpose; that the defendant, during the time it used the road, scraped it from the head of Jack's Creek out to the State highway and the only complaint about its use made by the plaintiff was in December, 1954, and that was directed only to defendant's failure to keep it in repair.
Plaintiff testified that during the time the defendant was using the road there was a sawmill in operation on the Miles Charles tract above his land, begun in 1949, and logs and lumber were hauled over this road in connection with that operation, and plaintiff himself had driven a truck and had hauled logs and lumber to and from this sawmill over this road. Plaintiff conceded that the road used by the defendant was the only road from the Elswick and Miles Charles tracts down Jack's Creek to the State highway.
Other witnesses for the plaintiff testified to the effect that plaintiff and some other residents improved the road so cars could get from the mouth of Jack's Creek to and through plaintiff's land; that as long as they could remember there had been a road up Jack's Creek over the land now owned by the plaintiff, open to the public generally, but it was mostly in the creek bed and could not be used in times of high water; that in places below plaintiff's land the defendant had raised the road up out of the creek and improved it, and that it was a better road after the sawmill and mining operators began using it than it was before. One of the plaintiff's witnesses testified that he moved to the Miles Charles tract in 1915; that the road over the plaintiff's land was partly in the creek until plaintiff moved his fence back and improved the road; that while he lived there he recalled no objection being made to the use of the road.
As noted, the road over plaintiff's land, excepted in the deed to his predecessor in title, was 'a wagon Haul Road.' The plaintiff in his brief does not base his claim for recovery upon the fact that the defendant used trucks and not a wagon for hauling the coal. In his oral argument he stated that he was not complaining of the type of vehicles used by the defendant, and in his brief he said that '(this) is a suit based on the benefit the defendant derived from the use and...
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