West Va.-Pittsburgh Coal Co. v. Strong

• Citation: 129 W.Va. 832
• Decision Date: 18 March 1947
• Docket Number: C. C. No. 713.
• Court: Supreme Court of West Virginia
• Parties: West Virginia-Pittsburgh Coal Co., a Corporation v. Isabelle Strong, et al. (CC 713 )

129 W.Va. 832

West Virginia-Pittsburgh Coal Co., a Corporation

v.Isabelle Strong, et al.

C. C. No. 713.

Supreme Court of Appeals of West Virginia.

Submitted January 8, 1947.

Decided March 18, 1947.

1. Customs and Usages

In order for a usage or custom to affect the meaning of a contract in writing because within the contemplation of the parties thereto, it must be shown that the usage or custom was one generally followed at the time and place of the contract's execution.

2. Perpetuities

The provisions of an instrument that purport to grant the right to purchase real estate at any time in the future upon terms otherwise binding, are void as constituting a violation of the rule against perpetuities.

Certified from Circuit Court of Brooke County.

Suit by West Virginia-Pittsburgh Coal Co., against. Isabelle Strong and others for a declaratory judgment adjudicating plaintiff's rights under a certain deed. The Circuit Court sustained a demurrer to the bill of complaint and certified the questions of law arising thereon.

Affirmed.

Fox, President, dissenting.

Hall, Paul & Phillips, for plaintiff.

McCamic & Clarke and Rudolph E. Hagberg, for defendant.

Mahan, White, Higgins and Laird and Dayton R. Stemple, amicus curiae.

Kenna, Judge:

This declaratory judgment proceeding was brought in the Circuit Court of Brooke County by West Virginia-Pittsburgh Coal Company against Isabelle Strong, J. C. Strong, Lydia K. Boyd and Walter E. Mahan, Trustee, for the purpose of having adjudicated its rights under the provisions of a deed to complainant's remote grantor conveying all of the coal underlying a tract of 127.74 acres, excepting ten acres immediately surrounding a dwelling, and in addition expressly granting to the then grantee, together with the right to enter upon the land for the purpose of mining the coal and using the land in ways that would facilitate its removal, the right and obligation to purchase the surface lying above the Pittsburgh No. 8 vein which the owner of the coal might occupy or use for its operations. The defendants are the owners and lienors of the remaining freehold and the controversy arises from the denial by the owners of the complainant's alleged right to "strip mine" approximately eight acres of the Pittsburgh No. 8 vein by virtue of the mining rights granted it or to acquire that right by purchase from the owners of the surface overlying that vein, both, in addition to all the coal underlying the tract of 127.74 acres, acquired by the plaintiff remotely from the original grantee of the coal and contract rights created by the fee owner in the year 1904. The severance of the coal from the remaining freehold occurred in a deed from W. H. Boyd to Bernard W. Lewis and G. B. Findley, dated May 31, 1904, which, following the conveyance of all of the coal underlying the 127.74 acre tract, contained the following provisions:

"Together with the right to enter upon and under said land with employees, animals and machinery at convenient point and points, and to mine, dig, excavate and remove all said coal, and to remove and convey from, upon, under and through, said land all said coal and the coal from other land and lands and to make and maintain on said land all necessary and convenient structures, roads, ways, and tramways, railroads, switches, excavations, air-shafts, drains and openings, for such mining, removal and conveying of all coal aforesaid, with the exclusive use of all such rights of way and privileges aforesaid, including right to deposit mine refuse on said land and waiving all claims for injury or damage done by such mining and removal of coal aforesaid and use of such privileges.

"All of the surface of the said land occupied or used by the said parties of the second part, or their assigns, above the level of the Pittsburg # 8 vein of coal, for their operations herein shall be paid for before the same shall be so used, or occupied, at the rate of One Hundred Dollars per acre, and said party of the first part, his heirs or assigns shall execute and deliver a deed therefor, in fee simple, free from liens and incumbrances, when said surface shall be taken and paid for."

The prayer of the bill of complaint is that the court may adjudicate and declare the plaintiff's right to mine, dig, excavate and remove all the coal underlying the 127 acre tract with the exception of the named ten acres; that all of the rights of the plaintiff in and to the lands of the defendant Isabelle Strong may be adjudged and declared; that the defendant Isabelle Strong may be required to specifically perform the covenants concerning the conveyance of the surface lying above the Pittsburgh No. 8 seam in a described parcel of 22.6 acres that contains all of the coal alleged as remaining on the entire boundary for the sum of $2260.00, tendered to and refused by Isabelle Strong, and that J. C. Strong may also be required to execute a conveyance to the plaintiff therefor in order to release his inchoate right of dower; and that the defendants may be perpetually enjoined from interfering in any manner with the enjoyment by the plaintiff of its alleged rights.

The Circuit Court of Brooke County sustained a demurrer to the bill of complaint and certified to this Court the questions of law arising, the order making that court's written opinion a part of the record.

The declaratory judgment act clearly recognizes the difference between simply adjudicating "right, status and other legal relations" and the granting of relief, Code, 55-13-8, providing expressly that relief may be sought by petition following a declaratory judgment. The act further provides that a contract may be construed either before or after its breach, thus expressly recognizing that jurisdiction under the act is not re- stricted to cases in which either a right of action or cause for equitable relief has not accrued, but that jurisdiction under the act includes as well matters in which jurisdiction could also be exercised either in chancery or at law. It can be understood why a breach of contract occurring after the institution of a proceeding under the declaratory judgment act should not divest a court of its jurisdiction to function under the act, but since the whole spirit of the act is to anticipate the actual accrual of causes for equitable relief or rights of action, by anticipatory orders which adjudicate real controversies before violation or breach results in loss to one or the other of the persons involved, it is difficult to perceive the necessity of the broad terms of Section 3. Cases that can otherwise be brought into court do not fall within the principle underlying the declaratory judgment act.

We believe that it is quite clear that the bill of complaint is demurrable to the extent that it combines a prayer for an adjudication of rights with a prayer for specific relief. Under the terms of the act the latter can be granted only to the extent that it is justified by a subsequent separate petition. Code, 55-13-8.

The bill of complaint expressly alleges that the removal of the eight acres of coal within the boundary of 22.6 acres, on account of the shallow overburden, is possible only by "excavating the surface above the said coal to expose the said coal, and then digging and removing the same", i. e. "strip mining". As we have stated, the contentions advanced by the complainant below are, first, that the mining rights expressly granted in the deed to plaintiff's remote grantor include the right to strip mine any part of the coal granted; and second, that the right to purchase the surface of the boundary of 22.6 acres confers upon the plaintiff the right to strip mine under the surface thus acquired.

In this matter the mining rights are expressly granted and do not rest upon necessary implication as in a case where the coal is granted without the express grant of mining rights, the express terms of the grant of the rights serving to restrict the rights conferred thereto.

The prayer of plaintiff's bill is drawn in a double aspect, first, to enjoin the defendant from interfering with the mining rights to which it has succeeded, created in the Boyd to Lewis deed in 1904, and second, to require specific performance of its right to purchase the surface lying above the Pittsburgh No. 8 vein in the tract of 22.6 acres.

As to the first aspect of the prayer of the bill, from its allegations the only respect in which the defendants have refused to acknowledge what the plaintiff asserts to be its mining rights, is in refusing to permit the plaintiff to remove the surface lying above the Pittsburgh No. 8 vein or to strip mine that seam. We are of the opinion, arrived at by reading the instrument as a whole, that it was the manifest intention of the parties to preserve intact the surface of the entire tract, subject to the use of the owner of the coal "at convenient point or points" in order "to mine, dig, excavate and remove all of said coal" by the usual method at that time known and accepted as common practice in Brooke County. We do not believe that this included the practice known as strip mining.

In applying similar language in the case of Rock House Fork Land Company v. Raleigh Brick and Tile Company, 83 W. Va. 20, 24, 97 S. E. 684, this Court said:

"In this case we have no evidence as to the situation of the parties at the time of the grant, or their conduct under it, which would aid us in the interpretation of it. We have, however, language used in the deed conveying certain mining rights. The grant of these rights is to mine, excavate and remove all the coal; make and maintain all necessary railroads, excavations, ways, shafts, drains, drainways and openings necessary and convenient for the mining and removeal of said coal and other minerals. Substantial aid is afforded by this language in determining what the parties meant by the term, other minerals, in the grant. The rights granted for the removal of these minerals are such rights as are incident...