Winnings v. Wilpen Coal Co.

• Decision Date: 16 May 1950
• Docket Number: No. 762,762
• Citation: 59 S.E.2d 655,134 W.Va. 387
• Parties: WINNINGS et al. v. WILPEN COAL CO. C. C.
• Court: West Virginia Supreme Court

Page 655

59 S.E.2d 655

134 W.Va. 387

WINNINGS et al. v. WILPEN COAL CO.

C. C. No. 762.

Supreme Court of Appeals of West Virginia.

Submitted April 18, 1950.

Decided May 16, 1950.

Syllabus by the Court.

1. A landowner who conveys the coal underlying the surface of his land has an absolute property right to subjecent support for the surface in its natural state and, though he may sell or dispose of such right, he will not be deemed to have conveyed, parted with, or extinguished it unless his intention so to do clearly appears from express language or by necessary implication.

2. A deed of severance of the surface from the underlying coal in a tract of land which grants all the coal and contains a mining clause which conveys 'all necessary and convenient rights of way of ingress or egress in, over and through said land for the purpose of mining and removing said coal and other mineral or minerals upon other adjacent lands' does not divest the owner of the surface of the land of his absolute right to subjacent support for the surface in its natural state and the operator of the coal, by such clause, is not relieved of liability to such owner for damages for injury to the surface and the destruction of a dwelling house and a spring of water located on it caused by the breaking or the subsidence of such surface in the mining and the removal of the underlying coal.

3. The rule of property adopted and applied in Griffin v. Fairmont Coal Co., 59 W.Va. 480, 53 S.E. 24, 2 L.R.A., N.S., 1115, and Simmers v. Star Coal & Coke Co., 113 W.Va. 309, 167 S.E. 737, does not here apply, and those cases are distinguished from the case at bar.

4. Damages for injuries to the surface and the destruction of a dwelling house and a spring of water located upon it which result from the breaking or the subsidence of the surface caused by the removal of subjacent support in the mining of the underlying coal are immediate and proximate and are recoverable by the owner of the surface from the operator who destroys the subjacent support for such surface in its natural state.

S. H. Sharp and Geo. S. Sharp, Marlinton, for plaintiffs.

John A. Lile, Lewisburg, Chas. E. Mahan, Fayetteville, for defendant.

HAYMOND, Judge.

In this action of trespass on the case, instituted in the Circuit Court of Greenbrier County, West Virginia, the plaintiffs, Denver Winnings and Alfreda Winnings, seek a recovery against the defendant, Wilpen Coal Company, a corporation, for damage to the land of the plaintiffs consisting of breaks, cracks and subsidence of the surface and destruction of a dwelling house and a valuable fresh water spring, caused by the failure of the defendant, in mining and removing an underlying seam of coal, to provide adequate support for the overlying surface. To the declaration, which contains two counts, the defendant filed a written demurrer. The circuit court sustained the demurrer to each count of the declaration and on its own motion certified its ruling to this Court.

The declaration alleges the material facts hereinafter stated which, to the extent that they are well pleaded, must be accepted as true upon demurrer.

The plaintiffs jointly own and possess in fee simple the surface of three contiguous parcels of land fronting 120 feet on Rebecca Street in the Town of Quinwood, in Greenbrier County. These lots are part of a tract of 1589 1/2 acres of land which was formerly owned by C. L. McClung, from whom the plaintiffs obtained title to the surface by several intermediate deeds of conveyance. By deed dated August 19, 1892, from C. L. McClung and wife to H. H. Fay, R. H. Crozer and M. Erskine Miller, trustees, the surface was severed from the coal and the other minerals in and underlying the tract of 1589 1/2 acres, and the coal and the other minerals were conveyed to the grantees. The deed of severance granted all the coal and other minerals in, upon and under the foregoing tract of land 'together with all necessary and convenient rights of way of ingress or egress in, over and through said land for the purpose of mining and removing said coal and other mineral or minerals upon other adjacent lands'. Subsequently, by deed dated February 22, 1894, C. L. McClung and wife conveyed the surface of a portion of the tract of 1589 1/2 acres to O. G. McClung and others. The three lots owned by the plaintiffs lie within the tract conveyed by this deed and the plaintiffs derived their title from O. G. McClung and others by various mesne conveyances. Prior to October, 1948, the defendant, also by various mesne conveyances and leases from H. H. Fay, R. H. Crozer and M. Erskine Miller, trustees, and others, acquired its right to mine and remove the coal beneath the surface of the lots owned by the plaintiffs. From October, 1948, until the institution of this action the defendant, as sublessee from Johnstown Coal and Coke Company, the lessee from the owner, Gauley Coal Land Company, mined and removed the coal beneath the surface owned by the plaintiffs without leaving sufficient pillars or other adequate support, and in so doing caused such surface to break, crack and subside and destroyed the dwelling house of the plaintiffs of the value of $3,000.00 and a spring of running water of the value of $1500.00, both of which were located upon the surface of the land owned by the plaintiffs. The damages laid in the declaration are in the sum of $5,000.00.

In the first count of the declaration the plaintiffs base their right to recover on the theory that the defendant, as sublessee of the coal, in mining and removing it, under the deed of severance, owed to the plaintiffs as owners of the overlying surface the duty to leave sufficient subjacent support for such surface and failed to discharge that duty. In the second count of the declaration, the plaintiffs allege facts to show that the defendant, as a trespasser, owed the plaintiffs, as owners of the surface, the duty, in mining and removing the coal, to furnish adequate subjecent support for the surface and that the defendant, in failing to observe that duty, wrongfully deprived the plaintiffs of their right to subjacent support.

The principal question presented by this certificate is whether the foregoing deed of severance, subject to which the plaintiffs hold title to the surface of their land, waived or released to the owner of the underlying coal the right of the owners of the overlying surface to adequate subjacent support for such surface.

The plaintiffs contend that under the decision of this Court in Hall v. Harvey Coal & Coke Co., 89 W.Va. 55, 108 S.E. 491, 493, they have the right of subjacent support for the surface of their land and that the defendant is liable for damages for its failure to maintain and provide adequate subjacent support for such surface in its natural state. In that case this Court held that a conveyance of the coal and all minerals with the right to mine and remove 'the said coal and all minerals from said land', did not extinguish the right of the grantor to subjacent support for the protection of the surface of the land in its natural state in the event of the removal of the coal.

Contrary to the contention of the plaintiffs, the defendant insists that the deed of severance deprived the owners of the overlying surface of the right of subjacent support and that under the decisions of this Court in Griffin v. Fairmont Coal Co., 59 W.Va. 480, 53 S.E. 24, 2 L.R.A., N.S., 1115, and Simmers v. Star Coal & Coke Co., 113 W.Va. 309, 167 S.E. 737, the mining rights conveyed by that deed permit the removal of all the coal free of any obligation to provide subjacent support for the overlying surface.

The well recognized and firmly established rule is that when a landowner has conveyed the minerals underlying the surface of his land, he retains the right to the support of the surface in its natural state unless it clearly appears, by express words or by necessary implication, that he has released, waived, or qualified his right to such support. Continental Coal Co. v. Connellsville By-Product Coal Co., 104 W.Va. 44, 138 S.E. 737; Cole v. Signal Knob Coal Co., 95 W.Va. 702, 122 S.E. 268, 35 A.L.R. 1134; Goodykoontz v. White Star Mining Co., 94 W.Va. 654, 119 S.E. 862; Hall v. Harvey Coal & Coke Co., 89 W.Va. 55, 108 S.E. 491; Godfrey v. Weyanoke Coal & Coke Co., 82 W.Va. 665, 97 S.E. 186; Griffin v. Fairmont Coal Co., 59 W.Va. 480, 53 S.E. 24, 2 L.R.A., N.S., 1115. The owner of land, however, may release or waive his property right of subjacent support by the use of language which clearly shows that he intends to do so. Simmers v. Star Coal & Coke Co., 113 W.Va. 309, 167 S.E. 737; Continental Coal Co. v. Connellsville By-Product Coal Co., 104 Wa.Va. 44, 138 S.E. 737; Hall v. Harvey Coal & Coke Co., 89 W.Va. 55, 108 S.E. 491. In the Continental Coal Company case this Court said: 'That a landowner may sell his subjacent support can scarcely be questioned. It is a valuable property right, as much so as the mineral underneath or the timber growing on the surface, and the courts have been careful to preserve it unimpaired wherever it is possible to do so. It is not to be taken from him by implication.' [104 W.Va. 44, 138 S.E. 741]

In several cases this Court has considered and discussed the right of the landowner to subjacent support for his surface and the effect of provisions relating to that right in various deeds of severance of coal and other minerals from the surface of the land. Griffin v. Fairmont Coal Co., 59 W.Va. 480, 53 S.E. 24, 2 L.R.A., N.S., 1115; Godfrey v. Weyanoke Coal & Coke Co., 82 W.Va. 665, 97 S.E. 186; Hall v. Harvey Coal & Coke Co., 89 W.Va. 55, 108 S.E. 491; Goodykoontz v. White Star Mining Co., 94 W.Va. 654, 119 S.E. 826; Cole v. Signal Knob Coal Co., 95 W.Va. 702, 122 S.E. 268, 35 A.L.R. 1134; Continental Coal Co. v. Connellsville By-Product Coal Co., 104 W.Va. 44, 138 S.E. 737; Drummond v. White Oak Fuel Co., 104 W.Va. 368, 140 S.E....