Present: All the Justices
LEVISA COAL COMPANY
OPINION BY
v. Record No. 070580 JUSTICE LAWRENCE L. KOONTZ, JR.
June 6, 2008
CONSOLIDATION COAL COMPANY
FROM THE CIRCUIT COURT OF BUCHANAN COUNTY
Keary R. Williams, Judge
This appeal arises from a dispute between the owner of a
solid mineral estate subject to a long-term mining lease and a
third party. The dispute involves the storage of wastewater
from the third party’s mining operations on other lands in a
particular mine located within the subject leasehold but with
the lessee’s permission. The owner of the solid mineral estate
sought an injunction and declaratory judgment to prevent the
third party from using the mine, which had been idled by the
lessee, as a wastewater storage pit. We consider whether the
circuit court erred in adjudicating that the third party “has a
right to store excess water” from its mine in the mine in
question and in denying the requested injunctive relief.
BACKGROUND
In 1937, Levisa Coal Corporation, the predecessor in
interest to Levisa Coal Company, the plaintiff-appellant herein,
acquired by severance deed the solid mineral estate and timber
rights on various parcels of land in Buchanan County (“the
Buchanan County parcels”). 1 The severance deed conveyed to
Levisa Coal ownership of “the coal, metals and timber, together
with all the rights, privileges and easements incident thereto,
in, on or under” the lands described in the deed. However, the
severance deed did not expressly convey to Levisa Coal the right
to use any part of the estate conveyed or the attendant
easements to support mining activities on other lands. By a
separate and subsequent severance deed, the rights to the oil
and gaseous mineral estates of the Buchanan County parcels were
conveyed to another party. Levisa Coal later acquired an
interest in these estates through an oil, gas and coalbed
methane lease.
In 1956, Levisa Coal entered into a lease with Island Creek
Coal Company (Island Creek Coal) granting that company “the sole
and exclusive right and privilege of mining and removing all of
the coal from all the seams underlying the Tiller [V]ein or seam
of coal or the horizon of such seam” in and upon the Buchanan
County parcels conveyed by the 1937 deed. 2 The 1956 lease
1
Because, for purposes of this appeal, there is no
significant distinction between these two entities, we will
refer to the owner of the solid mineral estate as “Levisa Coal”
without distinction as to whether the reference is to the
current owner or its predecessor in interest.
2
The “Tiller Vein” refers to a particular deep-lying coal
seam that has been identified by that name in geological surveys
of western Virginia for at least the last ninety years. See,
2
further provided Island Creek Coal with the right “generally, to
make any use of the leased premises which [Island Creek Coal]
may deem needful or convenient in carrying on its mining or
other operations.” Among the specific uses permitted was the
right to “dump water or refuse on said premises.” These rights,
however, were “limited to such rights as [Levisa Coal] owns and
has the right to lease,” and the lease did not expressly purport
to convey any right to use the leasehold for the support of
mining operations on other lands.
Under the 1956 lease, Levisa Coal retained certain rights
to the ownership and continued use of its solid mineral estate
below the Tiller Vein and to easements serving Island Creek
Coal’s leasehold. As relevant to this appeal, Levisa Coal
retained “[t]he entire ownership and control of all the leased
premises, and the coal . . . and other minerals and products
therein and thereon, for all purposes (except those hereinbefore
expressly set forth as leased to [Island Creek Coal]).”
Additional express rights reserved to Levisa Coal included “the
right and privilege of draining water . . . over, across, or
through the leased premises,” as well as “the right and
privilege of searching for oil, gas, or any other minerals or
products and removing same when and wherever found.” In
e.g., H. Hinds, The Geology and Coal Resources of Buchanan
3
furtherance of these rights, the lease provided that Levisa Coal
could make excavations and bore “slopes, shafts, drifts,
tunnels, and wells” so long as these operations did not
interfere with Island Creek Coal’s right under the 1956 lease to
remove coal from below the Tiller Vein. Levisa Coal also
retained a right of inspection within Island Creek Coal’s works
and mines to assure compliance with an agreed upon mining plan
and calculation of royalties due under the lease and “to use
freely the means of access to the said works and mines without
hindrance or molestation” consistent with its rights under the
1937 deed.
The initial term of the 1956 lease was for five years with
the lease automatically renewing for successive terms of twenty
years so long as Island Creek Coal fulfilled its obligation to
mine coal on the property and pay royalties to Levisa Coal, or
in lieu thereof to make minimum payments to Levisa Coal for the
lost opportunity if coal was not being mined. At issue in this
appeal is a mine designated by Island Creek Coal as the “VP3
Mine,” which was opened on land subject to the 1956 lease in
1968. Although Island Creek Coal suspended its mining
operations at the VP3 Mine in 1998, Levisa Coal does not contend
that Island Creek Coal has failed to pay royalties or fulfill
County, Virginia, Bulletin XVIII (VA Geol. Survey 1918).
4
its other obligations under the lease and, thus, under its terms
the lease remains in force until at least 2021. Moreover,
Levisa Coal, through its managing general partner John C. Irvin,
conceded during the proceedings of this case that it is not
presently economically feasible to resume coal mining operations
at the VP3 Mine.
In 1993, CONSOL, Inc. (CONSOL), a subsidiary of CONSOL
Energy, Inc., acquired Island Creek Coal and all of its assets,
including the rights and obligations of the 1956 lease. CONSOL
has maintained Island Creek Coal as a separate corporate entity,
although Island Creek Coal no longer has any active mining
operations or employees and its corporate officers are also
officers or employees of CONSOL or its subsidiaries. CONSOL is
also the parent company of Consolidation Coal Company
(Consolidation Coal), the defendant-appellee herein.
Consolidation Coal maintains a coal mining operation, designated
as the “Buchanan Mine” or “Buchanan No. 1 Mine” in the vicinity
of Island Creek Coal’s VP3 Mine as well as other idled mines
once operated by Island Creek Coal.
Excess ground water naturally flowing into any deep mine as
a result of mining operations hampers extraction of coal. Mine
operators routinely remove such excess water or wastewater on a
daily basis. The removal of excess water in the Buchanan Mine,
as well as the excess water in the VP3 Mine, was initially
5
accomplished by pumping that water directly into the nearby
Levisa River or one of its tributaries. At some point after the
acquisition of Island Creek Coal by CONSOL, it became necessary
for Consolidation Coal to devise an alternate drainage system
for the removal of excess water naturally flowing into its
Buchanan Mine and the additional water released into that mine
as a result of its continuing mining operations there. In
general terms, the drainage system devised by Consolidation Coal
involved pumping the excess water from the Buchanan Mine into a
series of nearby idled mines once operated by Island Creek Coal
which functioned as storage pits for the water until the water
could be pumped into the Levisa River. Ultimately, this
drainage system was designed to include the idled VP3 Mine. The
rate of discharge of the wastewater into the river was to be
limited from time to time so that the Levisa River could
accommodate the increased water flow resulting from this
discharge.
Ultimately, the chloride content of the anticipated
discharged water into the Levisa River became an issue to be
resolved in order for Consolidation Coal to comply with certain
water standards established by the State Water Control Board and
to obtain the necessary permits to allow it to continue to pump
mine water into the Levisa River. Consolidation Coal applied to
the Virginia Department of Mines, Minerals, and Energy (DMME)
6
for permits to discharge wastewater from the Buchanan Mine into
idled mines under Island Creek Coal’s control, including the VP3
Mine, and ultimately into the Levisa River in accord with its
designed drainage system. 3 Subsequently, Consolidation Coal
began discharging wastewater into the “Beatrice” and “VP1” mines
and, when these mines could not accommodate additional water,
the discharge was diverted to the VP3 Mine. The present rate of
wastewater discharge from the Buchanan Mine into the VP3 Mine is
nearly 2,500 gallons per minute. The VP3 Mine has a capacity to
hold approximately 6.4 billion gallons of wastewater.
On July 10, 2006, Levisa Coal filed a complaint for
injunctive relief and declaratory judgment against Consolidation
Coal in the Circuit Court of Buchanan County seeking to prohibit
Consolidation Coal from continuing to divert wastewater from the
Buchanan Mine to the VP3 Mine. In seeking temporary and
permanent injunctive relief, Levisa Coal maintained that “[t]he
proposed pumping and storage of Buchanan Mine water in Levisa
[Coal]’s properties will cause irreparable harm to Levisa
[Coal]’s property and business interests.” Specifically, Levisa
Coal maintained that storing water in the VP3 Mine would result
3
According to statements in the record, Levisa Coal, by
separate litigation, challenged the issuing of a permit by DMME
to allow discharge of water into the VP3 Mine. The record does
not disclose the current status or result of that litigation.
7
in absorption of coal bed methane gas and, with regard to the
remaining coal in the property, would “vastly increase the costs
that will be required in order to safely access and mine the
coal in the future, effectively making it unminable.” Levisa
Coal further maintained that it had no adequate remedy at law to
redress these alleged injuries.
Levisa Coal premised its action for declaratory judgment on
the assertion that Consolidation Coal “lacks the legal right to
pump and store its Buchanan Mine water in the [VP3 Mine].” It
sought a declaration that Consolidation Coal “has no right to
utilize Levisa [Coal]’s subject properties for temporary or
permanent storage of Buchanan Mine water, and for judgment
adjudicating all other issues expressly or inferentially
raised.”
On August 4, 2006, Consolidation Coal filed an omnibus
response to the complaint, supported by an accompanying
memorandum of law, asserting a demurrer, special plea in bar,
answer and affirmative defenses. As relevant to this appeal,
Consolidation Coal maintained that it had a legal right to
discharge wastewater into the VP3 Mine because Island Creek
Coal, consistent with its purported rights under the 1956 lease,
had agreed to permit Consolidation Coal to discharge the water
into the VP3 mine. Consolidation Coal further maintained that
Levisa Coal was not entitled to seek an injunction as it was not
8
suffering any harm from the discharge of water into Island Creek
Coal’s leasehold, or, in the alternative, even if Levisa Coal
were being injured by that action, it had an adequate remedy at
law in the form of seeking monetary damages now or in the
future.
The parties engaged in a lengthy period of discovery before
Levisa Coal sought a hearing to request entry of a preliminary
injunction. The circuit court conducted an ore tenus hearing on
the request for a preliminary injunction on November 15 and 16,
2006. At that hearing, Levisa Coal took the position that,
despite any agreement between Consolidation Coal and Island
Creek Coal by which Island Creek Coal would purportedly accept
responsibility for the dumping of water into the VP3 Mine, “it
is Consolidation Coal Company that is doing it.” Levisa Coal
maintained that the 1956 Lease provided Island Creek Coal with
the right to mine coal, but provided no right for Island Creek
Coal to permit Consolidation Coal to put water into the mine.
In response, Consolidation Coal took the position that it
was Island Creek Coal, not Consolidation Coal, that was actually
putting water into the VP3 Mine and that Island Creek Coal was
doing so in a manner consistent with its rights under the 1956
lease. Consolidation Coal noted that even prior to the
acquisition of Island Creek Coal by CONSOL, the two companies
had cooperated in their respective mining efforts in the region.
9
Consolidation Coal maintained that both companies had benefited
from, and continued to benefit from, arrangements whereby mining
operations on the lands and leaseholds of one were supported by
activities on the lands and leaseholds of the other. In this
context, Consolidation Coal asserted that Island Creek Coal’s
storage of the Buchanan Mine water in the VP3 Mine was a “use of
the leased premises which [Island Creek Coal] may deem needful
or convenient in carrying on its mining or other operations” as
contemplated by the 1956 lease.
Consolidation Coal further contended that even if it, and
not Island Creek Coal, were deemed to be the party responsible
for the inundation of the VP3 Mine, it was doing so only within
the voids, tunnels and shafts created in Island Creek Coal’s
leasehold below the Tiller Vein and, thus, in an area over which
Levisa Coal had no current possessory interest. Thus,
Consolidation Coal contended that Levisa Coal did not have
standing to seek any relief against Consolidation Coal.
Moreover, assuming that Levisa Coal had such standing, to the
extent that it might suffer some damage to its interest in the
gaseous mineral estate, which Consolidation Coal did not
concede, Consolidation Coal maintained that such damage was a
quantifiable harm for which Levisa Coal could seek a monetary
award at law. As to any other damages Levisa Coal might suffer
as a result of impairment of its retained rights under the 1956
10
lease, Consolidation Coal maintained that these damages were
“speculative” because the VP3 Mine was currently idle and there
was no prospect of it being reopened for coal production or any
other purpose. Thus, Consolidation Coal maintained that Levisa
Coal could not establish irreparable harm for which injunctive
relief should be granted.
Levisa Coal introduced evidence through testimony from
Irvin, from Gerald Ramsey, a former employee of Island Creek
Coal now employed by CONSOL Energy, from Andrew Cecil, a mining
engineer, and from Charles Earl Ellis, a former employee of
Island Creek Coal now working as an independent consultant who
was qualified as an expert on business operations in the mining
industry. We need not recount the substance of this testimony
in detail, it being sufficient to say that Irvin, Ramsey and
Ellis confirmed the history of the VP3 Mine and the relationship
between Island Creek Coal and Consolidation Coal as related
above. Additionally, Irvin testified concerning Levisa Coal’s
interest in the production of coal bed methane gas on the
Buchanan County parcels.
Cecil’s testimony provided support for Levisa Coal’s
contention that inundation of the voids, tunnels and shafts in
the VP3 Mine would significantly impair the coal reserves of
Levisa Coal in that portion of its estate and the adjoining
strata. Cecil opined, for example, that water in the VP3 Mine
11
would be absorbed into the sandstone and shale layers above and
below the coal seam, creating “issues” for the stability of the
roof and floor of the mine, affecting the use of the mine
tunnels and shafts for future access to the coal reserves in the
strata below the Tiller Vein as well as increasing the cost of
mining those reserves.
Levisa Coal also sought to introduce evidence of the
potential damage to the gaseous mineral estate of the Buchanan
County parcels in the form of an affidavit prepared by Timothy
L. Hower. Levisa Coal contended that Hower was unavailable to
testify in person because he was outside the United States on
other business. Levisa Coal averred that it had attempted to
make Hower available for cross-examination by deposition or by
having the hearing conducted on a date when he would have been
available, but contended that Consolidation Coal had “refused”
to take Hower’s deposition and implied that other difficulties
with the discovery process had delayed the hearing until Hower
was unavailable. Consolidation Coal responded that its
objection was not merely that Hower was unavailable for cross-
examination, but because the substance of his opinion as
outlined in the affidavit was “speculative.” The circuit court
indicated that it would not “rul[e] on the substance of the
affidavit,” but that it would nonetheless exclude it from
evidence because “it is patently unfair to allow this witness to
12
testify by affidavit without giving defendant’s counsel the
opportunity to cross examine.”
Following the circuit court’s ruling excluding Hower’s
affidavit, Levisa Coal rested its case in chief. Consolidation
Coal then moved to strike Levisa Coal’s evidence, contending
that Levisa Coal had failed to establish that it would suffer
any irreparable harm if the temporary injunction were not
granted. This was so, Consolidation Coal maintained, both
because the injury from the alleged trespass was merely
speculative and, if actual, could be redressed by monetary
damages awarded at law.
In addressing the motion to strike Levisa Coal’s evidence,
the circuit court stated that in its view the principal claim
made by Levisa Coal with respect to the harm it would suffer
from the inundation of the VP3 Mine was to “its coal and gas
estate, although it is contested that it has a gas estate . . .
there is some evidence here where the Court may conclude as
much.” The court concluded, however, that any damages to Levisa
Coal’s interests were quantifiable and, thus, it “has an
adequate remedy at law if it in any way lost its coal estate,
. . . gas or coal bed methane estate.” The court further
concluded that granting the preliminary injunction could result
in “astronomical” harm to Consolidation Coal in that it possibly
would be required to suspend operations at the Buchanan Mine.
13
Accordingly, the court ruled that Levisa Coal had not met its
evidentiary burden for obtaining a preliminary injunction.
The circuit court then ruled that the provision in the 1956
lease that granted to Island Creek Coal “use of the leased
premises which lessee may deem needful or convenient in carrying
out its mining operations or other operations” was “about as
broad and expansive as we might imagine.” Applying that
interpretation of the lease, the court ruled that with respect
to the declaratory judgment Consolidation Coal “has the right to
place any kind of storage water in the [VP3] [M]ine.”
Accordingly, the court indicated that it did not need to hear
evidence from Consolidation Coal’s witnesses and directed
counsel for Consolidation Coal to draft an order reflecting the
court’s rulings.
On December 13, 2006, counsel for Consolidation Coal
submitted a draft order adopting by reference the circuit
court’s summation at the conclusion of the hearing and, in
addressing the court’s ruling on the declaratory judgment issue,
reflecting that Levisa Coal had “requested in this hearing that
the Court construe the November 16, 1956 Lease, and the rights
imparted therein.” On December 20, 2006, counsel for Levisa
Coal submitted a lengthy set of written objections to the
court’s anticipated rulings as reflected in the court’s
summation and the draft order.
14
On December 22, 2006, the circuit court entered a separate
order, which simplified the language of the draft order
submitted by Consolidation Coal, but in substance reflected the
court’s rulings on Levisa Coal’s requests for a preliminary
injunction and declaratory relief. On the latter issue, the
court expressly ruled that Consolidation Coal “has the right to
store excess water from the Buchanan No. 1 [Mine] in the VP3
Mine.” Although the draft order had not done so, the court’s
order further provided that it was a final order “resolving all
issues between the parties.” Pursuant to Rule 1:13, the order
was entered without endorsement of counsel “with the
understanding that all objections the Parties have stated in the
record are hereby preserved” including Levisa Coal’s written
objections submitted on December 20, 2006. We awarded Levisa
Coal this appeal.
DISCUSSION
Levisa Coal has asserted 12 assignments of error to a
number of aspects of the circuit court’s conduct of the hearing
held in this case and its final judgment. However, given the
procedural posture of this case, we are of opinion that we need
not address all of these assignments of error. As we have
previously noted, the hearing was noticed on Levisa Coal’s
request for a temporary injunction. The circuit court ruled on
the merits of the request for a declaratory judgment and denied
15
injunctive relief after sustaining Consolidation Coal’s motion
to strike the evidence at the conclusion of Levisa Coal’s
evidence in chief. Accordingly, the resolution of Levisa Coal’s
appeal rests principally upon two issues. 4 First, we will
consider whether the circuit court correctly construed the 1956
lease as providing Island Creek Coal, and, by extension,
Consolidation Coal through Island Creek Coal’s permission, with
4
While the petition for appeal in this case was under
review, Consolidation Coal filed a motion to dismiss the
petition for appeal and a renewed motion to dismiss. In those
motions, Consolidation Coal contends that because the ruling on
the declaratory judgment had been made at Levisa Coal’s request,
as recited in the circuit court’s order, and Levisa Coal had not
then sought a reconsideration of that ruling, it is barred from
seeking review of that ruling on appeal. At oral argument of
this appeal, counsel for Consolidation Coal again asserted that
by requesting the inclusion of the court’s ruling in the order,
Levisa Coal is barred from pursing an appeal on this point. We
disagree.
It is entirely proper for a party to request that a court
memorialize in an order a ruling made from the bench, even when
that ruling is contrary to the party’s interest. Levisa Coal
noted its objection to the court’s interpretation of the 1956
lease as permitting the storage of water from any source within
the VP3 Mine in the written objections submitted to the court
prior to the entry of the final order, and those objections were
expressly preserved by reference in that order. Thus, it was
not necessary for Levisa Coal to renew its objection by a motion
for reconsideration or any other means after entry of the final
order. See, e.g., Chawla v. BurgerBusters, Inc., 255 Va. 616,
621-23, 499 S.E.2d 829, 832-33 (1998)(error preserved by
plaintiff’s written motion and supporting oral argument when
objection noted on circuit court's final order). Accordingly,
to the extent we have not already disposed of the matter by
granting the petition for appeal, Consolidation Coal’s motion to
dismiss and renewed motion to dismiss are denied. Similarly, we
find no merit to Consolidation Coal’s contention made on brief
16
“the right to store excess water from the Buchanan No. 1 [Mine]
in the VP3 Mine.” Second, if the 1956 lease does not provide
Island Creek Coal with the right to permit Consolidation Coal to
store excess water from the Buchanan Mine in the VP3 Mine, we
will consider whether the record supports the circuit court’s
denial of Levisa Coal’s request for injunctive relief.
Interpretation of the 1956 Lease
Like all leases, a mining lease is a contract and “when the
terms of a contract are clear and unambiguous, a court must give
them their plain meaning.” Pocahontas Mining L.L.C. v. Jewell
Ridge Coal Corp., 263 Va. 169, 173, 556 S.E.2d 769, 771 (2002).
On appeal, we review a trial court’s interpretation of a lease
under a de novo standard. See Eure v. Norfolk Shipbuilding &
Drydock Corp., 263 Va. 624, 631, 561 S.E.2d 663, 667 (2002) (“on
appeal we are not bound by the trial court’s interpretation of
the contract provision at issue; rather, we have an equal
opportunity to consider the words of the contract within the
four corners of the instrument itself”); Wilson v. Holyfield,
227 Va. 184, 187-88, 313 S.E.2d 396, 398 (1984).
Levisa Coal contends that the circuit court misinterpreted
the language of the lease allowing “any use of the leased
premises which [Island Creek Coal] may deem needful or
of this appeal that Levisa Coal’s written objections did not
17
convenient in carrying on its mining or other operations” as
permitting the support of mining operations on other lands.
Levisa Coal initially notes that, under Clayborn v. Camilla Red
Ash Coal Co., 128 Va. 383, 105 S.E. 117 (1920), the 1937 deed
conveying to it the solid mineral estate of the Buchanan County
parcels permitted only a “necessary incidental easement” for
purposes of removing the coal and other minerals. Id. at 390,
105 S.E. at 119. Thus, Levisa Coal maintains that it did not
obtain the right under the 1937 deed to support mining
operations on other lands by permitting the inundation of the
subsurface area with wastewater. Accordingly, Island Creek Coal
could not have obtained the right to do so within its leasehold
because the 1956 lease expressly limited the easements Levisa
Coal granted to Island Creek Coal “to such rights as [Levisa
Coal] owns and has the right to lease.” We agree with Levisa
Coal.
In Clayborn, we were required to determine, as a matter of
first impression in Virginia, whether a trespass had occurred
against the rights of the owner of the surface estate 5 where the
satisfy the contemporaneous objection requirement of Rule 5:25.
5
“Surface estate” is a term intended generally to refer to
the rights of the owner of that portion of the original tract of
land that has not been severed by deeds granting rights in the
mineral estate or other resources of the tract of land. As
Clayborn made clear, the rights of the surface owner are not
limited to control of the surface area, but, depending on what
18
owner of the severed coal estate was transporting coal from
adjacent mining operations on other lands through the tunnels
and shafts beneath the surface estate. We recognized that under
“[t]he prevailing if not wholly unbroken current of authority
. . . a grantee of coal in place is the owner, not of an
incorporeal right to mine and remove, but of a corporeal
freehold estate in the coal, including the shell or containing
chamber, and that as such owner he has the absolute right, until
all of the coal has been exhausted, to use the passages opened
for its removal for any and all purposes whatsoever, including
in particular the transportation of coal from adjacent lands, so
long as he operates and uses the passages with due regard to the
rights of the surface owner.” 128 Va. at 388, 105 S.E. at 118.
After extensively reviewing the law from other
jurisdictions, we held that a deed or lease transferring a coal
estate or portion thereof is “the grant of an estate
determinable [and w]hen the coal is all removed the estate ends
for the plain reason that the subject of it has been carried
away.” Id. at 393, 105 S.E. at 120. Thus, “[t]he space [the
coal] occupied reverts to the grantor by operation of law.” Id.
Accordingly, we concluded that the right to use the tunnels and
rights are retained, may extend into the subsurface area.
Clayborn, 128 Va. at 388, 105 S.E. at 118.
19
shafts extended only to the mining operations within the
determinable estate, and not to the support of mining operations
on other lands. We further held that “[i]f the coal owner
expects more” than the right to mine and remove the coal within
his estate “he ought to stipulate for it” in the deed or lease.
Id. at 397, 105 S.E. at 122.
Although our decision in Clayborn was not consistent with
the majority view of other jurisdictions, see id. at 401-02, 105
S.E. at 123 (Prentis, J., dissenting), with respect to the issue
in this case that decision is in line with the long established
view in American law that “[t]he owner of a mine . . . may allow
the water therein to flow in natural channels and percolations
into an adjoining mine, but he may not, in absence of an
easement or license to do so, discharge [water] by means of
artificial drains into such adjoining mine.” Daniel M.
Barringer and John S. Adams, The Law of Mines and Mining in the
United States 631 (1900). This principle applies both to mines
at different levels within the same subsurface area of a single
tract of land as well as to mines on different tracts of land.
We can discern no practical distinction between supporting
adjoining mining operations by using tunnels and shafts to
transport coal, as in Clayborn, and the storing of wastewater
from such operations in the voids, tunnels and shafts of an
unrelated mine, as in this case. Accordingly, we are of opinion
20
that when the 1937 deed conveyed the solid mineral estate of the
Buchanan County parcels to Levisa Coal, the parties to that deed
contemplated only that the coal and other minerals would be
mined from that estate, and that the deed conveyed only an
incidental easement to use that portion of the parcels retained
by the surface owner as was necessary to support such mining
operations. Nothing in the deed conveyed any right to use the
voids, tunnels and shafts created below the surface for any
purpose other than to support the mining operations on those
parcels.
Since the 1937 deed conveyed no right to use any portion of
the mineral estate to support mining operations on other lands,
the 1956 lease could not have granted such right to Island Creek
Coal. Accordingly, even if we were to accept Consolidation
Coal’s argument that there was an incidental benefit to Island
Creek Coal’s long-term operational plan for mining the Buchanan
County parcels by permitting wastewater from the Buchanan Mine
to be stored in the VP3 Mine, Island Creek Coal simply lacks the
authority to permit Consolidation Coal to store wastewater from
other mining operations in the VP3 Mine. Clearly, Island Creek
Coal did not stipulate for such a use of the leasehold in the
1956 lease, nor could Levisa Coal have granted such rights even
if they had been sought. Thus, we hold that the circuit court
21
erred in ruling that Consolidation Coal has a right to store
wastewater from the Buchanan Mine in the VP3 Mine.
Denial of Levisa Coal’s Request for Injunctive Relief
Because the circuit court premised its judgment to deny
Levisa Coal’s request for injunctive relief, at least in part,
on its erroneous determination that Consolidation Coal had the
right to store excess water from the Buchanan Mine in the VP3
Mine, we will reverse that judgment. Additionally, because the
circuit court rendered that judgment in the procedural posture
of the case which resulted in an insufficient record for this
Court on appeal to resolve the issue of Levisa Coal’s
entitlement to injunctive relief, we will also remand the case
for further consideration of that issue by the circuit court.
Upon appeal, Consolidation Coal has contended, as it did in
the circuit court, that Levisa Coal lacks standing to seek
injunctive relief in this case because the 1956 lease divested
it of a present possessory interest in the leasehold given to
Island Creek Coal. While the circuit court did not expressly
address this contention, implicitly the court rejected it by
reaching the merits of Levisa Coal’s requested relief. The
record sufficiently reflects that Levisa Coal’s rights and
interests are not limited to those of its retained ownership of
the coal reserves below the Tiller Vein that Island Creek Coal
presently has a right to mine. In addition, Levisa Coal
22
reserved the right to explore for and remove other minerals
under the 1956 lease, and the circuit court found that there was
sufficient evidence, even without Hower’s affidavit, that
inundation of the VP3 Mine with excess water from the Buchanan
Mine would potentially damage the coal bed methane and other gas
deposits associated with the VP3 Mine and adjoining strata in
which Levisa Coal owns an interest. Accordingly, there is no
merit to Consolidation Coal’s contention that Levisa Coal lacks
standing to seek injunctive relief in this case, and that
contention will not be an issue upon remand of this case to the
circuit court.
Levisa Coal’s standing to seek injunctive relief in the
present case, however, is not sufficient alone to establish an
entitlement to such relief. Under well established principles,
which will be applicable upon remand here, the granting of an
injunction is an extraordinary remedy and rests on sound
judicial discretion to be exercised upon consideration of the
nature and circumstances of a particular case. See, e.g.,
Fancher v. Fagella, 274 Va. 549, 556, 650 S.E.2d 519, 522
(2007), Seventeen, Inc. v. Pilot Life Ins. Co., 215 Va. 74, 78,
205 S.E.2d 648, 653 (1974); Akers v. Mathieson Alkali Works, 151
Va. 1, 8, 144 S.E. 492, 494 (1928).
We also note that because of the absence of any right of
Consolidation Coal to store excess water from its mine in the
23
VP3 Mine and the evidence in the record that it is currently
doing so, the issue before the circuit court will no longer
involve the consideration of temporary injunctive relief but,
rather, whether the circumstances warrant the issuance of a
permanent injunction. 6 In that regard, the circuit court may
have the benefit of additional evidence on the issue of the
damages that inundation of the VP3 Mine may cause to Levisa
Coal’s interests in the gaseous mineral estate associated with
the VP3 Mine and the adjoining strata. Similarly, Consolidation
Coal must be afforded the opportunity to present evidence to
support its contention that Levisa Coal has an adequate remedy
at law in the form of monetary damages resulting from the
inundation of the VP3 Mine with wastewater from Consolidation
Coal’s mine.
The principles that a court must apply in properly
exercising its discretion to grant or deny a permanent
injunction have been identified in prior decisions of this
Court. “Under traditional equitable principles, a chancellor
6
In the circuit court Consolidation Coal urged the
application of a four-factor approach for determining whether a
preliminary injunction should issue, similar to that adopted by
the United States Court of Appeals for the Fourth Circuit in
Blackwelder Furniture Co. v. Seilig Manufacturing Co., Inc., 550
F.2d 189, 195-96 (4th Cir. 1977), for issues arising under
F.R.Civ.P. 65. In the posture of this appeal it is not
necessary to address that issue, and we express no view upon the
matter.
24
may enjoin a continuing trespass.” Fancher, 274 Va. at 556, 650
S.E.2d at 522. See also Nishanian v. Sirohi, 243 Va. 337, 339,
414 S.E.2d 604, 606 (1992); Mobley v. Saponi Corporation, 215
Va. 643, 645, 212 S.E.2d 287, 289 (1975). However, even in a
case involving a continuing trespass the guiding principle which
remains constant is that the granting of an injunction is an
extraordinary remedy and rests on the sound judicial discretion
to be exercised upon consideration of the nature and
circumstances of a particular case. See, e.g., Fancher, 274 Va.
at 556, 650 S.E.2d at 522; Seventeen, Inc., 215 Va. at 78, 205
S.E.2d at 653; Akers, 151 Va. at 8, 144 S.E. at 494. Thus, in a
case of a continuing trespass, such as the present case, we have
stated that if “the loss entailed upon [the trespasser] would be
excessively out of proportion to the injury suffered by [the
owner], or a serious detriment to the public, a court of equity
might very properly . . . deny the injunction and leave the
parties to settle their differences in a court of law.”
Clayborn, 128 Va. at 399, 105 S.E. at 122.
We have also observed that unless a party is entitled to an
injunction pursuant to a statute, a party must establish the
“traditional prerequisites, i.e., irreparable harm and lack of
an adequate remedy at law” before a request for injunctive
relief will be sustained. Virginia Beach S.P.C.A., Inc. v.
South Hampton Rds. Veterinary Assoc., 229 Va. 349, 354, 329
25
S.E.2d 10, 13 (1985); see also Carbaugh v. Solem, 225 Va. 310,
315, 302 S.E.2d 33, 35 (1983). Clearly, if the plaintiff has no
adequate remedy at law, equity will not countenance a continuing
trespass merely because the trespasser, or even the public at
large, will be benefited by allowing the trespass to continue.
See Frank Shop, Inc. v. Crown Cent. Petroleum Corp., 264 Va. 1,
7, 564 S.E.2d 134, 137 (2002).
When an injunction is sought to enforce a contract right
concerning personal property, the plaintiff has a high burden of
showing that the failure to enjoin the alleged improper action
will result in irreparable harm for which the law will afford
him no adequate remedy. See, e.g., Griscom v. Childress, 183
Va. 42, 47, 31 S.E.2d 309, 312 (1944); Langford v. Taylor, 99
Va. 577, 580, 39 S.E. 223, 224 (1901). Unless the plaintiff can
demonstrate that the property it seeks to protect has some
personal value of sentiment or other intangible quality that
cannot be restored to him at law, Langford, 99 Va. at 580, 39
S.E. at 224, or that monetary damages would otherwise not make
him whole, the court will deny the injunction because the legal
remedy is sufficient. Moore v. Steelman, 80 Va. 331, 339-40
(1885). Accordingly, in such cases, the court will give due
weight to the adverse effect of the injunction being granted on
the defendant.
26
By contrast, when the injunction is sought to enforce a
real property right a continuing trespass may be enjoined “even
though each individual act of trespass is in itself trivial, or
the damage is trifling, nominal or insubstantial, and despite
the fact that no single trespass causes irreparable injury. The
injury is deemed irreparable and the owner protected in the
enjoyment of his property whether such be sentimental or
pecuniary.” Boerner v. McCallister, 197 Va. 169, 172, 89 S.E.2d
23, 25 (1955); accord Fancher, 274 Va. at 556, 650 S.E.2d at
522-23; Clayborn, 128 Va. at 398-99, 105 S.E. at 122.
Thus, in Clayborn we did not find that the alleged harm to
the defendant constituted “the exceptional grounds” needed to
require the owner of real property rights to forgo those rights
for a purely legal remedy. Id. at 399, 105 S.E. at 122. Even
though it was apparent from the record that the defendant could
have negotiated the right to use the property “upon reasonable
terms,” we held that the court could not impose such terms on
the parties and, thus, the injunction ought to have been
granted. Id. at 400, 105 S.E. at 123.
Similarly, in Blue Ridge Poultry & Egg Co. v. Clark, 211
Va. 139, 176 S.E.2d 323 (1970), we rejected the claim that an
injunction ought not to issue to protect a landowner from a
noxious intrusion of effluent onto his land from a neighboring
industrial farming operation. Despite the fact that the
27
chancellor had found that the damages to Clark’s property were
quantifiable in terms of lost rent, we nonetheless held that
“[t]he doctrine of ‘balancing of equities’ must be viewed in
light of our long-standing pronouncement that a private
landowner is to be protected for injuries he may sustain ‘even
though inflicted by forces which constitute factors in our
material development and growth.’ ” Id. at 144, 176 S.E.2d at
327 (quoting Townsend v. Norfolk Ry. & Light Co., 105 Va. 22,
49, 52 S.E. 970, 978 (1906)).
By contrast, in Akers we found that where the trespass had
essentially stopped by the time the case had come to trial,
granting an injunction “would be of little benefit to the
complainant and would cost the defendant $1,000,000.00.” Akers,
151 Va. at 8, 144 S.E. at 494. In such a case, the availability
of a remedy at law was clearly appropriate, and thus an
injunction was not appropriate. Id.; see also Mobley, 215 Va.
at 646, 212 S.E.2d at 290.
Upon remand the circuit court will be guided by these
principles after granting the parties the opportunity to present
evidence regarding them.
CONCLUSION
For these reasons, we will reverse the judgment of the
circuit court and remand the case for further proceedings
consistent with the views expressed in this opinion.
28
Reversed and remanded.
29