IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2018 Term
FILED
_______________
April 12, 2018
released at 3:00 p.m.
No. 17-0641 EDYTHE NASH GAISER, CLERK
_______________ SUPREME COURT OF APPEALS
OF WEST VIRGINIA
MCELROY COAL COMPANY,
Petitioner
v.
MICHAEL SCHOENE AND PATRICIA SCHOENE,
Respondents
____________________________________________________________
CERTIFIED QUESTIONS ANSWERED
____________________________________________________________
Submitted: January 16, 2018
Filed: April 12, 2018
Rodger L. Puz, Esq. James G. Bordas, Jr., Esq.
J.R. Hall, Esq. Jeremy M. McGraw, Esq.
Dickie McCamey & Chilcote, P.C. James B. Stoneking, Esq.
Pittsburgh, Pennsylvania Bordas & Bordas, PLLC
Counsel for Petitioner Wheeling, West Virginia
Counsel for Respondents
J. Thomas Lane, Esq.
Carrie J. Lilly, Esq.
Bowles Rice LLP
Charleston, West Virginia
Counsel for Amicus Curiae
The West Virginia Coal Association
JUSTICE LOUGHRY delivered the Opinion of the Court.
CHIEF JUSTICE WORKMAN concurs in part, dissents in part, and reserves the right to
file a separate opinion.
JUSTICE KETCHUM concurs in part, dissents in part, and reserves the right to file a
separate opinion.
JUSTICE WALKER concurs in part, dissents in part, and reserves the right to file a
separate opinion.
SYLLABUS BY THE COURT
1. “A landowner who conveys the coal underlying the surface of his
land has an absolute property right to subjacent 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.” Syl. Pt. 1, Winnings v. Wilpen Coal Co., 134
W.Va. 387, 59 S.E.2d 655 (1950).
2. “Under the West Virginia common law of property, the well
recognized and firmly established rule is that when a landowner has conveyed the
minerals underlying the surface of the land, he retains the right to the support of the
surface in its natural state, but the owner of land may release or waive his property right
of subjacent support by the use of language that clearly shows that he intends to do so[.]”
Syllabus, in part, Rose v. Oneida Coal Co., Inc., 180 W.Va. 182, 375 S.E.2d 814 (1988).
3. “Deeds are subject to the principles of interpretation and
construction that govern contracts generally.” Syl. Pt. 3, Faith United Methodist Church
v. Morgan, 231 W.Va. 423, 745 S.E.2d 461 (2013).
4. “A valid written instrument which expresses the intent of the parties
in plain and unambiguous language is not subject to judicial construction or interpretation
i
but will be applied and enforced according to such intent.” Syl. Pt. 1, Cotiga Dev. Co. v.
United Fuel Gas Co., 147 W.Va. 484, 128 S.E.2d 626 (1962).
5. “It is not the right or province of a court to alter, pervert or destroy
the clear meaning and intent of the parties as expressed in unambiguous language in their
written contract or to make a new or different contract for them.” Syl. Pt. 3, Cotiga Dev.
Co. v. United Fuel Gas Co., 147 W.Va. 484, 128 S.E.2d 626 (1962).
6. “Extrinsic evidence will not be admitted to explain or alter the terms
of a written contract which is clear and unambiguous.” Syl. Pt. 9, Paxton v. Benedum-
Trees Oil Co., 80 W.Va. 187, 94 S.E. 472 (1917).
7. “Where a deed conveys the surface of a tract of land, reserving the
coal and the right to mine and ship all of the coal, the surface is divested of its inherent
right of support from the coal.” Syl. Pt. 2, Simmers v. Star Coal & Coke Co., 113 W.Va.
309, 167 S.E. 737 (1933).
8. “Where a deed conveys the coal under a tract of land, together with
all the rights and privileges necessary and useful in the mining and removal of said coal,
including the right of mining the same with or without leaving any support for the
overlying strata, and without liability for any injury which may result to such overlying
strata or to the surface, or to water courses or roads or ways by reason of the mining and
ii
removal of said coal, the grantee is not liable for damages to the surface or to structures
upon the surface, which damages result from surface subsidence proximately resulting
from the mining and removal of such coal.” Syllabus, Stamp v. Windsor Power House
Coal Co., 154 W.Va. 578, 177 S.E.2d 146 (1970).
9. “The definitions of ‘surface mine,’ ‘surface mining,’ or ‘surface-
mining operations’ contained within the West Virginia Surface Coal Mining and
Reclamation Act, W.Va. Code § 22-3-1, et seq., include ‘surface impacts incident to an
underground coal mine,’ and areas ‘where such activities disturb the natural land
surface.’” Syl. Pt. 4, Antco, Inc. v. Dodge Fuel Corp., 209 W.Va. 644, 550 S.E.2d 622
(2001).
10. “Pursuant to the West Virginia Surface Coal Mining and
Reclamation Act, W.Va. Code, 22A-3-14 (1985) [now W.Va. Code, 22-3-14 (1994)], and
30 U.S.C. § 1266 (1977) of the federal Surface Mining Control and Reclamation Act and
their accompanying regulations, the operator of an underground mine is required to
correct any material damage resulting from subsidence caused to surface lands, to the
extent technologically and economically feasible by restoring the land to a condition
capable of maintaining the value and reasonable foreseeable uses which it was capable of
supporting before subsidence.” Syl. Pt. 4, Rose v. Oneida Coal Co., Inc., 195 W.Va. 726,
466 S.E.2d 794 (1995).
iii
11. “A regulation that is proposed by an agency and approved by the
Legislature is a ‘legislative rule’ as defined by the State Administrative Procedures Act,
W.Va. Code, 29A-1-2(d) [1982], and such a legislative rule has the force and effect of
law.” Syl. Pt. 5, Smith v. W.Va. Human Rights Comm’n, 216 W.Va. 2, 602 S.E.2d 445
(2004).
12. “The West Virginia Surface Coal Mining and Reclamation Act
allows for a private cause of action: ‘Any person or property who is injured through the
violation by any operator of any rule, order or permit issued pursuant to this article may
bring an action for damages, including reasonable attorney and expert witness fees, in
any court of competent jurisdiction. . . .’ W.Va. Code § 22-3-25(f) (1994).” Syl. Pt. 5,
Antco, Inc. v. Dodge Fuel Corp., 209 W.Va. 644, 550 S.E.2d 622 (2001).
13. A surface owner may commence a civil action against a coal
operator pursuant to West Virginia Code § 22-3-25(f) (1994) alleging that injury to the
surface owner’s person or property was caused through the coal operator’s violation of a
rule, order, or permit issued under the West Virginia Coal Mining and Reclamation Act
[West Virginia Code §§ 22-3-1 to 22-3-38]. If the surface owner proves a violation and
that the violation caused the alleged injury, the surface owner may recover monetary
damages including, but not limited to, damages for annoyance and inconvenience
resulting from the violation. In the event the surface owner is unable to prove that the
coal operator violated such rule, order, or permit, or proves the violation but fails to prove
iv
that the violation caused the alleged injury, then the surface owner’s remedies for
subsidence damage caused by a coal operator are those provided in the West Virginia
Code of State Rules §§ 38-2-16.2.c to 38-2-16.2.c.2.
14. “The primary object in construing a statute is to ascertain and give
effect to the intent of the Legislature.” Syl. Pt. 1, Smith v. State Workmen’s Comp.
Comm’r, 159 W.Va. 108, 219 S.E.2d 361 (1975).
15. “Where the language of a statute is clear and without ambiguity the
plain meaning is to be accepted without resorting to the rules of interpretation.” Syl. Pt. 2,
State v. Elder, 152 W.Va. 571, 165 S.E.2d 108 (1968).
16. “Undefined words and terms used in a legislative enactment will be
given their common, ordinary and accepted meaning.” Syl. Pt. 6, in part, State ex rel.
Cohen v. Manchin, 175 W.Va. 525, 336 S.E.2d 171 (1984).
17. “Statutes which are remedial in their very nature should be liberally
construed to effectuate their purpose.” Syl. Pt. 6, Vest v. Cobb, 138 W.Va. 660, 76 S.E.2d
885 (1953).
18. “The West Virginia Surface Coal Mining and Reclamation Act,
W.Va. Code § 22-3-1, et seq., is remedial legislation that has as one of its primary
v
purposes the protection of the public from the potentially destructive effects that mining
may have on our lands, forests and waters.” Syl. Pt. 3, Antco, Inc. v. Dodge Fuel Corp.,
209 W.Va. 644, 550 S.E.2d 622 (2001).
19. “Annoyance and inconvenience can be considered as elements of
proof in measuring damages for loss of use of real property.” Syl. Pt. 3, Jarrett v. Harper
& Son, Inc., 160 W.Va. 399, 235 S.E.2d 362 (1977), modified on other grounds by
Brooks v. City of Huntington, 234 W.Va. 607, 768 S.E.2d 97 (2014).
20. The West Virginia Code of State Rules §§ 38-2-16.2.c. to 38-2-
16.2.c.2, which were promulgated pursuant to the West Virginia Surface Coal Mining
and Reclamation Act [West Virginia Code §§ 22-3-1 to 22-3-38], provide that when a
coal operator causes subsidence damage to structures or facilities, the operator is required
to either correct the material damage caused to any structures or facilities by repairing the
damage or compensate the owner of such structures or facilities in the full amount of the
diminution in value resulting from the subsidence. The owner of the damaged structures
or facilities shall choose between the two remedies.
vi
LOUGHRY, Justice:
This matter is before the Court upon a July 18, 2017, order of the United
States Court of Appeals for the Fourth Circuit certifying the following four questions to
this Court:
(1) Under West Virginia law, does a deed provision
(1902) transferring the right to mine coal “without leaving
any support for the overlying strata and without liability for
any injury which may result to the surface from the breaking
of said strata,” prohibit a surface estate owner from pursuing
a common law claim for loss of support arising from
subsidence caused by the extraction of coal from below the
surface?
(2) Assuming the surface lands and residence of a
landowner have been materially damaged from subsidence,
does the West Virginia Surface Coal Mining and Reclamation
Act, W.Va. Code § 22-3-1 et seq., (the “Act”) authorize an
action against the coal mine operator for the damage so
arising; or, are landowners only permitted to seek injunctive
relief compelling compliance with the Act’s provisions?
Compare W.Va. Code § 22-3-25(a), with id. § 22-3-25(f)?
(3) (a) If the Act permits a suit for damages, what is the
proper measure of damages? Specifically, is a landowner
permitted to recover only the diminution in value to the
property arising from the subsidence, or can the property
owner alternatively recover damages in an amount equal to
the cost to repair the property?
(b) Additionally, if the Act permits a suit for damages,
can those damages include compensation for “annoyance,
inconvenience, aggravation and/or loss of use”?
(4) Lastly, the regulations issued under the Act provide
that when a coal mine operator causes subsidence damage to
the “structures or facilities,” the operator must either correct it
or “compensate the owner . . . in the full amount of the
dimunition in value” as a result of the mining. See W.Va.
1
Code R. § 38-2-16.2.c.2; see also id. § 38-2-16.2.c.1. The
regulations, however, do not designate which party gets to
make this election between remedies if the parties fail to
reach an agreement. Between the landowner and the coal
mine operator, who elects the appropriate remedy and what
standards govern that decision?
By order dated August 30, 2017, this Court accepted the certified questions
and docketed the matter for resolution. Upon review of the parties’ briefs, arguments, and
the appendix record, we answer the certified questions.1
I. Factual and Procedural Background
The respondents, Michael and Patricia Schoene, own the surface to
approximately fifty-five acres of land in Marshall County on which sits their residence.
The petitioner, McElroy Coal Company (“McElroy”), owns and/or leases the coal
beneath the surface. In a 1902 deed, the Schoenes’ predecessors-in-interest severed the
coal and conveyed it with the express waiver of the right to recover any common law
damages resulting from the loss of subjacent support. The waiver clause provides:
Together with all the rights and privileges necessary and
useful in the mining and removing of the said coal, including
the right of mining the same without leaving any support for
the overlying stratas [sic] and without liability for any injury
which may result to the surface from the breaking of said
strata[.]
1
This Court would like to acknowledge the participation of the West Virginia Coal
Association in filing an amicus curiae brief in this case in support of McElroy. We have
considered the arguments of the Coal Association in answering the certified questions.
2
In 2012, McElroy mined coal under the Schoenes’ property using the
longwall mining method. This activity caused subsidence to the Schoenes’ surface estate,
including damage to their residence. As a result, the Schoenes filed an action against
McElroy in the Circuit Court of Marshall County. McElroy removed the action to the
United States District Court for the Northern District of West Virginia under diversity
jurisdiction.
The Schoenes subsequently amended their complaint to add statutory
claims under, inter alia, the West Virginia Surface Coal Mining and Reclamation Act,
West Virginia Code §§ 22-3-1 to 22-3-38 (“the Coal Mining Act” or “the Act”). These
statutory claims alleged that the subsidence arising from McElroy’s mining activities
caused material damage to the Schoenes’ surface estate and residence, and that McElroy
had neither corrected nor paid for the damage. The Schoenes also sought to recover
damages for their inconvenience and emotional and mental anguish, stress, and anxiety.
McElroy moved for partial summary judgment, alleging that the waiver
clause in the 1902 deed precluded relief on the Schoenes’ common law claim and that the
the Act did not authorize all of the relief the Schoenes sought in their statutory claim. The
Schoenes conceded the waiver issue. Specifically, the Schoenes indicated in their
response to McElroy’s motion for summary judgment:
The [Schoenes] agree, after additional discovery, research and
consideration, that the matters for resolution in this case are
much more limited than those originally pled in their
3
Complaint and Amended Complaint. The [Schoenes] now
agree, and do not dispute, that there is a waiver of subjacent
support included within the title chain to their property. The
[Schoenes], therefore, acknowledge and agree that they
cannot pursue traditional common law property damage
claims related to the mining operations conducted under their
property. The [Schoenes] therefore agree that Count 1 of their
complaint would not be [a] viable claim for trial purposes in
this matter.
The federal district court disregarded the Schoenes’ concession and denied McElroy’s
motion for summary judgment on the Schoenes’ common law claim.
The case proceeded to trial during which both parties adduced evidence
regarding the cost to repair the damage to the Schoenes’ residence and land. The jury
awarded the Schoenes $547,000, which sum includes $350,000 for repair to their
residence, $172,000 for repair to the land, and $25,000 for the Schoenes’ annoyance,
inconvenience, aggravation, and/or loss of use. McElroy appealed that decision to the
United States Court of Appeals for the Fourth Circuit, which certified the questions set
forth above.
II. Standard of Review
We have consistently held that “[a] de novo standard is applied by this
Court in addressing the legal issues presented by a certified question from a federal
district or appellate court.” Syl. Pt. 1, Light v. Allstate Ins. Co., 203 W.Va. 27, 506 S.E.2d
64 (1998). With this standard to guide us, we proceed to consider the certified questions.
4
III. Discussion
A. Waiver of Subjacent Support
The first certified question is:
Under West Virginia law, does a deed provision
(1902) transferring the right to mine coal “without leaving
any support for the overlying strata and without liability for
any injury which may result to the surface from the breaking
of said strata” prohibit a surface estate owner from pursuing a
common law claim for loss of support arising from
subsidence caused by the extraction of coal from below the
surface?
Under our law, generally, an owner of the surface estate has a right to subjacent support.
This Court held in syllabus point one of Winnings v. Wilpen Coal Co., 134 W.Va. 387, 59
S.E.2d 655 (1950), as follows:
A landowner who conveys the coal underlying the
surface of his land has an absolute property right to subjacent
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.
We subsequently made clear, however, that the right to subjacent support can be waived.
Under the West Virginia common law of property, 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, but the owner of land may release or waive
his property right of subjacent support by the use of language
that clearly shows that he intends to do so[.]
Syllabus, in part, Rose v. Oneida Coal Co., Inc. (Rose I), 180 W.Va. 182, 375 S.E.2d 814
(1988).
5
We first address whether the subject waiver in the 1902 deed
unambiguously waives the surface owners’ right to subjacent support. McElroy posits
that the waiver clause is express and unambiguous; consequently, it should be applied
and not interpreted. The Schoenes, directly contrary to their position before the district
court, now assert that the deed is ambiguous. According to the Schoenes, the granting of
mining rights in the deed includes only those mining rights and privileges that are
“necessary and useful.” Because there is no definition of the terms “necessary and useful”
in the deed, the Schoenes say that the deed is ambiguous.
Our law provides that “[d]eeds are subject to the principles of interpretation
and construction that govern contracts generally.” Syl. Pt. 3, Faith United Methodist
Church v. Morgan, 231 W.Va. 423, 745 S.E.2d 461 (2013). Also, “[a] valid written
instrument which expresses the intent of the parties in plain and unambiguous language is
not subject to judicial construction or interpretation but will be applied and enforced
according to such intent.” Syl. Pt. 1, Cotiga Dev. Co. v. United Fuel Gas Co., 147 W.Va.
484, 128 S.E.2d 626 (1962). As a result, “[i]t is not the right or province of a court to
alter, pervert or destroy the clear meaning and intent of the parties as expressed in
unambiguous language in their written contract or to make a new or different contract for
them.” Id. at 484, 128 S.E.2d at 628, syl. pt. 3. Finally, “[e]xtrinsic evidence will not be
admitted to explain or alter the terms of a written contract which is clear and
unambiguous.” Syl. Pt. 9, Paxton v. Benedum-Trees Oil Co., 80 W.Va. 187, 94 S.E. 472
(1917).
6
Upon application of our law to the waiver clause, we conclude that the
clause expressly and unambiguously grants to the coal owner or lessee the right to mine
the coal underneath the Schoenes’ surface estate without leaving “any” surface support
and without common law liability for “any” injury caused to the surface as a result of the
mining. Although the Schoenes assert that the phrase “necessary and useful” is undefined
and therefore renders the deed language ambiguous, we disagree. Giving the words
“necessary” and “useful” their common and ordinary meaning,2 these words simply
recognize that a coal operator will use the most legally efficient manner available to
remove the coal. These words have no effect on the unambiguous waiver language in the
deed. Therefore, we conclude that the Schoenes’ predecessors-in-interest expressly
waived the right to any subjacent support in unambiguous language.
The next issue we address is the validity of the waiver of subjacent support.
In denying McElroy’s Motion for Summary Judgment, the federal district court cited
syllabus point three of Cogar v. Sommerville, 180 W.Va. 714, 379 S.E.2d 764 (1989), for
the rule that waivers of subjacent support are only valid insofar as the proposed activity
was within the contemplation of the original parties to the conveyance. The district court
reasoned that in order to be within the contemplation of the original parties to the 1902
deed, it must be shown that the mining method, in this case longwall mining, was
contemplated by the parties at the time of severance. The district court also described the
2
“Undefined words and terms used in a legislative enactment will be given their
common, ordinary and accepted meaning.” Syl. Pt. 6, in part, State ex rel. Cohen v.
Manchin, 175 W.Va. 525, 336 S.E.2d 171 (1984).
7
distinction between longwall mining and the method of mining utilized in 1902, known
as room and pillar mining, as follows:
With longwall mining, “extraction takes place across a long
‘face’ or ‘wall’ which is blocked out between two panel
entries which contain at least three parallel entries. . . . The
recent technological advances which developed powered self-
advancing roof support systems revolutionized longwall
mining. The new roof support devices have the strength to
hold the mine top secure keeping the face open and
preventing roof falls in the face zone. While the powered self-
advancing roof support is holding up the mine top above the
working area where the coal is being removed, the roof
immediately behind the support line is allowed to break and
cave.”
“Because of virtually complete extraction of coal with
overlying rock caving into the mining void, there is resulting
subsidence of overlying strata of the surface which, unlike
room and pillar mining, is relatively quick and more
predictable as to timing.”
On the other hand, “the room and pillar mining method
derives its name from the driving of openings into coal seams
to divide the coal into blocks; these blocks or ‘pillars’ are
solid coal left in situ to support the overlying strata.”
Schoene v. McElroy Coal Co., No. 5:13-CV-95, 2016 WL 397636, at *4-5 (N.D.W.Va.
Jan. 29, 2016) (quoting McGinley, Proceedings of the Eastern Mineral Law Foundation
Fifth Annual Institute, Ch. 5, p. 5-2 (1984) (citations and footnote omitted)). The district
court concluded that “the broad form waiver of subjacent support is not a valid waiver
against the subsidence damage caused by longwall mining. Longwall mining was
unknown in Marshall County and to the lessors at the time the instrument was executed.”
Id., at *5.
8
McElroy asserts that the waiver in the 1902 deed unambiguously and
expressly waives “any” subjacent support, which unequivocally demonstrates that the
parties to the severance deed contemplated the loss of all support and potential damage to
the surface estate from underground coal mining. According to McElroy, the proper
inquiry is not whether the parties to the severance deed contemplated the actual
underground mining method, but whether the parties to the 1902 deed contemplated the
loss of surface support and whether the grantor waived the common law right to support.
The Schoenes respond by essentially urging this Court to adopt the reasoning of the
district court in denying McElroy’s Motion for Summary Judgment: the waiver of
subjacent support in the 1902 deed is invalid because the longwall method of mining the
coal could not have been contemplated in 1902 by the parties to the 1902 severance deed.
In their arguments to this Court, McElroy and the Schoenes cite to two
different lines of cases to support their respective positions regarding the validity of the
waiver. The line of cases supporting McElroy’s position details this Court’s
acknowledgment that when parties to a coal severance deed expressly waive the right to
support and liability, that agreement will be enforced. The Court’s reasoning in this line
of cases expressly addresses the “contemplation of the parties” argument advanced by the
Schoenes, as follows:
[I]n all sales of minerals the question of injury to the lands
not conveyed is of so much importance that courts should not
assume that it was not considered and made part of the
consideration of the deed. . . . [I]t is a matter of common
information, known to all who have paid any attention to
9
mining that in coal mines the coal will have to remain in
place as a support, or the surface be permitted to subside. . . .
So it is a question of leaving something like one-half the coal
in the mine or removing all and permitting the overlying
surface to adjust itself to a new bed. And this, I again repeat,
should be left for the parties to determine by their contract. If
the owner of the coal wishes to keep half of it as a support for
the surface he has a perfect right to do so, and if he wishes to
sell all, and permit all to be removed he may also do that.
When he has made his contract in accordance with his own
will and reduced it to writing the courts may declare the legal
effect of the writing but cannot change it.
Griffin v. Fairmont Coal Co., 59 W.Va. 480, 491-92, 53 S.E. 24, 29 (1905). This
statement clearly reflects the general awareness in 1905 that conveyance of all coal may
well cause subsidence. The idea that some mining methods at that time were more likely
than others to cause removal of all surface support is not indicated in Griffin. Rather, the
Court specifically addresses the fact that the owner of the coal has the right to sell all of
the coal and permit all of the coal to be removed. Therefore, Griffin stands for the
proposition that the parties to a severance deed may elect to allow all of the coal to be
removed, which may leave no support for the surface estate. Once the parties contemplate
this fact, it simply is not relevant by what underground coal mining method the removal
of all the coal is achieved.
In 1933, this contemplation, i.e., the possibility of the removal of all coal
and of the resulting subsidence, was reiterated by this Court:
It is common knowledge in the coal fields that the
removal of all of a seam of coal, even though several hundred
feet below the surface (as in this instance), is likely to cause
some surface disturbance. . . . It is not conceivable that one
10
who was purchasing or reserving surface would deliberately
covenant that all the coal should be removed, if he were
expecting the surface to be undisturbed. It is just as
unreasonable that one buying or reserving coal would pay for
or purport to reserve all the coal, and go through the farce of
writing into the deed the right to remove all the coal, if he
were contracting to leave the surface inviolate. Both grantor
and grantee would well know that all the coal could not be
removed if the surface were to be kept intact. A grantor
cannot specifically sell a right and then recover damages of
his grantee for using the very right sold; nor can a grantee
recover damages of his grantor for employing a right when
the grantee has agreed to the unrestricted reservation of the
right. So, where the entire body of the coal and the express
right to remove all of it has been purchased (as in the Griffin
Case) or reserved (as in the instant case), there is no
justification for mulcting the coal operator in damages for
injuries arising from the exercise of that right.
The right “to mine” of itself comprehends excavation and
removal. The only effect of adding the word “remove” is to
emphasize the right of removal. . . . Therefore we must follow
the Griffin decision, not only because it is logical, but also
because it has become a rule of property in this state
Simmers v. Star Coal & Coke Co., 113 W.Va. 309, 312-13, 167 S.E. 737, 738 (1933)
(emphasis in original) (citations omitted). In syllabus point two of Simmers, this Court
held that “[w]here a deed conveys the surface of a tract of land, reserving the coal and the
right to mine and ship all of the coal, the surface is divested of its inherent right of
support from the coal.” Id. at 309, 167 S.E. at 737 (citing syllabus point three of Griffin).
Simmers demonstrates the fallacy of the Schoenes’ position that because longwall mining
was utilized in this case, its removal of the surface support was not within the
contemplation of the parties. What was clearly within the contemplation of the parties,
even in the early 1900s, is that the right to mine and remove the coal would necessarily
11
result in subsidence. That is all that has occurred in this case—subsidence. The means
by which that occurred is irrelevant. In 1970, this Court again held that
[w]here a deed conveys the coal under a tract of land,
together with all the rights and privileges necessary and
useful in the mining and removal of said coal, including the
right of mining the same with or without leaving any support
for the overlying strata, and without liability for any injury
which may result to such overlying strata or to the surface, or
to water courses or roads or ways by reason of the mining and
removal of said coal, the grantee is not liable for damages to
the surface or to structures upon the surface, which damages
result from surface subsidence proximately resulting from the
mining and removal of such coal.
Syllabus, Stamp v. Windsor Power House Coal Co., 154 W.Va. 578, 177 S.E.2d 146
(1970). The clarity of these holdings likely led to the Schoenes’ concession that they had
no common law cause of action.
The line of cases relied on by the district court and the Schoenes simply is
not on point. See Cogar, 180 W.Va. 714, 379 S.E.2d 764; Brown v. Crozer Coal & Land
Co., 144 W.Va. 296, 107 S.E.2d 777 (1959); and W.Va.-Pittsburgh Coal Co. v. Strong,
129 W.Va. 832, 42 S.E.2d 46 (1947). As noted above, the federal district court relied on
the rule that waivers of subjacent support are only valid insofar as the proposed activity
was contemplated by the original parties to the conveyance. To support this
“contemplation of the parties” argument, the Schoenes rely on a single sentence in
Cogar: “Our conclusion is in accord with the general principle that a release or waiver of
liability or damages covers only those items that are within the ordinary contemplation of
the parties.” 180 W.Va. at 719, 379 S.E.2d at 769. In Cogar, the Court held that a waiver
12
of surface damages was insufficient to waive the right to enforce the Coal Mining Act’s
ban on mining within 300 feet of a dwelling. 180 W.Va. at 717, 379 S.E.2d at 769. The
reason for that is obvious—waiver of damages for injury to the surface has little or
nothing to do with a restriction on where mining can occur. This was a statutory
prohibition that was enacted well after the deed at issue in Cogar. At the time the parties
executed the deed, they clearly could not have contemplated a future ban on mining
within 300 feet of a dwelling. In contrast, at the time of the 1902 deed in the instant case,
the parties to the deed could and did contemplate the removal of all subjacent support.
Brown and Strong are likewise inapposite from the issue presented here. In
Brown, this Court held in syllabus point eight:
Deeds, one made in 1904 granting mineral rights in
“all minerals” with “all rights-of-way, of ingress and egress
over, across and through [said land] for the purpose of
removing the minerals &c. therefrom”; one made in 1905
granting “all the coal and other minerals and mineral
substances . . . together with the right to mine and remove
said minerals in the most approved method”; and one made in
1907 reserving “all minerals . . . together with all necessary
and useful rights for the proper mining, pumping, transporting
of said minerals” do not give owners of such mineral rights
the right to engage in improper mining such as would damage
the surface owned by others by augur mining, a method of
mining which at the time of the creation of the mineral rights
was not an usual method of mining known and accepted as
common practice in Wyoming County where the lands in
question are located.
144 W.Va. at 296-97, 107 S.E.2d at 779-80. The Court explained the auger mining
conducted in Brown as follows:
13
The purpose of using the augur method was to get the coal
out and it made no difference to the defendant that this
method would split the plaintiffs’ land in two sections, the
spoilage being over a mile in length and up to 400 feet wide
in places, that the timber on the land in connection with the
mining of the coal would be destroyed or diminished in value.
The right of ingress and egress and the building of roads
certainly was not anticipated at the time the deeds in question
were executed to any such extent as used in auger mining as
indicated on the land of the plaintiffs in this case.
144 W.Va. at 309-10, 107 S.E.2d at 786. The Court also indicated in the opinion that
“auger mining . . . results in extensive destruction of the surface.” 144 W.Va. at 304, 107
S.E.2d at 783.
At issue in Strong was language in a severance deed that granted to the coal
owners the following rights:
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.
129 W.Va. at 833, 42 S.E.2d at 48. The specific issue in Strong was whether the rights
granted in the deed included the right of strip mining. This Court concluded that the
language did not include the right to strip mine because at the time the deed was executed
14
in 1904, “the practice of strip mining was [not] known in this State to the extent that it
was necessarily within the implied contemplation of the parties to a private contract[.]”
Id. at 837, 42 S.E.2d at 49. The Court concluded that “it was not within the contemplation
of the parties that the owner of the coal by virtue of the mining rights granted should be
entitled to remove any part of the surface[.]” Id. at 838, 42 S.E.2d at 50 (emphasis in
original).
In sum, this Court does not find the cases relied upon by the district court
and the Schoenes to be applicable to the instant case. Those cases reject the notion of
implying a right to directly destroy the surface in a manner not contemplated by typical
mining methods. In contrast, the issue in this case is the express waiver of damages for
loss of surface support, which is a natural incident of any underground mining regardless
of the methodology.
The certified question before us is whether a 1902 deed provision
transferring the right to mine coal “without leaving any support for the overlying strata
and without liability for any injury which may result to the surface from the breaking of
said strata” prohibits a surface owner from pursuing a common law claim for loss of
support arising from subsidence caused by the extraction of the coal from below the
surface. We answer the question in the affirmative.
15
B. Remedy for Injury Under
The West Virginia Surface Coal Mining And Reclamation Act
Although the Schoenes are precluded from bringing a common law action
against McElroy for damages caused to their property by subsidence, our answer to the
first certified question does not resolve the issue whether the Schoenes may receive
compensation for their damages pursuant to the West Virginia Surface Coal Mining and
Reclamation Act, West Virginia Code §§ 22-3-1 to 22-3-38.3 This Court has succinctly
explained the Act as follows:
In 1977, Congress enacted the Surface Mining Control and
Reclamation Act to “establish a nationwide program to
protect society and the environment from the adverse effects
of surface mining operations[.]” 30 U.S.C. § 1202(a) [1977].
The federal Act encourages “cooperative federalism” by
allowing a State to adopt its own comparable program for the
regulation of mining. See 30 U.S.C. § 1253 [1977]. The
State’s “program need not be identical to the federal program,
as long as its provisions are at least as stringent as those
provided for in the federal act.” Canestraro v. Faeber, 179
W.Va. 793, 794, 374 S.E.2d 319, 320 (1988). West Virginia
adopted a comparable mining regulation program, the West
Virginia Surface Coal Mining and Reclamation Act, which
took effect in 1981. See 1980 Acts of the Legislature, ch. 87.
Huffman v. Goals Coal Co., 223 W.Va. 724, 726, 679 S.E.2d 323, 325 (2009). Although
the instant facts do not concern surface mining, but rather underground mining that
damaged the surface and buildings on the surface, the Coal Mining Act still applies. This
3
This Court held in the syllabus of Rose I, in part, that the West Virginia common
law of property “has been modified to some extent by the enactment of the West Virginia
Surface Coal Mining and Reclamation Act, W.Va. Code, 22A-3-1 [1985], et seq.” 180
W.Va. at 183, 375 S.E.2d at 815.
16
Court has held that “[t]he definitions of ‘surface mine,’ ‘surface mining,’ or ‘surface-
mining operations’ contained within the West Virginia Surface Coal Mining and
Reclamation Act, W.Va. Code §22-3-1, et seq. include ‘surface impacts incident to an
underground coal mine,’ and areas ‘where such activities disturb the natural land
surface.’” Syl. Pt. 4, Antco, Inc. v. Dodge Fuel Corp., 209 W.Va. 644, 550 S.E.2d 622
(2001).
We now turn to the second and third certified questions which we will
address together as the parties do in their briefs.
Assuming the surface lands and residence of a
landowner have been materially damaged from subsidence,
does the West Virginia Surface Coal Mining and Reclamation
Act, W.Va. Code § 22-3-1 et seq., (the “Act”) authorize an
action against the coal mine operator for the damage so
arising; or, are landowners only permitted to seek injunctive
relief compelling compliance with the Act’s provisions?
Compare W.Va. Code § 22-3-25(a), with id. § 22-3-25(f)?
(a) If the Act permits a suit for damages, what is the proper
measure of damages? Specifically, is a landowner permitted
to recover only the diminution in value to the property arising
from subsidence, or can the property owner alternatively
recover damages in an amount equal to the cost to repair the
property?
(b) Additionally, if the Act permits a suit for damages, can
those damages include compensation for “annoyance,
inconvenience, aggravation and/or loss of use?
17
It is McElroy’s position that the only claim authorized by the Act under the
facts of this case is for repair of land and, with regard to the residence, either repair or
compensation in the amount of diminution in value pursuant to the West Virginia Code of
State Rules §§ 38-2-16.2.c. to 38-2-16.2.c.2., which are rules promulgated pursuant to the
Act. McElroy acknowledges that West Virginia Code § 22-3-25(f) provides for a
statutory claim to recover damages where the surface owner can show a coal operator’s
violation of the Act. McElroy contends, however, that monetary damages are not
recoverable under this statute in the instant case because the Schoenes failed to show a
violation by McElroy of the Act that resulted in damage to the Schoenes. Instead, says
McElroy, the Schoenes’ injuries were caused by subsidence which is a natural
consequence of underground mining and not evidence of a violation of the Act. McElroy
further asserts that the lawsuit between the parties resulted from a disagreement regarding
the cost to repair the Schoenes’ land and residence and cannot possibly constitute a
violation of the Act. Rather, avers McElroy, the lawsuit could only result in an order to
compel McElroy to comply with the requirements of the West Virginia Code of State
Rules §§ 38-2-16.2.c. to 38-2-16.2.c.2. based on the jury’s findings of cost to repair and
diminution in value. Therefore, McElroy answers the second and third certified questions
as follows: the West Virginia Surface Coal Mining and Reclamation Act does not allow
monetary damages for the repair of a residence, the repair of land or damages for
annoyance inconvenience, aggravation, and/or loss of use of the surface owner’s
property.
18
The Schoenes argue that they had the authority to seek an award of
damages under West Virginia Code § 22-3-25(f). The Schoenes aver that McElroy
violated its duty under the West Virginia Code of State Rules § 38-2-16.2.c.2. to repair
the damage caused by its mining operations or, alternatively, to compensate for that
damage “by dragging its feet and obstructing the compensation process for nearly three
years.” The Schoenes assert that this conduct constitutes a violation of a rule promulgated
pursuant to the Act, therefore it falls within the scope of West Virginia Code § 22-3-
25(f). Regarding the proper measure of damages under West Virginia Code § 22-3-25(f),
the Schoenes contend that these damages should include compensation for damages to
residential property as provided for by this Court in Brooks v. City of Huntington, 234
W.Va. 607, 768 S.E.2d 97 (2014), which include the reasonable cost for repairing the
residence, even if the costs exceed the fair market value before the damage, and the
related expenses stemming from the injury, including damages for annoyance,
inconvenience, aggravation, and loss of use during the repair period.
The issue of whether the Schoenes successfully proved in the district court
that McElroy violated a rule, order, or permit under the Coal Mining Act is not before
this Court. Accordingly, we will answer certified questions two and three by addressing
the proper remedy when a person proves a violation of a rule, order, or permit under the
Act and when they fail to prove a violation. As discussed above, subsidence is a natural
consequence of underground coal mining, and is not necessarily evidence of a violation
of the Coal Mining Act. See Keystone Bituminous Coal Assoc. v. DeBenedictis, 480 U.S.
19
470, 474 (1987) (recognizing that “[c]oal subsidence is the lowering of strata overlying a
coal mine, including the land surface, caused by the extraction of underground coal.”).
Under the State’s Coal Mining Act, a coal operator is required to repair any material
damage to a surface owner’s property as the result of subsidence. Specifically, we held in
syllabus point four of Rose v. Oneida Coal Company (“Rose II”), 195 W.Va. 726, 466
S.E.2d 794 (1995):
Pursuant to the West Virginia Surface Coal Mining
and Reclamation Act, W.Va. Code, 22A-3-14 (1985) [now
W.Va. Code, 22-3-14 (1994)], and 30 U.S.C. § 1266 (1977)
of the federal Surface Mining Control and Reclamation Act
and their accompanying regulations, the operator of an
underground mine is required to correct any material damage
resulting from subsidence caused to surface lands, to the
extent technologically and economically feasible by restoring
the land to a condition capable of maintaining the value and
reasonably foreseeable uses which it was capable of
supporting before subsidence.
The “accompanying regulations” referred to in this syllabus point are found in the West
Virginia Code of State Rules §§ 38-2-16.2.c. to 38-2-16.2.c.2., which were promulgated
by the State Department of Environmental Protection pursuant to West Virginia Code §
22-3-14 (1994). These rules provide, in applicable part, as follows:
16.2.c. Material Damage. Material damage in the context of
this section and 3.12 of this rule means: any functional
impairment of surface lands, features, structures or facilities;
any physical change that has a significant adverse impact on
the affected land’s capability to support current or reasonably
foreseeable uses or causes significant loss in production or
income; or any significant change in the condition,
appearance or utility of any structure from its pre-subsidence
condition. The operator shall:
20
16.2.c.1. Correct any material damage resulting from
subsidence caused to surface lands, to the extent
technologically and economically feasible, by restoring the
land to a condition capable of maintaining the value and
reasonably foreseeable uses which it was capable of
supporting before subsidence;
16.2.c.2. Either correct material damage resulting from
subsidence caused to any structures or facilities by repairing
the damage or compensate the owner of such structures or
facilities in the full amount of the diminution in value
resulting from the subsidence. Repair of damage includes
rehabilitation, restoration, or replacement of damaged
structures or facilities. Compensation may be accomplished
by the purchase prior to mining of a non-cancelable premium-
prepaid insurance policy. The requirements of this paragraph
only apply to subsidence related damage caused by
underground mining activities conducted after October 24,
1992[.]4
(Footnote added).
The West Virginia Code of State Rules §§ 38-2-1 to 38-2-24.9.3 are
legislative rules.5 This Court has explained that “[a] regulation that is proposed by an
4
This Court quotes the provisions that became effective July 1, 2016. Even though
the events in this case occurred while the 2011 version of the rule was in effect, the
applicable language is the same in both versions of the rule.
5
The analogous federal rule is found at 30 C.F.R. § 817.121, which provides:
(c)(1) Repair of damage to surface lands. The permittee must
correct any material damage resulting from subsidence caused
to surface lands, to the extent technologically and
economically feasible, by restoring the land to a condition
capable of maintaining the value and reasonably foreseeable
uses that it was capable of supporting before subsidence
damage.
21
agency and approved by the Legislature is a ‘legislative rule’ as defined by the State
Administrative Procedures Act, W.Va. Code, 29A-1-2(d) [1982], and such a legislative
rule has the force and effect of law.” Syl. Pt. 5, Smith v. W.Va. Human Rights Comm’n,
216 W.Va. 2, 602 S.E.2d 445 (2004).
It is clear from these legislative rules and Rose II that a coal operator is
required to correct any material damage resulting from subsidence caused to surface
lands, to the extent technologically and economically feasible. See Rose II, 195 W.Va. at
727-28, 466 S.E.2d at 795-96, syl. pt. 4. The legislative rules also require the coal
operator to either correct material damage resulting from subsidence caused to any
structures or facilities by repairing the damage or compensate the owner of such
structures or facilities in the full amount of the diminution in value resulting from the
subsidence. We emphasize that the coal operator must perform these requirements even if
(2) Repair or compensation for damage to non-commercial
buildings and related structures. The permittee must promptly
repair, or compensate the owner for, material damage
resulting from subsidence caused to any non-commercial
building or occupied residential dwelling or structure related
thereto that existed at the time of mining. If repair option is
selected, the permittee must fully rehabilitate, restore or
replace the damaged structure. If compensation is selected,
the permittee must compensate the owner of the damaged
structure for the full amount of the decrease in value resulting
from the subsidence-related damage. The permittee may
provide compensation by the purchase, before mining, of a
non-cancelable premium-prepaid insurance policy. The
requirements of this paragraph apply only to subsidence-
related damage caused by underground mining activities
conducted after October 24, 1992.
22
there is no proven violation of a rule, order, or permit issued pursuant to the Coal Mining
Act. Therefore, we answer certified question two as follows: assuming the surface lands
and residence of a landowner have been materially damaged from subsidence that is a
natural result of underground mining, the surface owner is limited to the remedies
provided for in the West Virginia Code of State Rules §§ 38-2-16.2.c. to 38-2-16.2.c.2.
This brings us to the third certified question regarding damages recoverable
under this statute. In the event that a surface owner alleges that a coal operator violated a
rule, order, or permit issued pursuant to the Coal Mining Act, the Act permits an action
for damages in West Virginia Code § 22-3-25(f) (1994).6 In this regard, this Court has
held:
The West Virginia Surface Coal Mining and
Reclamation Act allows for a private cause of action: “Any
person or property who is injured through the violation by
any operator of any rule, order or permit issued pursuant to
this article may bring an action for damages, including
reasonable attorney and expert witness fees, in any court of
competent jurisdiction. . . .” W.Va. Code § 22-3-25(f) (1994).
Antco, Inc., 209 W.Va. at 646, 550 S.E.2d at 624, syl. pt. 5. In answering this certified
question, we are cognizant that “[t]he primary object in construing a statute is to ascertain
6
The analogous federal provision is found at 30 U.S.C. § 1270(f) (1977), which
provides in applicable part:
Any person who is injured in his person or property through
the violation by any operator of any rule, regulation, order, or
permit issued pursuant to this chapter may bring an action for
damages (including reasonable attorney and expert witness
fees) only in the judicial district in which the surface coal
mining operation complained of is located.
23
and give effect to the intent of the Legislature.” Syl. Pt. 1, Smith v. State Workmen’s
Comp. Comm’r, 159 W.Va. 108, 219 S.E.2d 361 (1975). Also, “[w]here the language of a
statute is clear and without ambiguity the plain meaning is to be accepted without
resorting to the rules of interpretation.” Syl. Pt. 2, State v. Elder, 152 W.Va. 571, 165
S.E.2d 108 (1968). Moreover, “[u]ndefined words and terms used in a legislative
enactment will be given their common, ordinary and accepted meaning.” Syl. Pt. 6, in
part, State ex rel. Cohen v. Manchin, 175 W.Va. 525, 336 S.E.2d 171 (1984). Also of
relevance here is our rule that “[s]tatutes which are remedial in their very nature should
be liberally construed to effectuate their purpose.” Syl. Pt. 6, Vest v. Cobb, 138 W.Va.
660, 76 S.E.2d 885 (1953). Finally, this Court has held that “[t]he West Virginia Surface
Coal Mining and Reclamation Act, W.Va. Code § 22-3-1, et seq., is remedial legislation
that has as one of its primary purposes the protection of the public from the potentially
destructive effects that mining may have on our lands, forests and waters.” Antco, 209
W.Va. at 646, 550 S.E.2d at 624, syl. pt. 3.
Application of these principles to West Virginia Code § 22-3-25(f) compels
us to find that the language of this statute is clear and without ambiguity so that we do not
have to resort to the rules of interpretation. Clearly, this statute permits an action for
damages when “any person or property . . . is injured through the violation by any
operator of any rule, order or permit issued pursuant to this article.” The code section
does not define the term “damages,” although it does specify that such damages may
include “reasonable attorney and expert witness fees.” Because the term “damages” is not
24
defined in the statute, this Court will give the term its common, ordinary and accepted
meaning. We find that the term “damages” as contained in the phrase “action for
damages” in West Virginia Code § 22-3-25(f) refers to monetary compensation for an
injury to a person or property. See Black’s Law Dictionary 471 (10th ed. 2014) (defining
“damages” as “[m]oney claimed by, or ordered to be paid to, a person as compensation
for loss or injury.”). Therefore, if a surface owner proves that his or her person or
property was injured through a coal operator’s violation of a rule, order, or permit, the
surface owner can receive monetary compensation for such injury pursuant to West
Virginia Code § 22-3-25(f).
The third certified question also asks whether a party may seek
compensation for annoyance, inconvenience, aggravation and/or loss of use. Again, we
give the term “damages” its common and ordinary meaning as set forth above. This Court
has held that “[a]nnoyance and inconvenience can be considered as elements of proof in
measuring damages for loss of use of real property.” Syl. Pt. 3, Jarrett v. Harper & Son,
Inc., 160 W.Va. 399, 235 S.E.2d 362 (1977), modified on other grounds by Brooks v. City
of Huntington, 234 W.Va. 607, 768 S.E.2d 97 (2014). Clearly, a surface owner whose
person or property is injured through a coal operator’s proven violation of the Coal
Mining Act may experience the loss of use of his or her property as a result thereof. In
such an instance, a surface owner may be compensated for annoyance and inconvenience
that is proven to have been caused by the loss of use of his or her property. In addition,
West Virginia Code § 22-3-25(f) specifically refers to injury to a “person,” which
25
certainly contemplates something beyond mere property repairs and would encompass
annoyance and inconvenience damages. Accordingly, this Court answers part (b) of the
third certified question as follows: In an action for damages for injury to the person or
property as a result of the coal operator’s violation of a rule, order, or permit under the
Act, those damages can include compensation for annoyance and inconvenience caused
by the loss of use of property resulting from a violation of the Act.
Therefore, based on our discussion above, we hold that a surface owner
may commence a civil action against a coal operator pursuant to West Virginia Code §
22-3-25(f) (1994), alleging that injury to the surface owner’s person or property was
caused through the coal operator’s violation of a rule, order, or permit issued under the
West Virginia Coal Mining and Reclamation Act [West Virginia Code §§ 22-3-1 to 22-3-
38]. If the surface owner proves a violation and that the violation caused the alleged
injury, the surface owner may recover monetary damages including, but not limited to,
damages for annoyance and inconvenience resulting from the violation. In the event the
surface owner is unable to prove that the coal operator violated such rule, order, or
permit, or proves the violation but fails to prove that the violation caused the alleged
injury, then the surface owner’s remedies for subsidence damage caused by a coal
operator are those provided in the West Virginia Code of State Rules §§ 38-2-16.2.c. to
38-2-16.2.c.2.
26
C. Election of Remedies
The final certified question provides:
(4) Lastly, the regulations issued under the Act
provide that when a coal mine operator causes subsidence
damage to the “structures or facilities,” the operator must
either correct it or “compensate the owner . . . in the full
amount of the diminution in value” as a result of the mining.
See W.Va. Code R. § 38-2-16.2.c.2; see also id. § 38-2-
16.2.c.1. The regulations, however, do not designate which
party gets to make this election between remedies if the
parties fail to reach an agreement. Between the landowner
and the coal mine operator, who elects the appropriate
remedy and what standards govern that decision?
McElroy contends that the coal operator may elect whether to correct the damage or
compensate the owner for the full amount of the diminution in value. McElroy cites the
West Virginia Code of State Rules §§ 38-2-16.2.c. and 16.2.c.2. which provide that “[t]he
operator shall . . . [e]ither correct material damage resulting from subsidence caused to
any structures or facilities . . . or compensate the owner of such structures or facilities in
the full amount[.]” According to McElroy, this language mirrors its federal counterpart
and that under our law, and to the extent needed, courts should look to federal agency
interpretations for guidance. McElroy contends that the federal Office of Surface Mining,
which first published the applicable regulations in 1979, and which provide the blueprint
for West Virginia’s program a year later, consistently has instructed that the selection of
the alternative remedies set forth in the analogous federal rule is to be given to the coal
operator. Therefore, McElroy urges this Court to follow that construction here.7
7
In its brief to this Court, McElroy goes to great lengths to discern the intent of
the federal Office of Surface Mining regarding whether the surface owner or the coal
27
The Schoenes respond that the plain language of the Coal Mining Act and
its rules never identify which party is entitled to elect between the available remedies of
compensation or repair. According to the Schoenes, this ambiguity should be resolved by
interpreting the Act broadly and liberally in favor of the Act’s stated goal of providing
surface protection for landowners when coal is mined from their property. Therefore, the
Schoenes maintain that they should decide the proper remedy under the West Virginia
Code of State Rules § 38-2-16.2.c.2.
We agree with the Schoenes. Despite McElroy’s argument to the contrary,
the rule is silent on the issue of whether the surface owner or the coal operator chooses
the remedy for the repair of a surface structure. Although the rule provides that “[t]he
operator shall” perform one of two actions, the rule does not indicate that the coal
operator is the party who chooses which action to perform. While “silence does not
equate to ambiguity[,]” “silence may render a statute ambiguous when the missing
subject reasonably is necessary to effectuate the provision as written.” State v. Ramos, 49
A.3d 197, 204 (Conn. 2012) (citations omitted). We find the rule at issue is ambiguous
operator elects the remedy under the analogous federal regulation. We note that the
analogous federal regulation also does not specify which party makes the election
between compensation and/or repairs of subsidence damage. Moreover, we have based
our decision on our State regulation. As discussed above, the federal surface mining
regulations are a set of minimum standards, not maximum standards. “The State’s
program need not be identical to the federal program, as long as its provisions are at least
as stringent as those provided for in the federal act.” Huffman, 223 W.Va. at 726, 679
S.E.2d at 325 (internal quotation marks and citation omitted).
28
because it cannot be effectuated until it is determined whether the surface owner or the
coal operator chooses the remedy for a damaged surface structure.
As set forth above, “[t]he primary object in construing a statute is to
ascertain and give effect to the intent of the Legislature.” Smith, 159 W.Va. at 108, 219
S.E.2d at 362, syl. pt. 1. The Legislature expressly set forth its intent in enacting the Coal
Mining Act as follows:
(1) Expand the established and effective statewide
program to protect the public and the environment from the
adverse effects of surface-mining operations;
(2) Assure that the rights of surface and mineral
owners and other persons with legal interest in the land or
appurtenances to land are adequately protected from such
operations;
(3) Assure that surface-mining operations are not
conducted where reclamation as required by this article is not
feasible;
(4) Assure that surface-mining operations are
conducted in a manner to adequately protect the environment;
(5) Assure that adequate procedures are undertaken to
reclaim surface areas as contemporaneously as possible with
the surface-mining operations;
(6) Assure that adequate procedures are provided for
public participation where appropriate under this article;
(7) Assure the exercise of the full reach of state
common law, statutory and constitutional powers for the
protection of the public interest through effective control of
surface-mining operations; and
(8) Assure that coal production essential to the nation’s
energy requirements and to the State’s economic and social
well-being is provided.
29
W.Va. Code § 22-3-2(b)(1)-(8) (1994).8 Significantly, seven of the eight purposes of the
Act, as articulated by the Legislature, are to protect the public, the environment, surface
owners, and owners of minerals other than coal from the adverse effects of coal mining.
As noted above, “[t]he West Virginia Surface Coal Mining and Reclamation Act, W.Va.
Code § 22-3-1, et seq., is remedial legislation that has as one of its primary purposes the
protection of the public from the potentially destructive effects that mining may have on
our lands, forests and waters.” Antco, Inc., 209 W.Va. at 646, 550 S.E.2d at 624, syl. pt.
3. Finally, we have long held that “[s]tatutes which are remedial in their very nature
should be liberally construed to effectuate their purpose.” Vest, 138 W.Va. at 661, 76
S.E.2d at 887, syl. pt. 6.
Upon application of our law to the construction of the West Virginia Code
of State Rules §§ 38-2-16.2.c. to 16.2.c.2., this Court answers the fourth certified
question by finding that the surface owner elects whether the coal operator will correct
material damage resulting from subsidence to any of the surface owner’s structures or
facilities by repairing the damage, or by compensating the owner of the structures or
facilities in the full amount of the diminution in value caused by the subsidence.9 We
believe that this conclusion is consistent with a liberal construction of the Coal Mining
Act and congruous with the purposes of the Act, including the protection of surface
8
This statute was amended effective June 9, 2016. However, we quote from the
version of the statute that was in effect at the time of the events in this case.
9
The State Department of Environmental Protection or the Legislature can
certainly amend the legislative rule to specify whether the coal operator or the surface
owner chooses the remedy.
30
owners. See Tatum v. Basin Resources, Inc., 141 P.3d 863, 871 (Colo. App. 2006)
(finding that “the Colorado Surface Coal Mining Reclamation Act and its associated
regulations do not confer onto a defendant found to have caused subsidence damage to a
plaintiff the power to elect which remedy to provide.” (Citation omitted.)).
Accordingly, we hold that the West Virginia Code of State Rules §§ 38-2-
16.2.c. to 38-2-16.c.2., which were promulgated pursuant to the West Virginia Surface
Coal Mining and Reclamation Act [West Virginia Code §§ 22-3-1 to 22-3-38], provide
that when a coal operator causes subsidence damage to structures or facilities, the
operator is required to either correct the material damage caused to any structures or
facilities by repairing the damage or compensate the owner of such structures or facilities
in the full amount of the diminution in value resulting from the subsidence. The owner of
the damaged structures or facilities shall choose between the two remedies.
IV. Conclusion
For the reasons set forth above, we answer the certified questions as
follows:
(1) Under West Virginia law, does a deed provision
(1902) transferring the right to mine coal “without leaving
any support for the overlying strata and without liability for
any injury which may result to the surface from the breaking
of said strata,” prohibit a surface estate owner from pursuing
a common law claim for loss of support arising from
subsidence caused by the extraction of coal from below the
surface?
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Answer: Yes.
(2) Assuming the surface lands and residence of a
landowner have been materially damaged from subsidence,
does the West Virginia Surface Coal Mining and Reclamation
Act, W.Va. Code § 22-3-1 et seq., (the “Act”) authorize an
action against the coal mine operator for the damage so
arising; or, are landowners only permitted to seek injunctive
relief compelling compliance with the Act’s provisions?
Compare W.Va. Code § 22-3-25(a) with id. § 22-3-25(f), and
(3) (a) If the Act permits a suit for damages, what is the
proper measure of damages? Specifically, is a landowner
permitted to recover only the diminution in value to the
property arising from the subsidence, or can the property
owner alternatively recover damages in an amount equal to
the cost to repair the property?
(b) Additionally, if the Act permits a suit for damages,
can those damages include compensation for “annoyance,
inconvenience, aggravation and/or loss of use”?
Answer: A surface owner may commence a civil action
against a coal operator pursuant to West Virginia Code § 22-
3-25(f) (1994) alleging that injury to the surface owner’s
person or property was caused through the coal operator’s
violation of a rule, order, or permit issued under the West
Virginia Coal Mining and Reclamation Act [West Virginia
Code §§ 22-3-1 to 22-3-38]. If the surface owner proves a
violation and that the violation caused the alleged injury, the
surface owner may recover monetary damages including, but
not limited to, damages for annoyance and inconvenience
resulting from the violation. In the event the surface owner is
unable to prove that the coal operator violated such rule,
order, or permit, or proves the violation but fails to prove that
the violation caused the alleged injury, then the surface
owner’s remedies for subsidence damage are those provided
in the West Virginia Code of State Rules §§ 38-2-16.2.c to
38-2-16.2.c.2.
(4) Lastly, the regulations issued under the Act
provide that when a coal mine operator causes subsidence
damage to the “structures or facilities,” the operator must
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either correct it or “compensate the owner . . . in the full
amount of the diminution in value” as a result of the mining.
See W.Va. Code R. § 38-2-16.c.2; see also id. § 38-2-
16.2.c.1. The regulations, however, do not designate which
party gets to make this election between remedies if the
parties fail to reach an agreement. Between the landowner
and the coal mine operator, who elects the appropriate
remedy and what standards govern that decision?
Answer: The owner of the structures or facilities chooses the
remedy.
Certified Questions Answered.
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