Fisher v. West Virginia Coal & Transportation Co.

Given, Judge,

dissenting:

Until the decision in this case I had believed that an owner of real estate in West Virginia had the sole and absolute right to the use thereof. Now I find that part of such right has been whittled away by court decisions, decisions of courts of other jurisdictions. The right so whittled away may be of little significance to the plaintiffs in the present case. On the other hand, it may effectually destroy, for many decades, the most beneficial use to which the remainder of their land can be put. The location and operation of a large mining plant in the immediate vicinity, which, we may assume for illustration, could not be operated at that place without the right of which the plaintiffs are now deprived, will effectually interfere with the uses to which the owners may desire to put their land, and probably destroy any sales or economic value thereof.

The majority opinion is founded upon the case of Lillibridge v. Lackawanna Coal Co., 143 Pa. 293, 22 A. 1035, 13 L. R. A. 627, 24 Am. St. Rep. 544, but the majority attempts to draw support from the cases of Robinson v. Iron Co., 99 W. Va. 435, 129 S. E. 311, and Armstrong v. Coal Co., 67 W. Va. 589, 69 S. E. 195.

In the Robinson case it was merely held, as disclosed in the opinion, that “In view of the virtual ownership by the defendant of the land between the center of the earth and the stratum near the top of the surface, we have no doubt of the defendant’s right to use the said passageways. in such manner as will not unreasonably interfere with the enjoyment by plaintiff of his interest in the land.” *628The Court considered the defendant as owner of complete title to the whole land “between a stratum near the top of the surface, and the center of the earth * * This is clearly pointed out in the recent opinion of this Court in Tate v. United Fuel Gas Co., 137 W. Va. 272, 71 S. E. 2d 65. This being true, there could be no question as to defendants’ right to use the passageways. The Court simply applied the familiar rule to the effect that one may use his own property in any way he chooses, so long as he does not injure another. It is true that the Court, in the Robinson case, cited the Lillibridge case, but I think it was cited for illustration of the point involved, not as a persuasive authority.

In the Armstrong case the plaintiffs sought specific performance of an option contract, relating to a number of adjoining tracts of land. The question involved related to the sufficiency of mining rights as to those tracts of land only, not as to lands other than those included in the contract. There can be no doubt that the owners of the lands included within the option contract could convey any right owned by them. Only those rights were involved. True, certain statements contained in the opinion would tend to indicate approval of the rule laid down in the Lillibridge case, as limited by Webber v. Vogel, 189 Pa. 156, 42 A. 4, but such statements were unnecessary to the decision of the case.

Three of the seven Judges participating in the Lilli-bridge case dissented, and the holding in that case was sharply limited by the Pennsylvania Court in Webber v. Vogle, supra. Moreover, the Pennsylvania Court has refused to apply the principle in any situation except that relating to the mining of coal, as have all other Courts considering the question, in so far as I have been able to find. See Webber v. Vogel, 159 Pa. 235, 28 A. 226, (reported as Vogel v. Webber in the Atlantic Reporter). It should also be noted, as was done in Clayborn v. Camilla Red Ash Coal Co., 128 Va. 383, 105 S. E. 117, 15 A. L. R. 946, and in an article entitled Rights of Fee Simple Owner of Subjacent Mineral Stratum in the Containing Space, 32 W. V. *629L. 242, that in the Lillibridge case the Court considered the facts to be “* * * that all the coal in the vein has not been taken out, or that the tunnel is opened on the bedrock underneath the vein; on the contrary, it is alleged that the tunnel has been cut through the coal, by which we understand it is the very body or substance of the coal which was bought by the defendant.” Thus, it clearly appears that the actual holding in the Lillibridge case is not authority for the position of the majority in the instant case.

In the Clayborn case, later followed in Yukon Pocahontas Coal Co. v. Ratliff, 181 Va. 195, 24 S. E. 2d 559, and Raven Red Ash Coal Co. v. Ball, 185 Va. 534, 39 S. E. 2d 231, 167 A. L. R. 785, the Virginia Court refused to follow the rule laid down in the Lillibridge case, discussed leading cases relating to the rule, and pointed out, in the following language, the illogical conclusions upon which the rule is based:

“It seems to us that a more pertinent and convincing question would have been this: If the defendant owned both the coal and the space, why did his right to the space terminate immediately when the coal was removed? A somewhat similar situation arises when one buys a standing tree. He gets the tree as a part of the real estate, with an easement for support and removal, but he does not acquire any corporeal right in the soil or in the space which the tree occupies. It seems to us that the true and perfectly patent principle is that when a man buys coal, whether he stipulates for the privilege of taking it out or not, he simply gets the coal, with the right to remove it. The coal is his property. As to that he has a corporeal estate just as he has in standing timber. Coal and timber become personal property as soon as they are severed. The right to mine and remove is an incorporeal hereditament, an easement expressed in or incident to the grant of the fee, and in the exercise of this easement the grantee has no more right to put an additional burden upon the ser-vient estate than he would have to haul timber from an adjoining tract over a tract upon which he had bought *630the timber with the right of removal. It is only fair to say that this view is directly challenged and rejected in the Pennsylvania case under- consideration. The vital difference between the doctrine of that case and the conclusion we have reached is that the Pennsylvania case assumed that the conveyance of coal carries a corporeal interest in the walls containing the coal, as well as in the coal itself, whereas under our view this assumption is not warranted, and the conveyance carries a corporeal interest in the coal only, with an easement in the walls for support and removal.
“The reasoning of the Pennsylvania court in the later case of Chartiers Block Coal Co. v. Mellon, 152 Pa. 286, 25 Atl. 597, 18 L. R. A. 702, 34 Am. St. Rep. 645, cannot, in our judgment, be reconciled with the rule apparently approved, though, as shown above, not actually involved in the decision, in the Lillibridge Case. In the Mellon Case, dealing with the right of the surface owner to sink a shaft through an entry in coal owned by another to reach a deposit of oil below, it was held that when the surface owner has conveyed the coal under his land, his legal right of access to the strata underlying the coal is clear; that the grantee of the coal owns nothing but the coal and the right of access thereto and removal thereof; that when all the coal is removed the estate therein ends and the space occupied reverts to the grantor by operation of law; and that the grant of the coal does not convey any interest in the strata underlying it. * *

An analysis of the decisions dealing with the subject need not be undertaken here. That has been done thoroughly and clearly in an article by James W. Simon-ton, formerly Professor of Law of West Virginia University, and Stanley C. Morris, entitled, The Nature of Property Rights in a Separately Owned Mineral Vein, 27 W. L. Q. 332, wherein the authors conclude that the Virginia Court, in the Clayborn case, “arrived at the proper concrete result”. See also an article entitled Mines and Minerals — Rights of Grantee of Coal to Use Underground Haulway Made in Mining the Coal, VII Virginia Law Review *631404. In limiting the rule of the Lillibridge case, the Pennsylvania Court, in Webber v. Vogel, supra, stated: “* * * we do not intend that the rule in that case shall be extended beyond what was plainly decided. * * *. In nearly every case the instrument itself discloses the intention of the parties that the coal shall be mined; that is, that the subject of the grant shall soon be exhausted or consumed. It is severed from the under and over lying land for the purpose of turning it into money. It would not only be a perversion of the intention to merely use such an estate to reach other coal, but such use would be a continual menace to the stability of the surface. No owner of the upper land could tell when his estate would cease to be disturbed by workings underneath. It was intended to go no further in the case cited than to hold that, while the purchaser of the coal was in good faith mining out his coal, his right to the use of the space made vacant by his workings as they progressed could not be successfully obstructed by the owner of the surface; and not that by the purchase of the coal he obtained an undisputed and perpetual right of way under another’s land. The owner of the land above and below has a right to the reversion of the space occupied by the coal within a time contemplated by the parties when they sever that peculiar part of the land from its horizontal adjoiners(Emphasis supplied.)

While the majority bases its holding upon the rule in the Lillibridge case, it apparently refuses to apply the restrictions or limitations placed thereon by the Pennsylvania Court in Webber v. Vogel, supra. But, as I understand, the majority opinion permits the purchaser of the coal to use subterranean passageways so long as mining “is being prosecuted with due diligence”, whether underneath the 16 acres or other tracts, provided “the corporate defendant is conducting its mining operation in accordance with modern and approved practices”. Thus, the landowners’ rights depend, not upon their deed, but upon proof of “modern and approved practices”. If “modern and approved practices” permit the mining of the coal vein from *632the distant tracts first, whatever that distance may be, and notwithstanding title to such distant tracts may have been acquired by the operator long subsequent to the deed for the tract through which the right to use the subterranean passageway was claimed, as was done in the instant case, the owners can not complain. Clearly, I think, the majority has ignored the limitation of “good faith mining” of .the 16 acres, and has also ignored the right of the owners “to the reversion of the space occupied by the coal within a time contemplated by the parties” when they executed their deed, as required by the holding in Webber v. Vogel, supra.

In the instant case the majority opinion considers the language relating to the mining rights contained in the deed conveying the coal to be “ambiguous in that it could be loosely construed to restrict such rights to the mining and removal of coal under the 16 acre tract.” The deed conveys “all the coal underlying the following described tract of land”, and its language relating to the mining rights is: “* * * and, doth grant all the necessary mining rights and privileges necessary for the operation and mining and removal of said coal and all subterranean rights and ways necessary or convenient for the proper working and mining of the coal under said land.”' I see no ambiguity in this plain, simple, everyday language. No word or clause of doubtful meaning is contained therein. The words “said coal” can not possibly be given any application other than to the coal conveyed. The words “the coal under said land” can be given no meaning or application that does not relate to the coal under the 16 acre tract. Coal under other or adjoining tracts is, in no manner, mentioned or referred to in the deed. Thus, if we apply the rule of the majority, the grantee took a right not merely omitted from the grant, but expressly excluded therefrom. No authority need be cited in support of the general rule to the effect that the intention of the parties to a deed, as disclosed by the language used therein, establishes its true meaning.

Another rule, expressio unius est exclusio alterius, *633which is believed to have been ignored by the majority, is stated in 17 C. J. S., Contracts, Section 312, thusly: “The expression in a contract of things of a class implies the exclusion of. all not expressed, even though all would have been implied had none been expressed.” The language contained in the deed granted only the coal under the 16 acre tract, and granted only mining rights relating to “said coal”. Necessarily, any other or further right could not be implied. Yet the majority says that the language had the effect of granting the further right to use the passageways through the 16 acre tract for the purpose of mining other coal from other lands, but to what extent, as to time or distance, it dares not say. In Ferimer v. Lewis, Hubbard & Co., 114 W. Va. 629, 173 S. E. 264, this Court held: “Ordinarily, courts are not warranted in reading into contracts words which will add to or take from the meaning of the words already contained therein.”

Being of the views indicated, I respectfully dissent.