Mcelroy Coal Co. v. Schoene

813 S.E.2d 128

MCELROY COAL COMPANY, Petitioner

v.Michael SCHOENE and Patricia Schoene, Respondents

No. 17-0641

Supreme Court of Appeals of West Virginia.

Submitted: January 16, 2018

Filed: April 12, 2018

Concurring and Dissenting Opinion of Justice Walker April 13, 2018

Rodger L. Puz, Esq., J.R. Hall, Esq., Dickie McCamey & Chilcote, P.C., Pittsburgh, Pennsylvania, Counsel for Petitioner

J. Thomas Lane, Esq., Carrie J. Lilly, Esq., Bowles Rice LLP, Charleston, West Virginia, Counsel for Amicus Curiae, The West Virginia Coal Association

James G. Bordas, Jr., Esq., Jeremy M. McGraw, Esq., James B. Stoneking, Esq., Bordas & Bordas, PLLC, Wheeling, West Virginia, Counsel for Respondents

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. 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[.]

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 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 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.

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).

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...