65 W. Va. 636 | W. Va. | 1909
This is a chancery suit brought in the circuit court of Hancock county by Pred G. Porter against the Mack Manufacturing ' Company. Porter claiming the fire clay, coal and other minerals in a tract of land went upon it with his hands to construct a tram road upon the surface for the purpose of conveying fire clay and perhaps other minerals, which he owned, in order to use them in the manufacture of fire brick in a plant of his upon
Desellem and Cooper were owners of the whole body, the corpus, of a tract of land, and by deed they conveyed the tract to Evans, the grantors “reserving to themselves all the clay, fire clay, coal, stone and minerals of whatever kind underlying the above described tract of land, with the right to mine and remove the same.” By this deed Desellem and Cooper granted the surface, granted the land, except that they did not grant, but retained, the minerals. In other words, they made two estates out of the land, two properties, one the surface or body of the land, the other the minerals, which the deed operated to leave in them, or rather, the- minerals before vested in them remained in them. They thus severed the minerals from the balance of
Counsel for defence would oppose the plaintiff’s suit, upon many authorities, on the theory that his Tight stands on the law of way of necessity, and that he must prove that necessity. Say that the law of way of necessity is applicable. Do we not know, without proof, that a’ use of the surface of necessity calls fox a way of inlet and outlet to one who owns the coal or other mineral to produce and market it? The question submits the answer. But how can we logically talk about a way of necessity. That is obiter, because' the deed reserves minerals, “with -the right to mine and remove .the same.” What use to mine, with
It is even argued that Porter had to first prove that there are minerals in the land. This is not so. He had right to search for them, if they had not been before found. And he had right to build a tramway, or other way suitable, in anticipation- of finding the minerals sought for. But, in fact, prior work had found the useful fire clay, and this tram was considered by Porter as a suitable, convenient and necessary mode of transportation. It is so proven, if we cannot say so without proof, as we can.
It is said that equity has no jurisdiction because there is adequate remedy at law. That is a ground assigned in the demurrer, but not insisted upon in the brief. It is untenable. What remedy? We are not informed by counsel. An action at law might give damages; but how measure damages? .How many actions? Por each day, week or month? That would not .give the easement, the ingress and egress. And that would say that Porter! must give up his right of ingress and egress, his part of the body of the land. Indeed, there is no question of pecuniary damage. Porter owned part of the land, not the surface, but the minerals. He had a property therein, and a right as to the surface, and this claim would deny this property right; would be akin to denial by a cotenant of joint use. Porter has just as much right to his share, or portion, as has the defendant to the surface, and that property cannot be enjoyed without use of the surface. The deed to Evans reserved this property. The very nature of the case tells that equity is the only court that can give adequate relief. The equity remedy is well settled to restrain obstruction to clear right of way pr easement. High on Injunction, secs. 886, 896; Fluharty v. Fleming, 58 W. Va. 669; Tuft v. Copen, 37 Id. 633. It cannot be said that Porter must first establish his right at law. It is not controverted, but admitted, that Porter is owner of the minerals. This ownership is conclusively established. “But it is not necessary that complainant’s title should have been actually established by an
Counsel says that the bill alleges irreparable injury without stating facts showing it. Clearly this position can not be sustained. The bill shows a severance of minerals from the surface, a property in Porter of the minerals, and an acknowledged resistance by the surface owner of the right of way and right to open the surface to get tire minerals, and a clear obstruction of the right. We judicially know that ownership of the minerals is a property right and of great value, and there is proven and admitted open denial, open resistance and obstruction of the right vested in‘Porter, not merely by implication, but by express reservation in the deed to Evans.
The bill alleges, the evidence shows that the tramway is a suitable and necessary means of transporting the fire clay and that the opening allowed was necessary.
We see no error in the decree, and therefore affirm it.
Affirm ed.