167 S.E. 737 | W. Va. | 1933
This action involves the right of surface owners to recover for injuries to their property, caused by the removal of all the coal from under the land, there having been a severance of the title to the coal and the surface. The surface owners secured a judgment for damages in the lower court, and a writ of error followed.
In the deed effecting the severance (made in 1892) the surface (only) was conveyed, and the right to remove the coal reserved in the following terms:
"And the said parties of the first part hereby reserve the right to mine and ship by the most practicable method all of the coal and other minerals lying in and upon said lands."
In the case of Griffin v. Fairmont Coal Co.,
The defendant herein takes the position that there is no difference in the effect of the words expressing the right of removal in the instant case and those in the Griffin case; that the construction adopted there has not been reversed, *311 nor has hint of reversal been given in our decisions; that the construction has become an established rule of property in this state; that because thereof defendant has continued to pay taxes on the entire body of the coal, and has mined all of the coal from under the plaintiff's property; and that to depart from that construction now would mean an irreparable loss to defendant.
The modern decisions of both England and America recognize that the right of subjacent support may be waived either expressly or by necessary implication. See Butterknowle Co. v.Bishop Co., 75 L. J. Chy. Div. 541, 546; Stilley v. BuffaloCo.,
The Griffin decision has never been approved in so many words by this Court, but it was recognized as the law on this *312
proposition (by distinguishing it) in 1921, in Hall v. CoalCo.,
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. The word ship (in the instant case) necessarily implies a prior removal of the coal. The phrase "by the most practicable method" benefits the *313
coal operator instead of the surface owner. The difference, if any, between the right to mine and remove all the coal and the right to mine and ship by the most practical method all thecoal is in favor of the defendant. 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. Kuhn v.Fairmont Coal Co., 179 F. 191, 210; Clark v. Figgins,
The plaintiffs were not entitled to recover, and the judgment of the lower court is reversed and the case remanded.
Reversed and remanded.