                                                                             FILED
                                                                          April 12, 2018
No. 17-0641 McElroy Coal Company v. Schoene                                 released at 3:00 p.m.
                                                                        EDYTHE NASH GAISER, CLERK
                                                                        SUPREME COURT OF APPEALS
                                                                             OF WEST VIRGINIA 
Justice Ketchum, concurring, in part, and dissenting, in part:

              I disagree with the majority’s answer to the first certified question. The

federal district judge thoroughly examined the West Virginia law and correctly

determined that the waiver of subjacent support in the 1902 deed did not prohibit the

Plaintiffs from pursuing a common law claim for subsidence damage to their home.

              The resolution of this issue only required a simple application of this

Court’s plain, clear, unambiguous holding in Cogar v. Sommerville, 180 W.Va. 714, 379

S.E.2d 764 (1989). In Syllabus Point 3 of Cogar, the Court held, in relevant part, “A

release ordinarily covers only such matters as may fairly be said to have been within the

contemplation of the parties at the time of its execution.” (Emphasis added). Thus, a

waiver of subjacent support is only valid when the type of mining activity was “within

the contemplation” of the original parties to the deed containing the waiver. The Court’s

holding in Cogar followed a long line of mining cases. As it explained, the Court’s

ruling was

              consistent with our mining cases holding that a severance
              deed is to be construed in light of the conditions and
              reasonable expectations of the parties at the time it is made.
              As a consequence, mining methods not contemplated at
              the time of the severance deed may not be utilized. See
              Brown v. Crozer Coal & Land Co., 144 W.Va. 296, 107
              S.E.2d 777 (1959) (auger mining); West Virginia-Pittsburgh
              Coal Co. v. Strong, 129 W.Va. 832, 42 S.E.2d 46 (1947)
              (strip mining). It would be impossible to conceive that the
              parties to old severance deeds would have any
              contemplation of waiving future statutory rights.



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                    Furthermore, in Syllabus Point 1, in part, of Winnings
             v. Wilpen Coal Co., 134 W.Va. 387, 59 S.E.2d 655 (1950),
             we held that a coal severance deed containing broad mining
             rights would not be construed to waive the right of subjacent
             support “unless [the surface owner’s] intention so to do
             clearly appears from express language or by necessary
             implication.”
                    ...
                    Finally, 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. As we stated in Syllabus Point
             2 of Conley v. Hill, 115 W.Va. 175, 174 S.E. 883 (1934),
             overruled on other grounds, Thornton v. Charleston Area
             Medical Center, 158 W.Va. 504, 213 S.E.2d 102 (1975):

                    “A release ordinarily covers only such matters as may
             fairly be said to have been within the contemplation of the
             parties at the time of its execution.”

Cogar, 180 W.Va. at 719-20, 379 S.E.2d at 769-70 (emphasis added).

             The deed in the present case was made in 1902. In 1902, most coal was

mined by miners using picks and shovels. Additionally, most coal was removed from

coal mines by wagon or carts on rails pulled by mules.         The defendants’ mining

operations under the plaintiffs’ property in the instant case was done using the longwall

method of mining. Longwall mining uses huge million dollar machines that rip out tons

of coal in seconds, shooting it out of the mine on continuously running conveyor belts.

The federal district judge did extensive research on longwall mining and concluded as

follows:

             This Court holds 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. Longwall mining provides almost

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             a certainty of significant subsidence and the loss of all natural
             water sources. On the other hand, room and pillar mining, that
             known in 1902, carries with it only the possibility of
             subsidence and not commonly the loss of water resources.

Schoene v. McElroy Coal Co., 2016 WL 397636, at 6 (N.D. W.Va. Jan. 29, 2016)

(emphasis added).

             The federal district judge was correct in ruling that the waiver of subjacent

support was not enforceable because longwall mining was unknown in Marshall County

in 1902, and, therefore, not contemplated by the parties to the 1902 deed.

             I agree with the majority opinion’s answers to the other certified questions.




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