                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 11-2277


ORYN TREADWAY SHEFFIELD, JR. TRUST; JOHN TOLMAN SHEFFIELD
TRUST,

                Plaintiffs - Appellants,

JOHN TOLMAN SHEFFIELD; ORYN TREADWAY SHEFFIELD, JR.,

                Trustees – Appellants,

           v.

CONSOLIDATION COAL COMPANY,

                Defendant – Appellee.



Appeal from the United States District Court for the Western
District of Virginia, at Abingdon.   James P. Jones, District
Judge. (1:11-cv-00049-JPJ-PMS)


Argued:   October 25, 2012                  Decided:   November 21, 2012


Before TRAXLER, Chief Judge, and WILKINSON and AGEE, Circuit
Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Ilya I. Berenshteyn, THE SENTER LAW FIRM, PC, Bristol,
Tennessee, for Appellants.        James Robert Creekmore, THE
CREEKMORE LAW FIRM, PC, Blacksburg, Virginia, for Appellee. ON
BRIEF: Blair N. C. Wood, THE CREEKMORE LAW FIRM, PC, Blacksburg,
Virginia; Jonathan T. Blank, Lisa M. Lorish, MCGUIREWOODS, LLP,
Charlottesville, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

      The Oryn Treadway Sheffield, Jr. Trust and the John Tolman

Sheffield     Trust     (“Appellants”)            appeal    a   district   court     order

dismissing     their     complaint      against       Consolidation        Coal   Company

(“Consolidation”).          Finding no error, we affirm.

      Appellants brought this action in federal district court

against Consolidation, asserting causes of action for trespass,

conversion,      assumpsit,        and     negligence,            and   seeking      money

damages.      Their amended complaint alleges the following facts.

      By deed dated December 4, 1937, Prater Coal Land Company

conveyed to H. Claude Pobst and F.H. Combs “all of the coal, oil

and gas as well as all such other minerals, metal and timber as

[Prater Coal Land Company] may own or be entitled to in or upon

the   lands    hereinafter       identified,          together      with   all    rights,

privileges and easements in, on or under [such lands located in

Buchanan      County,       Virginia,    as       described].”          J.A.   71.     On

December 28, 1937, Pobst and Combs then conveyed by deed to

Levisa   Coal        Corporation    “all      the     coal,       metals   and    timber,

together      with    all    rights,     privileges         and    easements      incident

thereto, in, on or under” the parcels that the December 4 Deed

described (the “Buchanan parcels”).                        J.A. 76.     Following that

conveyance, Pobst and Combs each retained a 50% interest in the

oil, gas, and “all other such minerals” in the Buchanan parcels.



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       On November 16, 1956, Levisa Coal leased to Island Creek

Coal Company (“Island Creek Coal”) the rights to remove the coal

from the Buchanan parcels and “to make any use of the leased

premises      which     [Island         Creek         Coal]        may    deem        needful      or

convenient in carrying on its mining or other operations.”                                       J.A.

61 (internal quotation marks omitted).

       Pobst died in 1965 and devised the remainder of his estate

to    his    second     wife,       Jessie     Maie         Pobst.         As     part      of     the

settlement of an apparent dispute concerning the will, Jessie

Maie    Pobst       granted     her    late        husband’s         children         a    one-half

undivided interest “in all of the real property of which . . .

Claude      Pobst     died     seized       and       possessed,         and     situate[d]        in

Buchanan County.”            J.A. 37.        As a result, Jessie Maie Pobst was

left with a 25% interest in “all other such minerals” in the

Buchanan parcels.

       When Jessie Maie Pobst died in 1989, her will provided for

two testamentary trusts, namely, the two Appellants herein, the

Oryn     Treadway      Sheffield,           Jr.,       Trust       and     the    John       Tolman

Sheffield     Trust.          Her    interest         in    the    Buchanan       parcels        thus

passed to Appellants, and it is via this chain of title, that

together they claim a 25% interest in “all . . .                                  minerals” in

the    Buchanan      parcels        other    than          coal,    oil,       gas,       metals    or

timber.



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       Island    Creek     Coal       mined   coal     from    the     Buchanan     parcels

through its VP3 Mine until 1998.                    The amended complaint alleges

that, during the time Island Creek Coal was utilizing the VP3

Mine,   “minerals       such     as    ore,    rock,    or    any    other    homogeneous

crystalline element, were removed.”                     J.A. 62-63.          While active

coal    mining     in     the    VP3    Mine       ceased     in    1988,    the    amended

complaint does not allege that there is no coal remaining or

that the mine was abandoned.

       Island Creek Coal is a subsidiary of Consolidation, which

owns the Buchanan No. 1 Mine, located not far from the VP3 Mine.

The complaint alleges that around 2006 Consolidation Coal began

depositing      wastewater       from    the       Buchanan    No.    1   Mine     into    the

underground voids of the VP3 Mine.

       Consolidation moved to dismiss the amended complaint for

lack of standing and for failure to state a claim.                           The district

court granted the motion.               The court concluded that Appellants’

claims centered around their assertions that their interest in

“all other such minerals” in the parcels gives them an ownership

interest in the voids in the VP3 Mine and that Consolidation had

harmed Appellants’ mineral interest.                    The court determined that

Appellants       failed     to    allege       facts    in     their      complaint       that

plausibly established either of these propositions.                           As such, it

ruled that Appellants “lack standing to bring any claims based

on an ownership interest in the VP3 Mine voids” and that the

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amended complaint “fails to state a claim against Consolidation

based    on   [Appellants’]     ownership      interest        in    the    ‘other

minerals.’”        Oryn     Treadway        Sheffield,       Jr.,     Trust     v.

Consolidation   Coal    Co.,   819    F.   Supp.   2d   625,    631   (W.D.    Va.

2011).

     Appellants   now     appeal     the   dismissal    of   their    complaint.

Having considered the parties’ briefs, the joint appendix, and

the oral arguments of counsel, we find no error and affirm on

the reasoning of the district court.

                                                                           AFFIRMED




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