          IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

                                  January 2018 Term
                                                                             FILED
                                  _______________
                                                                          April 12, 2018
                                                                             released at 3:00 p.m.
                                    No. 17-0641                          EDYTHE NASH GAISER, CLERK
                                  _______________                        SUPREME COURT OF APPEALS
                                                                              OF WEST VIRGINIA 


                           MCELROY COAL COMPANY,
                                 Petitioner

                                         v.

               MICHAEL SCHOENE AND PATRICIA SCHOENE,
                                 Respondents
       ____________________________________________________________

                    CERTIFIED QUESTIONS ANSWERED
       ____________________________________________________________

                            Submitted: January 16, 2018
                               Filed: April 12, 2018

Rodger L. Puz, Esq.                                   James G. Bordas, Jr., Esq.
J.R. Hall, Esq.                                       Jeremy M. McGraw, Esq.
Dickie McCamey & Chilcote, P.C.                       James B. Stoneking, Esq.
Pittsburgh, Pennsylvania                              Bordas & Bordas, PLLC
Counsel for Petitioner                                Wheeling, West Virginia
                                                      Counsel for Respondents
J. Thomas Lane, Esq.
Carrie J. Lilly, Esq.
Bowles Rice LLP
Charleston, West Virginia
Counsel for Amicus Curiae
The West Virginia Coal Association


JUSTICE LOUGHRY delivered the Opinion of the Court.

CHIEF JUSTICE WORKMAN concurs in part, dissents in part, and reserves the right to
file a separate opinion.




                                           
JUSTICE KETCHUM concurs in part, dissents in part, and reserves the right to file a
separate opinion.

JUSTICE WALKER concurs in part, dissents in part, and reserves the right to file a
separate opinion.




                                          
                              SYLLABUS BY THE COURT 



              1.     “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.” Syl. Pt. 1, Winnings v. Wilpen Coal Co., 134

W.Va. 387, 59 S.E.2d 655 (1950).



              2.     “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 the 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., 180 W.Va. 182, 375 S.E.2d 814 (1988).



              3.     “Deeds 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).



              4.     “A valid written instrument which expresses the intent of the parties

in plain and unambiguous language is not subject to judicial construction or interpretation



                                              i 
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).



              5.     “It 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 language in their

written contract or to make a new or different contract for them.” Syl. Pt. 3, Cotiga Dev.

Co. v. United Fuel Gas Co., 147 W.Va. 484, 128 S.E.2d 626 (1962).



              6.     “Extrinsic evidence will not be admitted to explain or alter the terms

of a written contract which is clear and unambiguous.” Syl. Pt. 9, Paxton v. Benedum-

Trees Oil Co., 80 W.Va. 187, 94 S.E. 472 (1917).



              7.     “Where a deed conveys the surface of a tract of land, reserving the

coal and the right to mine and ship all of the coal, the surface is divested of its inherent

right of support from the coal.” Syl. Pt. 2, Simmers v. Star Coal & Coke Co., 113 W.Va.

309, 167 S.E. 737 (1933).



              8.     “Where a deed conveys the coal under a tract of land, together with

all the rights and privileges necessary and useful in the mining and removal of said coal,

including the right of mining the same with or without leaving any support for the

overlying strata, and without liability for any injury which may result to such overlying

strata or to the surface, or to water courses or roads or ways by reason of the mining and


                                             ii 
removal of said coal, the grantee is not liable for damages to the surface or to structures

upon the surface, which damages result from surface subsidence proximately resulting

from the mining and removal of such coal.” Syllabus, Stamp v. Windsor Power House

Coal Co., 154 W.Va. 578, 177 S.E.2d 146 (1970).



             9.     “The definitions of ‘surface mine,’ ‘surface mining,’ or ‘surface-

mining operations’ contained within the West Virginia Surface Coal Mining and

Reclamation Act, W.Va. Code § 22-3-1, et seq., include ‘surface impacts incident to an

underground coal mine,’ and areas ‘where such activities disturb the natural land

surface.’” Syl. Pt. 4, Antco, Inc. v. Dodge Fuel Corp., 209 W.Va. 644, 550 S.E.2d 622

(2001).



             10.    “Pursuant to the West Virginia Surface Coal Mining and

Reclamation Act, W.Va. Code, 22A-3-14 (1985) [now W.Va. Code, 22-3-14 (1994)], and

30 U.S.C. § 1266 (1977) of the federal Surface Mining Control and Reclamation Act and

their accompanying regulations, the operator of an underground mine is required to

correct any material damage resulting from subsidence caused to surface lands, to the

extent technologically and economically feasible by restoring the land to a condition

capable of maintaining the value and reasonable foreseeable uses which it was capable of

supporting before subsidence.” Syl. Pt. 4, Rose v. Oneida Coal Co., Inc., 195 W.Va. 726,

466 S.E.2d 794 (1995).




                                            iii 
              11.    “A regulation that is proposed by an agency and approved by the

Legislature is a ‘legislative rule’ as defined by the State Administrative Procedures Act,

W.Va. Code, 29A-1-2(d) [1982], and such a legislative rule has the force and effect of

law.” Syl. Pt. 5, Smith v. W.Va. Human Rights Comm’n, 216 W.Va. 2, 602 S.E.2d 445

(2004).



              12.    “The West Virginia Surface Coal Mining and Reclamation Act

allows for a private cause of action: ‘Any person or property who is injured through the

violation by any operator of any rule, order or permit issued pursuant to this article may

bring an action for damages, including reasonable attorney and expert witness fees, in

any court of competent jurisdiction. . . .’ W.Va. Code § 22-3-25(f) (1994).” Syl. Pt. 5,

Antco, Inc. v. Dodge Fuel Corp., 209 W.Va. 644, 550 S.E.2d 622 (2001).



              13.    A surface owner may commence a civil action against a coal

operator pursuant to West Virginia Code § 22-3-25(f) (1994) alleging that injury to the

surface owner’s person or property was caused through the coal operator’s violation of a

rule, order, or permit issued under the West Virginia Coal Mining and Reclamation Act

[West Virginia Code §§ 22-3-1 to 22-3-38]. If the surface owner proves a violation and

that the violation caused the alleged injury, the surface owner may recover monetary

damages including, but not limited to, damages for annoyance and inconvenience

resulting from the violation. In the event the surface owner is unable to prove that the

coal operator violated such rule, order, or permit, or proves the violation but fails to prove


                                              iv 
that the violation caused the alleged injury, then the surface owner’s remedies for

subsidence damage caused by a coal operator are those provided in the West Virginia

Code of State Rules §§ 38-2-16.2.c to 38-2-16.2.c.2.



              14.    “The primary object in construing a statute is to ascertain and give

effect to the intent of the Legislature.” Syl. Pt. 1, Smith v. State Workmen’s Comp.

Comm’r, 159 W.Va. 108, 219 S.E.2d 361 (1975).



              15.    “Where the language of a statute is clear and without ambiguity the

plain meaning is to be accepted without resorting to the rules of interpretation.” Syl. Pt. 2,

State v. Elder, 152 W.Va. 571, 165 S.E.2d 108 (1968).



              16.    “Undefined words and terms used in a legislative enactment will be

given their common, ordinary and accepted meaning.” Syl. Pt. 6, in part, State ex rel.

Cohen v. Manchin, 175 W.Va. 525, 336 S.E.2d 171 (1984).



              17.    “Statutes which are remedial in their very nature should be liberally

construed to effectuate their purpose.” Syl. Pt. 6, Vest v. Cobb, 138 W.Va. 660, 76 S.E.2d

885 (1953).



              18.    “The West Virginia Surface Coal Mining and Reclamation Act,

W.Va. Code § 22-3-1, et seq., is remedial legislation that has as one of its primary


                                              v 
purposes the protection of the public from the potentially destructive effects that mining

may have on our lands, forests and waters.” Syl. Pt. 3, Antco, Inc. v. Dodge Fuel Corp.,

209 W.Va. 644, 550 S.E.2d 622 (2001).



              19.    “Annoyance and inconvenience can be considered as elements of

proof in measuring damages for loss of use of real property.” Syl. Pt. 3, Jarrett v. Harper

& Son, Inc., 160 W.Va. 399, 235 S.E.2d 362 (1977), modified on other grounds by

Brooks v. City of Huntington, 234 W.Va. 607, 768 S.E.2d 97 (2014).



              20.    The West Virginia Code of State Rules §§ 38-2-16.2.c. to 38-2-

16.2.c.2, which were promulgated pursuant to the West Virginia Surface Coal Mining

and Reclamation Act [West Virginia Code §§ 22-3-1 to 22-3-38], provide that when a

coal operator causes subsidence damage to structures or facilities, the operator is required

to either correct the material damage caused to any structures or facilities by repairing the

damage or compensate the owner of such structures or facilities in the full amount of the

diminution in value resulting from the subsidence. The owner of the damaged structures

or facilities shall choose between the two remedies.




                                             vi 
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.


                                              1
 
                             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[.]


                                                            
              1
       This Court would like to acknowledge the participation of the West Virginia Coal
Association in filing an amicus curiae brief in this case in support of McElroy. We have
considered the arguments of the Coal Association in answering the certified questions.

                                                                    2
 
                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

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


                                              3
 
               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.




                                              4
 
                                      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).




                                                5
 
              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 language in their written contract or to make a new or different contract for

them.” Id. at 484, 128 S.E.2d at 628, syl. pt. 3. Finally, “[e]xtrinsic evidence will not be

admitted to explain or alter the terms of a written contract which is clear and

unambiguous.” Syl. Pt. 9, Paxton v. Benedum-Trees Oil Co., 80 W.Va. 187, 94 S.E. 472

(1917).


                                             6
 
                             Upon application of our law to the waiver clause, we conclude that the

clause expressly and unambiguously grants to the coal owner or lessee the right to mine

the coal underneath the Schoenes’ surface estate without leaving “any” surface support

and without common law liability for “any” injury caused to the surface as a result of the

mining. Although the Schoenes assert that the phrase “necessary and useful” is undefined

and therefore renders the deed language ambiguous, we disagree. Giving the words

“necessary” and “useful” their common and ordinary meaning,2 these words simply

recognize that a coal operator will use the most legally efficient manner available to

remove the coal. These words have no effect on the unambiguous waiver language in the

deed. Therefore, we conclude that the Schoenes’ predecessors-in-interest expressly

waived the right to any subjacent support in unambiguous language.



                             The next issue we address is the validity of the waiver of subjacent support.

In denying McElroy’s Motion for Summary Judgment, the federal district court cited

syllabus point three of Cogar v. Sommerville, 180 W.Va. 714, 379 S.E.2d 764 (1989), for

the rule that waivers of subjacent support are only valid insofar as the proposed activity

was within the contemplation of the original parties to the conveyance. The district court

reasoned that in order to be within the contemplation of the original parties to the 1902

deed, it must be shown that the mining method, in this case longwall mining, was

contemplated by the parties at the time of severance. The district court also described the
                                                            
              2
       “Undefined words and terms used in a legislative enactment will be given their
common, ordinary and accepted meaning.” Syl. Pt. 6, in part, State ex rel. Cohen v.
Manchin, 175 W.Va. 525, 336 S.E.2d 171 (1984).

                                                               7
 
distinction between longwall mining and the method of mining utilized in 1902, known

as room and pillar mining, as follows:

              With longwall mining, “extraction takes place across a long
              ‘face’ or ‘wall’ which is blocked out between two panel
              entries which contain at least three parallel entries. . . . The
              recent technological advances which developed powered self-
              advancing roof support systems revolutionized longwall
              mining. The new roof support devices have the strength to
              hold the mine top secure keeping the face open and
              preventing roof falls in the face zone. While the powered self-
              advancing roof support is holding up the mine top above the
              working area where the coal is being removed, the roof
              immediately behind the support line is allowed to break and
              cave.”

                     “Because of virtually complete extraction of coal with
              overlying rock caving into the mining void, there is resulting
              subsidence of overlying strata of the surface which, unlike
              room and pillar mining, is relatively quick and more
              predictable as to timing.”

                     On the other hand, “the room and pillar mining method
              derives its name from the driving of openings into coal seams
              to divide the coal into blocks; these blocks or ‘pillars’ are
              solid coal left in situ to support the overlying strata.”

Schoene v. McElroy Coal Co., No. 5:13-CV-95, 2016 WL 397636, at *4-5 (N.D.W.Va.

Jan. 29, 2016) (quoting McGinley, Proceedings of the Eastern Mineral Law Foundation

Fifth Annual Institute, Ch. 5, p. 5-2 (1984) (citations and footnote omitted)). The district

court concluded 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.”

Id., at *5.




                                             8
 
              McElroy asserts that the waiver in the 1902 deed unambiguously and

expressly waives “any” subjacent support, which unequivocally demonstrates that the

parties to the severance deed contemplated the loss of all support and potential damage to

the surface estate from underground coal mining. According to McElroy, the proper

inquiry is not whether the parties to the severance deed contemplated the actual

underground mining method, but whether the parties to the 1902 deed contemplated the

loss of surface support and whether the grantor waived the common law right to support.

The Schoenes respond by essentially urging this Court to adopt the reasoning of the

district court in denying McElroy’s Motion for Summary Judgment: the waiver of

subjacent support in the 1902 deed is invalid because the longwall method of mining the

coal could not have been contemplated in 1902 by the parties to the 1902 severance deed.



              In their arguments to this Court, McElroy and the Schoenes cite to two

different lines of cases to support their respective positions regarding the validity of the

waiver. The line of cases supporting McElroy’s position details this Court’s

acknowledgment that when parties to a coal severance deed expressly waive the right to

support and liability, that agreement will be enforced. The Court’s reasoning in this line

of cases expressly addresses the “contemplation of the parties” argument advanced by the

Schoenes, as follows:

              [I]n all sales of minerals the question of injury to the lands
              not conveyed is of so much importance that courts should not
              assume that it was not considered and made part of the
              consideration of the deed. . . . [I]t is a matter of common
              information, known to all who have paid any attention to


                                             9
 
              mining that in coal mines the coal will have to remain in
              place as a support, or the surface be permitted to subside. . . .
              So it is a question of leaving something like one-half the coal
              in the mine or removing all and permitting the overlying
              surface to adjust itself to a new bed. And this, I again repeat,
              should be left for the parties to determine by their contract. If
              the owner of the coal wishes to keep half of it as a support for
              the surface he has a perfect right to do so, and if he wishes to
              sell all, and permit all to be removed he may also do that.
              When he has made his contract in accordance with his own
              will and reduced it to writing the courts may declare the legal
              effect of the writing but cannot change it.

Griffin v. Fairmont Coal Co., 59 W.Va. 480, 491-92, 53 S.E. 24, 29 (1905). This

statement clearly reflects the general awareness in 1905 that conveyance of all coal may

well cause subsidence. The idea that some mining methods at that time were more likely

than others to cause removal of all surface support is not indicated in Griffin. Rather, the

Court specifically addresses the fact that the owner of the coal has the right to sell all of

the coal and permit all of the coal to be removed. Therefore, Griffin stands for the

proposition that the parties to a severance deed may elect to allow all of the coal to be

removed, which may leave no support for the surface estate. Once the parties contemplate

this fact, it simply is not relevant by what underground coal mining method the removal

of all the coal is achieved.



              In 1933, this contemplation, i.e., the possibility of the removal of all coal

and of the resulting subsidence, was reiterated by this Court:

                     It is common knowledge in the coal fields that the
              removal of all of a seam of coal, even though several hundred
              feet below the surface (as in this instance), is likely to cause
              some surface disturbance. . . . It is not conceivable that one


                                             10
 
              who was purchasing or reserving surface would deliberately
              covenant that all the coal should be removed, if he were
              expecting the surface to be undisturbed. It is just as
              unreasonable that one buying or reserving coal would pay for
              or purport to reserve all the coal, and go through the farce of
              writing into the deed the right to remove all the coal, if he
              were contracting to leave the surface inviolate. Both grantor
              and grantee would well know that all the coal could not be
              removed if the surface were to be kept intact. A grantor
              cannot specifically sell a right and then recover damages of
              his grantee for using the very right sold; nor can a grantee
              recover damages of his grantor for employing a right when
              the grantee has agreed to the unrestricted reservation of the
              right. So, where the entire body of the coal and the express
              right to remove all of it has been purchased (as in the Griffin
              Case) or reserved (as in the instant case), there is no
              justification for mulcting the coal operator in damages for
              injuries arising from the exercise of that right.

              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. . . . 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


Simmers v. Star Coal & Coke Co., 113 W.Va. 309, 312-13, 167 S.E. 737, 738 (1933)

(emphasis in original) (citations omitted). In syllabus point two of Simmers, this Court

held that “[w]here a deed conveys the surface of a tract of land, reserving the coal and the

right to mine and ship all of the coal, the surface is divested of its inherent right of

support from the coal.” Id. at 309, 167 S.E. at 737 (citing syllabus point three of Griffin).

Simmers demonstrates the fallacy of the Schoenes’ position that because longwall mining

was utilized in this case, its removal of the surface support was not within the

contemplation of the parties. What was clearly within the contemplation of the parties,

even in the early 1900s, is that the right to mine and remove the coal would necessarily


                                             11
 
result in subsidence. That is all that has occurred in this case—subsidence. The means

by which that occurred is irrelevant. In 1970, this Court again held that

                      [w]here a deed conveys the coal under a tract of land,
              together with all the rights and privileges necessary and
              useful in the mining and removal of said coal, including the
              right of mining the same with or without leaving any support
              for the overlying strata, and without liability for any injury
              which may result to such overlying strata or to the surface, or
              to water courses or roads or ways by reason of the mining and
              removal of said coal, the grantee is not liable for damages to
              the surface or to structures upon the surface, which damages
              result from surface subsidence proximately resulting from the
              mining and removal of such coal.

Syllabus, Stamp v. Windsor Power House Coal Co., 154 W.Va. 578, 177 S.E.2d 146

(1970). The clarity of these holdings likely led to the Schoenes’ concession that they had

no common law cause of action.



              The line of cases relied on by the district court and the Schoenes simply is

not on point. See Cogar, 180 W.Va. 714, 379 S.E.2d 764; Brown v. Crozer Coal & Land

Co., 144 W.Va. 296, 107 S.E.2d 777 (1959); and W.Va.-Pittsburgh Coal Co. v. Strong,

129 W.Va. 832, 42 S.E.2d 46 (1947). As noted above, the federal district court relied on

the rule that waivers of subjacent support are only valid insofar as the proposed activity

was contemplated by the original parties to the conveyance. To support this

“contemplation of the parties” argument, the Schoenes rely on a single sentence in

Cogar: “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.” 180 W.Va. at 719, 379 S.E.2d at 769. In Cogar, the Court held that a waiver


                                            12
 
of surface damages was insufficient to waive the right to enforce the Coal Mining Act’s

ban on mining within 300 feet of a dwelling. 180 W.Va. at 717, 379 S.E.2d at 769. The

reason for that is obvious—waiver of damages for injury to the surface has little or

nothing to do with a restriction on where mining can occur. This was a statutory

prohibition that was enacted well after the deed at issue in Cogar. At the time the parties

executed the deed, they clearly could not have contemplated a future ban on mining

within 300 feet of a dwelling. In contrast, at the time of the 1902 deed in the instant case,

the parties to the deed could and did contemplate the removal of all subjacent support.



              Brown and Strong are likewise inapposite from the issue presented here. In

Brown, this Court held in syllabus point eight:

                     Deeds, one made in 1904 granting mineral rights in
              “all minerals” with “all rights-of-way, of ingress and egress
              over, across and through [said land] for the purpose of
              removing the minerals &c. therefrom”; one made in 1905
              granting “all the coal and other minerals and mineral
              substances . . . together with the right to mine and remove
              said minerals in the most approved method”; and one made in
              1907 reserving “all minerals . . . together with all necessary
              and useful rights for the proper mining, pumping, transporting
              of said minerals” do not give owners of such mineral rights
              the right to engage in improper mining such as would damage
              the surface owned by others by augur mining, a method of
              mining which at the time of the creation of the mineral rights
              was not an usual method of mining known and accepted as
              common practice in Wyoming County where the lands in
              question are located.

144 W.Va. at 296-97, 107 S.E.2d at 779-80. The Court explained the auger mining

conducted in Brown as follows:



                                             13
 
             The purpose of using the augur method was to get the coal
             out and it made no difference to the defendant that this
             method would split the plaintiffs’ land in two sections, the
             spoilage being over a mile in length and up to 400 feet wide
             in places, that the timber on the land in connection with the
             mining of the coal would be destroyed or diminished in value.
             The right of ingress and egress and the building of roads
             certainly was not anticipated at the time the deeds in question
             were executed to any such extent as used in auger mining as
             indicated on the land of the plaintiffs in this case.

144 W.Va. at 309-10, 107 S.E.2d at 786. The Court also indicated in the opinion that

“auger mining . . . results in extensive destruction of the surface.” 144 W.Va. at 304, 107

S.E.2d at 783.



             At issue in Strong was language in a severance deed that granted to the coal

owners the following rights:

                    Together with the right to enter upon and under said
             land with employees, animals and machinery at convenient
             point and points, and to mine, dig, excavate and remove all
             said coal, and to remove and convey from, upon, under and
             through, said land all said coal and the coal from other land
             and lands and to make and maintain on said land all necessary
             and convenient structures, roads, ways, and tramways,
             railroads, switches, excavations, air-shafts, drains and
             openings, for such mining, removal and conveying of all coal
             aforesaid, with the exclusive use of all such rights of way and
             privileges aforesaid, including right to deposit mine refuse on
             said land and waiving all claims for injury or damage done by
             such mining and removal of coal aforesaid and use of such
             privileges.

129 W.Va. at 833, 42 S.E.2d at 48. The specific issue in Strong was whether the rights

granted in the deed included the right of strip mining. This Court concluded that the

language did not include the right to strip mine because at the time the deed was executed


                                            14
 
in 1904, “the practice of strip mining was [not] known in this State to the extent that it

was necessarily within the implied contemplation of the parties to a private contract[.]”

Id. at 837, 42 S.E.2d at 49. The Court concluded that “it was not within the contemplation

of the parties that the owner of the coal by virtue of the mining rights granted should be

entitled to remove any part of the surface[.]” Id. at 838, 42 S.E.2d at 50 (emphasis in

original).   

                 

                In sum, this Court does not find the cases relied upon by the district court

and the Schoenes to be applicable to the instant case. Those cases reject the notion of

implying a right to directly destroy the surface in a manner not contemplated by typical

mining methods. In contrast, the issue in this case is the express waiver of damages for

loss of surface support, which is a natural incident of any underground mining regardless

of the methodology.



                The certified question before us is whether a 1902 deed provision

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” prohibits a surface owner from pursuing a common law claim for loss of

support arising from subsidence caused by the extraction of the coal from below the

surface. We answer the question in the affirmative. 




                                              15
 
                                        B. Remedy for Injury Under 

                         The West Virginia Surface Coal Mining And Reclamation Act


                             Although the Schoenes are precluded from bringing a common law action

against McElroy for damages caused to their property by subsidence, our answer to the

first certified question does not resolve the issue whether the Schoenes may receive

compensation for their damages pursuant to the West Virginia Surface Coal Mining and

Reclamation Act, West Virginia Code §§ 22-3-1 to 22-3-38.3 This Court has succinctly

explained the Act as follows:

                             In 1977, Congress enacted the Surface Mining Control and
                             Reclamation Act to “establish a nationwide program to
                             protect society and the environment from the adverse effects
                             of surface mining operations[.]” 30 U.S.C. § 1202(a) [1977].
                             The federal Act encourages “cooperative federalism” by
                             allowing a State to adopt its own comparable program for the
                             regulation of mining. See 30 U.S.C. § 1253 [1977]. The
                             State’s “program need not be identical to the federal program,
                             as long as its provisions are at least as stringent as those
                             provided for in the federal act.” Canestraro v. Faeber, 179
                             W.Va. 793, 794, 374 S.E.2d 319, 320 (1988). West Virginia
                             adopted a comparable mining regulation program, the West
                             Virginia Surface Coal Mining and Reclamation Act, which
                             took effect in 1981. See 1980 Acts of the Legislature, ch. 87.

Huffman v. Goals Coal Co., 223 W.Va. 724, 726, 679 S.E.2d 323, 325 (2009). Although

the instant facts do not concern surface mining, but rather underground mining that

damaged the surface and buildings on the surface, the Coal Mining Act still applies. This


                                                            
              3
        This Court held in the syllabus of Rose I, in part, that the West Virginia common
law of property “has been modified to some extent by the enactment of the West Virginia
Surface Coal Mining and Reclamation Act, W.Va. Code, 22A-3-1 [1985], et seq.” 180
W.Va. at 183, 375 S.E.2d at 815.
 
                                             


                                                               16
 
Court has held that “[t]he definitions of ‘surface mine,’ ‘surface mining,’ or ‘surface-

mining operations’ contained within the West Virginia Surface Coal Mining and

Reclamation Act, W.Va. Code §22-3-1, et seq. include ‘surface impacts incident to an

underground coal mine,’ and areas ‘where such activities disturb the natural land

surface.’” Syl. Pt. 4, Antco, Inc. v. Dodge Fuel Corp., 209 W.Va. 644, 550 S.E.2d 622

(2001).



              We now turn to the second and third certified questions which we will

address together as the parties do in their briefs.

                     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)?

              (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 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?




                                              17
 
              It is McElroy’s position that the only claim authorized by the Act under the

facts of this case is for repair of land and, with regard to the residence, either repair or

compensation in the amount of diminution in value pursuant to the West Virginia Code of

State Rules §§ 38-2-16.2.c. to 38-2-16.2.c.2., which are rules promulgated pursuant to the

Act. McElroy acknowledges that West Virginia Code § 22-3-25(f) provides for a

statutory claim to recover damages where the surface owner can show a coal operator’s

violation of the Act. McElroy contends, however, that monetary damages are not

recoverable under this statute in the instant case because the Schoenes failed to show a

violation by McElroy of the Act that resulted in damage to the Schoenes. Instead, says

McElroy, the Schoenes’ injuries were caused by subsidence which is a natural

consequence of underground mining and not evidence of a violation of the Act. McElroy

further asserts that the lawsuit between the parties resulted from a disagreement regarding

the cost to repair the Schoenes’ land and residence and cannot possibly constitute a

violation of the Act. Rather, avers McElroy, the lawsuit could only result in an order to

compel McElroy to comply with the requirements of the West Virginia Code of State

Rules §§ 38-2-16.2.c. to 38-2-16.2.c.2. based on the jury’s findings of cost to repair and

diminution in value. Therefore, McElroy answers the second and third certified questions

as follows: the West Virginia Surface Coal Mining and Reclamation Act does not allow

monetary damages for the repair of a residence, the repair of land or damages for

annoyance inconvenience, aggravation, and/or loss of use of the surface owner’s

property.




                                            18
 
             The Schoenes argue that they had the authority to seek an award of

damages under West Virginia Code § 22-3-25(f). The Schoenes aver that McElroy

violated its duty under the West Virginia Code of State Rules § 38-2-16.2.c.2. to repair

the damage caused by its mining operations or, alternatively, to compensate for that

damage “by dragging its feet and obstructing the compensation process for nearly three

years.” The Schoenes assert that this conduct constitutes a violation of a rule promulgated

pursuant to the Act, therefore it falls within the scope of West Virginia Code § 22-3-

25(f). Regarding the proper measure of damages under West Virginia Code § 22-3-25(f),

the Schoenes contend that these damages should include compensation for damages to

residential property as provided for by this Court in Brooks v. City of Huntington, 234

W.Va. 607, 768 S.E.2d 97 (2014), which include the reasonable cost for repairing the

residence, even if the costs exceed the fair market value before the damage, and the

related expenses stemming from the injury, including damages for annoyance,

inconvenience, aggravation, and loss of use during the repair period.



             The issue of whether the Schoenes successfully proved in the district court

that McElroy violated a rule, order, or permit under the Coal Mining Act is not before

this Court. Accordingly, we will answer certified questions two and three by addressing

the proper remedy when a person proves a violation of a rule, order, or permit under the

Act and when they fail to prove a violation. As discussed above, subsidence is a natural

consequence of underground coal mining, and is not necessarily evidence of a violation

of the Coal Mining Act. See Keystone Bituminous Coal Assoc. v. DeBenedictis, 480 U.S.


                                            19
 
470, 474 (1987) (recognizing that “[c]oal subsidence is the lowering of strata overlying a

coal mine, including the land surface, caused by the extraction of underground coal.”).

Under the State’s Coal Mining Act, a coal operator is required to repair any material

damage to a surface owner’s property as the result of subsidence. Specifically, we held in

syllabus point four of Rose v. Oneida Coal Company (“Rose II”), 195 W.Va. 726, 466

S.E.2d 794 (1995):

                      Pursuant to the West Virginia Surface Coal Mining
              and Reclamation Act, W.Va. Code, 22A-3-14 (1985) [now
              W.Va. Code, 22-3-14 (1994)], and 30 U.S.C. § 1266 (1977)
              of the federal Surface Mining Control and Reclamation Act
              and their accompanying regulations, the operator of an
              underground mine is required to correct any material damage
              resulting from subsidence caused to surface lands, to the
              extent technologically and economically feasible by restoring
              the land to a condition capable of maintaining the value and
              reasonably foreseeable uses which it was capable of
              supporting before subsidence.

The “accompanying regulations” referred to in this syllabus point are found in the West

Virginia Code of State Rules §§ 38-2-16.2.c. to 38-2-16.2.c.2., which were promulgated

by the State Department of Environmental Protection pursuant to West Virginia Code §

22-3-14 (1994). These rules provide, in applicable part, as follows:

              16.2.c. Material Damage. Material damage in the context of
              this section and 3.12 of this rule means: any functional
              impairment of surface lands, features, structures or facilities;
              any physical change that has a significant adverse impact on
              the affected land’s capability to support current or reasonably
              foreseeable uses or causes significant loss in production or
              income; or any significant change in the condition,
              appearance or utility of any structure from its pre-subsidence
              condition. The operator shall:




                                            20
 
                             16.2.c.1. Correct any material damage resulting from
                             subsidence caused to surface lands, to the extent
                             technologically and economically feasible, by restoring the
                             land to a condition capable of maintaining the value and
                             reasonably foreseeable uses which it was capable of
                             supporting before subsidence;

                             16.2.c.2. Either correct material damage resulting from
                             subsidence caused to any structures or facilities by repairing
                             the damage or compensate the owner of such structures or
                             facilities in the full amount of the diminution in value
                             resulting from the subsidence. Repair of damage includes
                             rehabilitation, restoration, or replacement of damaged
                             structures or facilities. Compensation may be accomplished
                             by the purchase prior to mining of a non-cancelable premium-
                             prepaid insurance policy. The requirements of this paragraph
                             only apply to subsidence related damage caused by
                             underground mining activities conducted after October 24,
                             1992[.]4

(Footnote added).



                             The West Virginia Code of State Rules §§ 38-2-1 to 38-2-24.9.3 are

legislative rules.5 This Court has explained that “[a] regulation that is proposed by an

                                                            
              4
        This Court quotes the provisions that became effective July 1, 2016. Even though
the events in this case occurred while the 2011 version of the rule was in effect, the
applicable language is the same in both versions of the rule.
              5
                  The analogous federal rule is found at 30 C.F.R. § 817.121, which provides:

                             (c)(1) Repair of damage to surface lands. The permittee must
                             correct any material damage resulting from subsidence caused
                             to surface lands, to the extent technologically and
                             economically feasible, by restoring the land to a condition
                             capable of maintaining the value and reasonably foreseeable
                             uses that it was capable of supporting before subsidence
                             damage.


                                                               21
 
agency and approved by the Legislature is a ‘legislative rule’ as defined by the State

Administrative Procedures Act, W.Va. Code, 29A-1-2(d) [1982], and such a legislative

rule has the force and effect of law.” Syl. Pt. 5, Smith v. W.Va. Human Rights Comm’n,

216 W.Va. 2, 602 S.E.2d 445 (2004).



                             It is clear from these legislative rules and Rose II that a coal operator is

required to correct any material damage resulting from subsidence caused to surface

lands, to the extent technologically and economically feasible. See Rose II, 195 W.Va. at

727-28, 466 S.E.2d at 795-96, syl. pt. 4. The legislative rules also require the coal

operator to either correct material damage resulting from subsidence caused to any

structures or facilities by repairing the damage or compensate the owner of such

structures or facilities in the full amount of the diminution in value resulting from the

subsidence. We emphasize that the coal operator must perform these requirements even if

                                                                                                                                                                                                
                              (2) Repair or compensation for damage to non-commercial
                             buildings and related structures. The permittee must promptly
                             repair, or compensate the owner for, material damage
                             resulting from subsidence caused to any non-commercial
                             building or occupied residential dwelling or structure related
                             thereto that existed at the time of mining. If repair option is
                             selected, the permittee must fully rehabilitate, restore or
                             replace the damaged structure. If compensation is selected,
                             the permittee must compensate the owner of the damaged
                             structure for the full amount of the decrease in value resulting
                             from the subsidence-related damage. The permittee may
                             provide compensation by the purchase, before mining, of a
                             non-cancelable premium-prepaid insurance policy. The
                             requirements of this paragraph apply only to subsidence-
                             related damage caused by underground mining activities
                             conducted after October 24, 1992.

                                                                                             22
 
there is no proven violation of a rule, order, or permit issued pursuant to the Coal Mining

Act. Therefore, we answer certified question two as follows: assuming the surface lands

and residence of a landowner have been materially damaged from subsidence that is a

natural result of underground mining, the surface owner is limited to the remedies

provided for in the West Virginia Code of State Rules §§ 38-2-16.2.c. to 38-2-16.2.c.2.



                             This brings us to the third certified question regarding damages recoverable

under this statute. In the event that a surface owner alleges that a coal operator violated a

rule, order, or permit issued pursuant to the Coal Mining Act, the Act permits an action

for damages in West Virginia Code § 22-3-25(f) (1994).6 In this regard, this Court has

held:

                                    The West Virginia Surface Coal Mining and
                             Reclamation Act allows for a private cause of action: “Any
                             person or property who is injured through the violation by
                             any operator of any rule, order or permit issued pursuant to
                             this article may bring an action for damages, including
                             reasonable attorney and expert witness fees, in any court of
                             competent jurisdiction. . . .” W.Va. Code § 22-3-25(f) (1994).

Antco, Inc., 209 W.Va. at 646, 550 S.E.2d at 624, syl. pt. 5. In answering this certified

question, we are cognizant that “[t]he primary object in construing a statute is to ascertain
                                                            
              6
       The analogous federal provision is found at 30 U.S.C. § 1270(f) (1977), which
provides in applicable part:

                             Any person who is injured in his person or property through
                             the violation by any operator of any rule, regulation, order, or
                             permit issued pursuant to this chapter may bring an action for
                             damages (including reasonable attorney and expert witness
                             fees) only in the judicial district in which the surface coal
                             mining operation complained of is located.

                                                               23
 
and give effect to the intent of the Legislature.” Syl. Pt. 1, Smith v. State Workmen’s

Comp. Comm’r, 159 W.Va. 108, 219 S.E.2d 361 (1975). Also, “[w]here the language of a

statute is clear and without ambiguity the plain meaning is to be accepted without

resorting to the rules of interpretation.” Syl. Pt. 2, State v. Elder, 152 W.Va. 571, 165

S.E.2d 108 (1968). Moreover, “[u]ndefined words and terms used in a legislative

enactment will be given their common, ordinary and accepted meaning.” Syl. Pt. 6, in

part, State ex rel. Cohen v. Manchin, 175 W.Va. 525, 336 S.E.2d 171 (1984). Also of

relevance here is our rule that “[s]tatutes which are remedial in their very nature should

be liberally construed to effectuate their purpose.” Syl. Pt. 6, Vest v. Cobb, 138 W.Va.

660, 76 S.E.2d 885 (1953). Finally, this Court has held that “[t]he West Virginia Surface

Coal Mining and Reclamation Act, W.Va. Code § 22-3-1, et seq., is remedial legislation

that has as one of its primary purposes the protection of the public from the potentially

destructive effects that mining may have on our lands, forests and waters.” Antco, 209

W.Va. at 646, 550 S.E.2d at 624, syl. pt. 3.



              Application of these principles to West Virginia Code § 22-3-25(f) compels

us to find that the language of this statute is clear and without ambiguity so that we do not

have to resort to the rules of interpretation. Clearly, this statute permits an action for

damages when “any person or property . . . is injured through the violation by any

operator of any rule, order or permit issued pursuant to this article.” The code section

does not define the term “damages,” although it does specify that such damages may

include “reasonable attorney and expert witness fees.” Because the term “damages” is not


                                               24
 
defined in the statute, this Court will give the term its common, ordinary and accepted

meaning. We find that the term “damages” as contained in the phrase “action for

damages” in West Virginia Code § 22-3-25(f) refers to monetary compensation for an

injury to a person or property. See Black’s Law Dictionary 471 (10th ed. 2014) (defining

“damages” as “[m]oney claimed by, or ordered to be paid to, a person as compensation

for loss or injury.”). Therefore, if a surface owner proves that his or her person or

property was injured through a coal operator’s violation of a rule, order, or permit, the

surface owner can receive monetary compensation for such injury pursuant to West

Virginia Code § 22-3-25(f).



             The third certified question also asks whether a party may seek

compensation for annoyance, inconvenience, aggravation and/or loss of use. Again, we

give the term “damages” its common and ordinary meaning as set forth above. This Court

has held that “[a]nnoyance and inconvenience can be considered as elements of proof in

measuring damages for loss of use of real property.” Syl. Pt. 3, Jarrett v. Harper & Son,

Inc., 160 W.Va. 399, 235 S.E.2d 362 (1977), modified on other grounds by Brooks v. City

of Huntington, 234 W.Va. 607, 768 S.E.2d 97 (2014). Clearly, a surface owner whose

person or property is injured through a coal operator’s proven violation of the Coal

Mining Act may experience the loss of use of his or her property as a result thereof. In

such an instance, a surface owner may be compensated for annoyance and inconvenience

that is proven to have been caused by the loss of use of his or her property. In addition,

West Virginia Code § 22-3-25(f) specifically refers to injury to a “person,” which


                                           25
 
certainly contemplates something beyond mere property repairs and would encompass

annoyance and inconvenience damages. Accordingly, this Court answers part (b) of the

third certified question as follows: In an action for damages for injury to the person or

property as a result of the coal operator’s violation of a rule, order, or permit under the

Act, those damages can include compensation for annoyance and inconvenience caused

by the loss of use of property resulting from a violation of the Act.



              Therefore, based on our discussion above, we hold that a surface owner

may commence a civil action against a coal operator pursuant to West Virginia Code §

22-3-25(f) (1994), alleging that injury to the surface owner’s person or property was

caused through the coal operator’s violation of a rule, order, or permit issued under the

West Virginia Coal Mining and Reclamation Act [West Virginia Code §§ 22-3-1 to 22-3-

38]. If the surface owner proves a violation and that the violation caused the alleged

injury, the surface owner may recover monetary damages including, but not limited to,

damages for annoyance and inconvenience resulting from the violation. In the event the

surface owner is unable to prove that the coal operator violated such rule, order, or

permit, or proves the violation but fails to prove that the violation caused the alleged

injury, then the surface owner’s remedies for subsidence damage caused by a coal

operator are those provided in the West Virginia Code of State Rules §§ 38-2-16.2.c. to

38-2-16.2.c.2.




                                             26
 
                                                               C. Election of Remedies

                             The final certified question provides:

                                    (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 diminution 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?

McElroy contends that the coal operator may elect whether to correct the damage or

compensate the owner for the full amount of the diminution in value. McElroy cites the

West Virginia Code of State Rules §§ 38-2-16.2.c. and 16.2.c.2. which provide that “[t]he

operator shall . . . [e]ither correct material damage resulting from subsidence caused to

any structures or facilities . . . or compensate the owner of such structures or facilities in

the full amount[.]” According to McElroy, this language mirrors its federal counterpart

and that under our law, and to the extent needed, courts should look to federal agency

interpretations for guidance. McElroy contends that the federal Office of Surface Mining,

which first published the applicable regulations in 1979, and which provide the blueprint

for West Virginia’s program a year later, consistently has instructed that the selection of

the alternative remedies set forth in the analogous federal rule is to be given to the coal

operator. Therefore, McElroy urges this Court to follow that construction here.7

                                                            
              7
        In its brief to this Court, McElroy goes to great lengths to discern the intent of
the federal Office of Surface Mining regarding whether the surface owner or the coal

                                                                         27
 
                             The Schoenes respond that the plain language of the Coal Mining Act and

its rules never identify which party is entitled to elect between the available remedies of

compensation or repair. According to the Schoenes, this ambiguity should be resolved by

interpreting the Act broadly and liberally in favor of the Act’s stated goal of providing

surface protection for landowners when coal is mined from their property. Therefore, the

Schoenes maintain that they should decide the proper remedy under the West Virginia

Code of State Rules § 38-2-16.2.c.2.



                             We agree with the Schoenes. Despite McElroy’s argument to the contrary,

the rule is silent on the issue of whether the surface owner or the coal operator chooses

the remedy for the repair of a surface structure. Although the rule provides that “[t]he

operator shall” perform one of two actions, the rule does not indicate that the coal

operator is the party who chooses which action to perform. While “silence does not

equate to ambiguity[,]” “silence may render a statute ambiguous when the missing

subject reasonably is necessary to effectuate the provision as written.” State v. Ramos, 49

A.3d 197, 204 (Conn. 2012) (citations omitted). We find the rule at issue is ambiguous



                                                                                                                                                                                                
operator elects the remedy under the analogous federal regulation. We note that the
analogous federal regulation also does not specify which party makes the election
between compensation and/or repairs of subsidence damage. Moreover, we have based
our decision on our State regulation. As discussed above, the federal surface mining
regulations are a set of minimum standards, not maximum standards. “The State’s
program need not be identical to the federal program, as long as its provisions are at least
as stringent as those provided for in the federal act.” Huffman, 223 W.Va. at 726, 679
S.E.2d at 325 (internal quotation marks and citation omitted).

                                                                                             28
 
because it cannot be effectuated until it is determined whether the surface owner or the

coal operator chooses the remedy for a damaged surface structure.

              As set forth above, “[t]he primary object in construing a statute is to

ascertain and give effect to the intent of the Legislature.” Smith, 159 W.Va. at 108, 219

S.E.2d at 362, syl. pt. 1. The Legislature expressly set forth its intent in enacting the Coal

Mining Act as follows:

                     (1) Expand the established and effective statewide
              program to protect the public and the environment from the
              adverse effects of surface-mining operations;
                     (2) Assure that the rights of surface and mineral
              owners and other persons with legal interest in the land or
              appurtenances to land are adequately protected from such
              operations;
                     (3) Assure that surface-mining operations are not
              conducted where reclamation as required by this article is not
              feasible;
                     (4) Assure that surface-mining operations are
              conducted in a manner to adequately protect the environment;
                     (5) Assure that adequate procedures are undertaken to
              reclaim surface areas as contemporaneously as possible with
              the surface-mining operations;
                     (6) Assure that adequate procedures are provided for
              public participation where appropriate under this article;
                     (7) Assure the exercise of the full reach of state
              common law, statutory and constitutional powers for the
              protection of the public interest through effective control of
              surface-mining operations; and
                     (8) Assure that coal production essential to the nation’s
              energy requirements and to the State’s economic and social
              well-being is provided.




                                             29
 
W.Va. Code § 22-3-2(b)(1)-(8) (1994).8 Significantly, seven of the eight purposes of the

Act, as articulated by the Legislature, are to protect the public, the environment, surface

owners, and owners of minerals other than coal from the adverse effects of coal mining.

As noted above, “[t]he West Virginia Surface Coal Mining and Reclamation Act, W.Va.

Code § 22-3-1, et seq., is remedial legislation that has as one of its primary purposes the

protection of the public from the potentially destructive effects that mining may have on

our lands, forests and waters.” Antco, Inc., 209 W.Va. at 646, 550 S.E.2d at 624, syl. pt.

3. Finally, we have long held that “[s]tatutes which are remedial in their very nature

should be liberally construed to effectuate their purpose.” Vest, 138 W.Va. at 661, 76

S.E.2d at 887, syl. pt. 6.



                             Upon application of our law to the construction of the West Virginia Code

of State Rules §§ 38-2-16.2.c. to 16.2.c.2., this Court answers the fourth certified

question by finding that the surface owner elects whether the coal operator will correct

material damage resulting from subsidence to any of the surface owner’s structures or

facilities by repairing the damage, or by compensating the owner of the structures or

facilities in the full amount of the diminution in value caused by the subsidence.9 We

believe that this conclusion is consistent with a liberal construction of the Coal Mining

Act and congruous with the purposes of the Act, including the protection of surface
                                                            
              8
          This statute was amended effective June 9, 2016. However, we quote from the
version of the statute that was in effect at the time of the events in this case.
       9
         The State Department of Environmental Protection or the Legislature can
certainly amend the legislative rule to specify whether the coal operator or the surface
owner chooses the remedy.

                                                               30
 
owners. See Tatum v. Basin Resources, Inc., 141 P.3d 863, 871 (Colo. App. 2006)

(finding that “the Colorado Surface Coal Mining Reclamation Act and its associated

regulations do not confer onto a defendant found to have caused subsidence damage to a

plaintiff the power to elect which remedy to provide.” (Citation omitted.)).



              Accordingly, we hold that the West Virginia Code of State Rules §§ 38-2-

16.2.c. to 38-2-16.c.2., which were promulgated pursuant to the West Virginia Surface

Coal Mining and Reclamation Act [West Virginia Code §§ 22-3-1 to 22-3-38], provide

that when a coal operator causes subsidence damage to structures or facilities, the

operator is required to either correct the material damage caused to any structures or

facilities by repairing the damage or compensate the owner of such structures or facilities

in the full amount of the diminution in value resulting from the subsidence. The owner of

the damaged structures or facilities shall choose between the two remedies.



                                     IV. Conclusion

              For the reasons set forth above, we answer the certified questions as

follows:

              (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?



                                            31
 
Answer: Yes.

(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), and

(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”?

Answer: A surface owner may commence a civil action
against a coal operator pursuant to West Virginia Code § 22-
3-25(f) (1994) alleging that injury to the surface owner’s
person or property was caused through the coal operator’s
violation of a rule, order, or permit issued under the West
Virginia Coal Mining and Reclamation Act [West Virginia
Code §§ 22-3-1 to 22-3-38]. If the surface owner proves a
violation and that the violation caused the alleged injury, the
surface owner may recover monetary damages including, but
not limited to, damages for annoyance and inconvenience
resulting from the violation. In the event the surface owner is
unable to prove that the coal operator violated such rule,
order, or permit, or proves the violation but fails to prove that
the violation caused the alleged injury, then the surface
owner’s remedies for subsidence damage are those provided
in the West Virginia Code of State Rules §§ 38-2-16.2.c to
38-2-16.2.c.2.

      (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


                               32
 
either correct it or “compensate the owner . . . in the full
amount of the diminution in value” as a result of the mining.
See W.Va. Code R. § 38-2-16.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?

Answer: The owner of the structures or facilities chooses the
remedy.


                                            Certified Questions Answered.




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