Buffalo Mining Co. v. Martin , 165 W. Va. 10 ( 1980 )

Harshbarger, Justice,

dissenting:

When one reads the syllabus points here, one would think this landowner prevailed in his effort to avoid having an electric line strung across his property. But such is not the case, because we have embraced an Indiana rule that effectively negates our prior cases upon the proposition that a broad grant or reservation of a right to use surface land, by the owner of mineral, does not place within the uses those that came into being years later that were not within the contemplation of the parties at the time the grant or reservation was made.

In West Virginia-Pittsburgh Coal Co. v. Strong, 129 W.Va. 832, 42 S.E.2d 46 (1947), the words conferring on a mineral grantee, rights to use the surface, were:

The severance of the coal from the remaining freehold occurred in a deed from W. H. Boyd to Bernard W. Lewis and G. B. Findley, dated May 31, 1904, which, following the conveyance of all of the coal underlying the 127.74 acre tract, contained the following provisions:

“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.

“All of the surface of the said land occupied or used by the said parties of the second part, or their assigns, above the level of the Pittsburg [sic] #8 vein of coal, for their operations herein shall be paid for before the same shall be so used, or occupied, at the rate of One Hundred Dollars per acre, and said party of the first part, his heirs or assigns shall execute and deliver a deed therefor, in fee simple, free from liens and incumbrances, when said surface shall be taken and paid for.”

Id., at 833.

The fight was about whether these words allowed the mineral owner to strip-mine part of the acreage.

We are of the opinion, arrived at by reading the instrument as a whole, that it was the manifest intention of the parties to preserve intact the surface of the entire tract, subject to the use of the owner of the coal “at convenient point or points” in order “to mine, dig, excavate and remove all of said coal” by the usual method at that time known and accepted as common practice in Brooke County. We do not believe that this included the practice known as strip mining.

Id., at 836.

And the first syllabus states:

In order for a usage or custom to affect the meaning of a contract in writing because within the contemplation of the parties thereto, it must be shown that the usage or custom was one generally followed at the time and place of the contract’s execution.

Our majority, however, displaces the intention of the parties as a controlling factor, and somehow finds that the West Virginia-Pittsburgh Coal decision was based on some subliminal, perhaps primordial, unspoken instinct of that court that it was balancing the burdens of the rights sought by the mineral owner with use of the surface by the owner thereof.

Well, English teachers seek, and find, underlying meanings in the simplest couplets; astrologists interpret the movements of the stars; and preachers of the Gospel sometimes divine from the Holy Writ, messages that few other mortals can perceive. And how this court can extract from the words, “... it was the manifest intention of the parties ...” a conclusion that the declaiming court was really balancing something, is beyond me. That will be a handy way in the future for courts to make their own contracts out of about anything that is brought before them.

We have, therefore, here, simply done away with parties’ intentions; and left what happens to them to turn upon courts’ ideas of what is best for them, balancing this or that. Justice’s Scales were never intended to be a device representing a means for courts to substitute their judgments for the clearly expressed intentions of contracting parties.

I am authorized to say that Justice McGraw agrees with this Dissent and joins me in it.