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Schoene v. McElroy Coal Co.

ELR Citation: 46 ELR 20028
Nos. 5:13-cv-95, (N.D.W. Va., 01/29/2016) (Bailey, J.)

A district court denied mining companies' motion for summary judgment seeking to dismiss property owners' lawsuit against them for alleged subsidence damage. The coal companies, who lease the coal interests under the owners' property, engage in a mining technique known as "longwall mining," a form of underground coal mining whereby all of the coal from a broad coal face is removed in a single slice and the roof and overlying rock are then allowed to collapse into the void. The owners claimed a number of property-based damages resulting from the subsidence, including damage to the surface; damage to and depletion of natural water springs, a pond, and several wells on the property; damage to the physical structures on the property; loss of use; and loss of property value. The owners also alleged damage related to their private use and enjoyment of the property, and they sought punitive damages as well. The companies filed a motion for summary judgement, arguing that one of the companies is not a proper party. But the evidence clearly demonstrates that the company had at least some involvement with the mining activity at issue in this litigation. Nor did the owners' predecessors-in-interest expressly waive the right of support and the right to recover any common law damages resulting from a loss of support. The companies relied on a waiver of subadjacent support set forth in a 1902 deed, but such waivers are only valid insofar as the proposed activity was within the contemplation of the original parties. Here, mechanized longwall mining clearly was not the type of mining contemplated in the 1902 deed. Summary judgement was therefore denied.