Mark A. Swartz
M. Persinger, Jr.
Crystal S. Stump Williamson, West Virginia,
Swartz & Stump, L.C. S. Michael Streib
Charleston, West Virginia Streib & Patterson
Attorneys for the Appellant Pittsburgh, Pennsylvania
Attorneys for the Appellee
JUSTICE DAVIS delivered the Opinion of the Court.
JUSTICE MAYNARD dissents and reserves the right to file a dissenting opinion.
JUSTICE ALBRIGHT concurs and reserves the right to file a concurring opinion.
1. A circuit court's
entry of summary judgment is reviewed de novo. Syllabus point
1, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994).
2. A motion for summary
judgment should be granted only when it is clear that there is no genuine
issue of fact to be tried and inquiry concerning the facts is not desirable
to clarify the application of the law. Syllabus point 3, Aetna Casualty
& Surety Co. v. Federal Insurance Co. of New York, 148 W. Va.
160, 133 S.E.2d 770 (1963).
3. A deed will be interpreted
and construed as of the date of its execution. Syllabus point 2, Oresta
v. Romano Brothers, 137 W. Va. 633, 73 S.E.2d 622 (1952).
4. A private nuisance
is a substantial and unreasonable interference with the private use and enjoyment
of another's land. Syllabus point 1, Hendricks v. Stalnaker,
181 W. Va. 31, 380 S.E.2d 198 (1989).
5. The actions or inactions
of the owner of an easement, which otherwise meet the legal definition of a nuisance, do not create a nuisance as to
the estate servient to the easement unless those actions or inactions exceed
the scope of the easement.
6. When counsel fees
and personal expenses are sought to be recovered as damages on an injunction
bond, it is incumbent on the plaintiff to show either that injunction was
the sole relief to which the suit pertained, or that the fees and expenses
were paid out solely for the purpose of procuring a dissolution of the injunction,
as distinguished from expenditures for the hearing of the principal issues
involved in the case. Syllabus point 2, State ex rel. Meadow River
Lumber Co. v. Marguerite Coal Co., 104 W. Va. 324, 140 S.E. 49 (1927).
This case involves the relocation of a sixteen-inch natural gas pipeline, owned by Columbia Natural Resources, Inc. (hereinafter CNR), defendant below and appellant, that crossed certain tracts of land through easements obtained by CNR's predecessor in interest. The instant injunction action was filed by the Appellee, Quintain Development, LLC (hereinafter Quintain), to compel CNR to relocate its pipeline at its own expense to enable Quintain to remove coal from the property by means of surface mining or mountain-top removal. (See footnote 1) The circuit court found that the deed instruments granting CNR's easement over two of the tracts required CNR to relocate its pipeline at its own expense. The circuit court additionally found that CNR's pipeline constituted a nuisance that CNR was required to abate. We conclude that two of the deed instruments did require CNR to relocate its pipeline; however, CNR was not required to pay the cost of the relocation. Moreover, because CNR did not exceed the scope of the easement authorizing its pipelines to cross the property, the existence of the pipelines pursuant to CNR's easements could not create a nuisance. For these reasons, the order of the circuit court is affirmed in part, reversed in part, and remanded.
On September 6, 1995, Quintain obtained a lease
to mine coal on the surface of the Vinson tract from Frank Newsome, Jr. and
Edra Newsome. Quintain also entered an agreement of sublease with Mingo Holding
Company, Inc., on December 6, 1995, regarding mineral rights on the Vinson
tract. This sublease granted to Quintain all of the surface mining rights
in the property that Mingo County Holding Company, Inc., had held by virtue
of its lease with Burning Springs Collieries Company. Quintain also entered
into a Lease and Sublease Agreement on December 10, 1996, with East Kentucky
Energy Corporation, which granted to Quintain the surface mining rights on
the Baach Tract. It is undisputed that Quintain knew of CNR's pipeline prior
to acquiring these leases. Evidently, Quintain has never had rights with respect
to the McCormick tract.
(See footnote 4)
Subsequently, Quintain advised Columbia Gas Transmission
of its mining plans and requested information on what pipelines might need
to be relocated to accommodate those plans. Columbia Gas Transmission referred
Quintain to CNR. Thereafter, representatives of CNR informed Quintain that
it would relocate the pipeline that impeded Quintain's mining activities if
Quintain paid for the relocation. CNR estimated the cost of relocation to
On July 25, 1997, Quintain filed a complaint against
CNR claiming that CNR was required to move its pipeline running across the
Vinson and Baach tracts
(See footnote 5) to accommodate Quintain's
planned surface mining/mountain-top removal operation. Quintain sought a declaratory
judgment determining that CNR's pipeline was wrongfully interfering with Quintain's planned mining operations and also sought injunctive
relief compelling CNR to move the pipeline at CNR's sole expense.
A hearing was held on August 4, 1997, pertaining
to Quintain's request for a preliminary injunction. At the conclusion of the
hearing, the circuit court rendered its order from the bench. The court granted
the preliminary injunction and directed CNR to relocate its pipeline at its
own expense. The circuit court also ordered Quintain to post a $100,000 injunction
footnote 6) A written order reflecting the court's bench
rulings was then entered on September 25, 1997. CNR filed an answer and counter
claim seeking to have the preliminary injunction dissolved and to receive
an award of the damages it incurred as a result of its compliance with the
(See footnote 7) Thereafter, CNR and Quintain each filed
a motion for summary judgment. The circuit court subsequently indicated that
it had decided the issues presented as a matter of law, and directed that
a trial would be had only as to damages. The case proceeded and a bench trial
was had on December 9, 1998.
Following the bench trial, the circuit court entered
its final order, dated June 26, 2000, wherein it granted summary judgment
in favor of Quintain. In that order, the circuit court announced its conclusions that, under the clear and unambiguous
language of the easements granted with respect to the Vinson and Baach tracts,
the coal estate was the dominant estate and, therefore, CNR was required to
relocate its pipeline from those two tracts at its own expense. As to all
three tracts, the circuit court balanced the benefits of the mining operation
to the local communities of Mingo and Wayne Counties with the interests asserted
by CNR and concluded that the pipeline constitute[d] a private nuisance
which CNR was required to abate at its own expense through relocation of the
V-55 pipeline. It is from this order that CNR now appeals.
The particular language upon which the circuit court
relied is identical in both deeds, and states:
It is expressly understood and agreed that the rights and privileges hereby granted shall not interfere with the proper and reasonable use of said premises for the mining and removal of coal and other minerals therefrom or the cutting and removing of timber from said premises.
CNR argues that the reservation in these deeds does not apply to surface or mountain top removal mining, while Quintain argues that the cases relied upon by CNR are distinguishable from the circumstances presented in the case sub judice. We agree with Quintain on this point.
We have previously held that [a] deed will be
interpreted and construed as of the date of its execution. Syl. pt. 2,
Oresta v. Romano Bros., 137 W. Va. 633, 73 S.E.2d 622 (1952). Moreover,
we have explained that [i]n any construction of the language of a deed
the intent of the parties is controlling. Kell v. Appalachian Power
Co., 170 W. Va. 14, 19, 289 S.E.2d 450, 456 (1982) (footnote omitted).
CNR relies on numerous cases applying these principles
to the interpretation of deeds granting the right to mine coal. In those cases,
we concluded that
The grant of a right to surface mine may be express or implied. The right to surface mine will only be implied if it is demonstrated that, at the time the deed was executed, surface mining was a known and accepted common practice in the locality where the land is located; that it is reasonably necessary for the extraction of the mineral; and that it may be exercised without any substantial burden to the surface owner.
Syl., Phillips v. Fox, 193 W. Va. 657, 458 S.E.2d 327 (1995) (emphasis added). Accord Brown v. Crozer Coal & Land Co., 144 W. Va. 296, 107 S.E.2d 777 (1959); Oresta v. Romano Brothers, 137 W. Va. 633, 73 S.E.2d 622 (1952); West Virginia-Pittsburgh Coal Co. v. Strong, 129 W. Va. 932, 42 S.E.2d 46 (1947). However, the type of cases relied upon by CNR dealt with a surface owner of land granting to another the right to interfere with the owner's enjoyment of his or her land, by virtue of mining coal. If that right were expanded to include surface mining, when that type of mining did not exist in the relevant area at the time of the execution of the deed, then the interference with the owner's ability to enjoy his or her land would have been materially different from that which the owner contemplated at the time of granting the right. Moreover, any use such a surface owner may have planned for the surface of the land, which would have been compatible with forms of mining coal that were known at the time of the execution of the deed, could very well have been rendered impossible if the general terms of such a deed were interpreted to include surface mining.
As CNR notes, however, we have also applied these
principles to restrict the owner of an easement from utilizing a technology
that did not exist at the time an indenture was executed. See Kell,
170 W. Va. 14, 289 S.E.2d 450. In Kell, this Court concluded that
a right-of-way easement granting a power company the right to cut and remove
trees did not authorize the power company to broadcast spray toxic herbicides
over the right-of- way. In reaching this conclusion, the Court considered,
inter alia, the fact that [t]he use of aerial broadcast spraying
of herbicides to control vegetation along a right-of-way was unknown in 1939
[when the indenture was executed] and could not have been within the specific
contemplation of the parties to the 1939 indenture involved in this case.
Kell, 170 W. Va. at 19, 289 S.E.2d at 456.
As with the cases involving the right to mine coal,
however, the broadcast spraying addressed in Kell involved a use of
the land that substantially changed what the owner would have been able to do with his or her land. The Kell landowner
had granted the right to the power company to cut and remove trees to maintain
its right of way. We observed in Kell the well established principal
that [t]he grantor-owner of the land retains the right to make any reasonable
use of the land subject to the easement so long as that use is not inconsistent
with the rights of the grantee. 170 W. Va. at 17, 289 S.E.2d at
453 (footnote omitted). The Court further noted that the right to make reasonable
use of land subject to such an easement included, inter alia, cultivation
of the land, the right to pass along and across the land, the taking of minerals
from the land and the construction of driveways or parking lots on the land.
Id. at 17, 289 S.E.2d at 454 (footnote omitted). The Kell Court
determined that the power company's application of toxic herbicides in a manner
that spread the dangerous chemicals over the land, in some circumstances exceeding
the boundaries of its easement, and indiscriminately killing all vegetation
within and to some degree around, the easement, exceeded what was contemplated
by the parties to the deed, and substantially impacted the landowners ability
to use and enjoy the land subject to the easement.
In the instant case, the language of the right-of-way
deeds was stated in general terms, and did not expressly reserve the right
to utilize surface mining or mountain-top removal mining methods. In interpreting
this general language, we must construe it as of the date of its execution,
and we must also attempt to give effect to the intent of the parties. It was undisputed below that surface mining and mountain
top removal mining were not known in Mingo County in 1914 when the deeds in
question were drafted. However, unlike Phillips, Kell, and other
cases relied upon by CNR, the instant case involves a use of the land reserved
by the land-owner. More importantly, and also unlike Phillips and Kell,
the type of mining utilized does not materially impact upon what was within
the contemplation of the parties at the time of the execution of the easements
in question. The landowners clearly wished to reserve for themselves the right
to remove coal from their respective properties. CNR's predecessor in interest
agreed that its pipeline would not interfere with the removal of coal. Clearly
the parties contemplated that if the pipeline interfered with the removal
of coal, it would be relocated. This fact does not change simply because the
method of mining the coal may have changed. The action which the parties contemplated,
the possibility of relocating a pipeline that interfered with the mining of
coal, remains the same. Consequently, we find that the circuit court was correct
in concluding that, under the right-of-way deeds for the Vinson and Baach
tracts, CNR was required to relocate its pipeline from those properties to
the extent it interfered with the removal of coal there.
There is one additional question that must be resolved,
however. Who should pay the cost for the relocation of the pipeline on the
Vinson and Baach tracts? Quintain argues that CNR must pay the cost under
the terms of the deeds. In this respect, Quintain refers to language contained in the deeds stating that United Fuel
Gas Company, CNR's predecessor in interest, hereby agrees to pay any
damages which may arise in the future from the maintaining, operating
and removing of said pipe line.
(See footnote 8) We are unpersuaded by Quintain's
argument. This language addresses the payment of damages sustained
from CNR's operation, maintenance, and removal of the pipeline. The language
plainly does not contemplate which party should pay the cost of the relocation
of the pipeline to facilitate coal mining on the property. The right-of-way
deeds are silent as to who should bear the cost of such relocation. Under
these circumstances, we find that Quintain should bear this cost. Quintain
knew of the existence of the pipeline when it acquired its right to mine the
property in question. Moreover, Quintain is the party who benefitted from
the pipeline's relocation. As one court observed in a similar case:
for the plaintiff to demand that the defendants pay for what is being done for its own benefit would be like asking the miller to pay the farmer for the flour he has produced from the farmer's wheat. The lowering of the defendants' pipeline can in no way increase the defendants' profits or facilitate the discharge of their function which is to transport oil in a pipe. The status quo was entirely satisfactory to them. They in no way sought a change in the existing conditions. It is the plaintiff who desires to alter the status quo for its benefit (even though, by deepening the bed of the defendants' pipeline it will be less subject to damage), and it should, therefore, be the plaintiff's obligation to pay for the achievement of its desire.
Minard Run Oil Co. v. Pennzoil Co., 419 Pa. 334, 336, 214 A.2d 234, 235 (1965). For these reasons, we find that the circuit court erred in holding CNR responsible for the costs of the relocation of its pipes under the right-of-way deeds for the Vinson and Baach tracts.
1. Relationship between Easements and Private
Nuisances. In defining a private nuisance, this Court has held that [a]
private nuisance is a substantial and unreasonable interference with the private
use and enjoyment of another's land. Syl. pt. 1, Hendricks v. Stalnaker,
181 W. Va. 31, 380 S.E.2d 198 (1989). Further elaborating on this definition,
we have explained that [a]n interference with the private use and enjoyment
of another's land is unreasonable when the gravity of the harm outweighs the social value of the activity alleged to cause the harm. Syl. pt. 2,
With respect to easements, this Court has previously stated that [a]n easement may be defined as the right one person has to use the lands of another for a specific purpose. . . . Kelly v. Rainelle Coal Co., 135 W. Va. 594, 604, 64 S.E.2d 606, 613 (1951), overruled in part on other grounds by Kimball v. Walden, 171 W. Va. 579, 301 S.E.2d 210 (1983). See also Restatement (Third) Property § 1.2(1) (2000) [a]n easement creates a nonpossessory right to enter and use land in the possession of another and obligates the possessor not to interfere with the uses authorized by the easement.). Reading the definition of a nuisance set forth above in connection with this description of an easement, it may be concluded that an easement allows a person to engage in activities on another's land that, in the absence of the easement, would be a nuisance. Indeed, the Supreme Court of Iowa has recognized that [o]ver one hundred years ago, this court held that the right to maintain a nuisance is an easement. Bormann v. Board of Supervisors, 584 N.W.2d 309, 315 (Iowa 1998) (emphasis added) (citing Churchill v. Burlington Water Co., 94 Iowa 89, 93, 62 N.W. 646, 647 (1895). Accord Black's Law Dictionary 527 (7th ed. 1999) (defining an easement as [a]n interest in land owned by another person, consisting in the right to use or control the land, or an area above or below it, for a specific limited purpose . . . . The primary recognized easements are . . . (6) a right to do some act that would otherwise amount to a nuisance . . . .) (emphasis added).
Often, however, when nuisances are discussed in connection with easements, they are described in the context of two neighboring properties, one being the dominant estate and one the servient estate, where some activity on the dominant estate may rightfully create a nuisance on the servient estate. See Bormann, 584 N.W.2d at 316 (holding that a statutory nuisance immunity provision creates an easement in the property affected by the nuisance (the servient tenement) in favor of the applicants' land (the dominant tenement)[,] . . . because the immunity allows the applicants to do acts on their own land which, were it not for the easement, would constitute a nuisance.) (emphasis added). See also Restatement of Property § 451, at 2912 (1944) (commenting that the owner of an affirmative easement may be entitled to do acts on his own land which, were it not for the easement, would constitute a nuisance.).
In circumstances where, as here, an easement authorizes
activity to be engaged in upon the servient property, it is generally
considered that the easement authorizes a trespass. See Restatement
of Property § 451, at 2911-12 (providing that [a]n affirmative
easement entitles the owner thereof to use the land subject to the easement
by doing acts which, were it not for the easement, he would not be privileged
to do, and commenting that [i]n many cases, the use an owner of
an affirmative easement is entitled to make enables him to intrude upon the
land subject to the easement in ways which, were it not for the easement,
would make him a trespasser upon the land.). Nevertheless, questions related to the existence of a nuisance have arisen in connection
with this type of easement where it is claimed that the owner of the easement
has exceeded its scope.
In Westchester Associates, Inc. v. Boston Edison
Co., the owner of an office building situated on land over which Boston
Edison possessed an easement authorizing the construction and use of power
lines complained that magnetic fields generated by the power lines created
a nuisance. 47 Mass. App. Ct. 133, 712 N.E.2d 1145 (1999). The Appeals
Court of Massachusetts observed that [a] nuisance may result from an
overly intensive use or an overburdening of an easement. Id.
at 135, 712 N.E.2d at 1148. The court then considered Edison's use of the
easement and concluded that Edison had not created a nuisance. In this regard,
the court stated [Edison's] use of the easement is of the same 'amount
and character' as authorized . . . and we agree with the
carefully crafted opinion of the Superior Court judge that Edison's use is
reasonable, as [a] matter of law. Id. at 136-37, 712 N.E.2d at
1149. (internal citation omitted) (footnote omitted).
Similarly, in City of Columbia v. Lentz,
the Court of Appeals of Tennessee addressed the issue of whether a city sewage
drain that crossed the plaintiffs' farm and emptied into a creek running along
side the farm had caused a nuisance. 39 Tenn. App. 350, 282 S.W.2d 787 (1955).
The plaintiffs complained that the sewer overflowed causing raw sewage to
accumulate on their land, and that the quantity of sewage released into the creek had so polluted it that their livestock would not drink the water.
The city argued that its sewage drain could not cause a nuisance as the plaintiffs'
predecessors in title had executed two deeds conveying easements to the city
that allowed the sewer to cross the land and empty into the creek.
The Tennessee court observed that over the years following the installation of the sewage drain, the area served by the sewer had grown. In response to this growth, the city had allowed new residents and business owners to tap into the sewer line. The additional use caused such an increase in the flow of sewage that in times of freshets or rises in the creek the sewage would back up in the pipe line, run through the top of the manholes, overflow parts of plaintiffs' field, and large quantities of offal and filth would be left there, in the creek, and along its banks. City of Columbia at 356, 282 S.W.2d at 790. The court further observed that, in an effort to relieve the pressure in the sewer line, the city made an additional outlet for the sewer at the southern edge of plaintiffs' farm and constructed a backflow line running from the manhole there back to the creek, emptying sewage into the creek at the southern side of the farm. Id. Ultimately, the court concluded that the city had, indeed, utilized the sewer line in such a way as to create a nuisance. In reaching this conclusion, the court acknowledged the existence of the easements authorizing the sewer line, but explained that the city's use of the sewer line had exceeded the scope of those easements. In this regard, the court stated:
there is nothing in either of these deeds giving the
city the right to empty the sewage at the south or second outlet, or at any
other point in the stream above the original outlet at the north side of the
farm. Nor is there anything in either of the deeds which authorized the city
to overflow the sewage through the manholes and upon this bottom field.
Id. at 358, 282 S.W.2d at 791. See also Indiana Michigan Power Co. v. Runge, 717 N.E.2d 216, 228-29 (Ind. Ct. App. 1999) (finding that summary judgment as to nuisance claim was precluded, in part, by question of fact as to whether electrical and magnetic fields emitting from power lines traversing power company easement exceeded scope of easement); M & D, Inc. v. McConkey, 226 Mich. App. 801, 573 N.W.2d 281 (1997) (finding that department of transportation had acquired a prescriptive easement in a drain over the plaintiffs' property and that such drain did not constitute a nuisance as the department of transportation constructed the drain in 1972 and had not altered it since), vacated by court order and reinstated in part by M & D, Inc. v. W.B. McConkey, 231 Mich. App. 22, 585 N.W.2d 33 (1998).
Based upon the foregoing, we hold that the actions
or inactions of the owner of an easement, which otherwise meet the legal definition
of a nuisance, do not create a nuisance as to the estate servient to the easement
unless those actions or inactions exceed the scope of the easement. Cf
Syl. pt. 1, Hoffman v. Smith, 172 W. Va. 698, 310 S.E.2d 216
(1983) (Where one acquires an easement over the property of another
by an express grant, the use of that easement must be confined to the terms and purposes
of the grant.); Syl. pt. 2, Lowe v. Guyan Eagle Coals, Inc.,
166 W. Va. 265, 273 S.E.2d 91 (1980) (No use may be made of a right-of-way
different from that established at the time of its creation so as to burden
the servient estate to a greater extent than was contemplated at the time
of the grant.).
2. Application of Rule to the Instant Dispute.
In this case, Quintain argues that CNR created a nuisance, not by any positive
act, but by refusing to relocate its gas line and thereby preventing Quintain
from mining the property in question. In order to establish that CNR's refusal
constituted a nuisance, Quintain is required to establish that, under the
terms of the relevant easements, CNR was obligated to move its lines and it
refused to do so. We find that Quintain has failed to meet this burden.
(a) The McCormick Tract. The language contained
in the condemnation deed granting CNR's easement over the McCormick tract
included no language whatsoever requiring CNR to relocate its pipelines to
facilitate the mining of coal. Consequently, as a matter of law, CNR's refusal
to relocate that portion of its pipeline located on the McCormick tract did
not exceed the easement and, thus, does not constitute a nuisance. The circuit
court erred in granting summary judgment to Quintain on this issue. Furthermore,
because the nuisance theory was the sole basis for the circuit court's injunction as to the McCormick tract, the injunction is dissolved as to
(b) The Vinson and Baach Tracts. We have
determined, on the other hand, that the language of the right of way deeds
over the Vinson and Baach tracts does require CNR to relocate its pipeline
to facilitate mining. The record is clear, however, that from the outset CNR
was willing to relocate its pipeline, if Quintain would bear the cost. We
have also determined in this opinion that, under the Vinson and Baach deeds,
CNR was not required to bear the financial burden of relocating its pipeline
from those tracts. Consequently, Quintain cannot show that CNR exceeded the
scope of the Vinson or Baach easements merely by its refusal to pay for the
Because CNR's actions did not exceed the scope of
its easements over the Vinson and Baach tracts, those actions do not constitute
a nuisance. The circuit court erred in granting summary judgment to Quintain
in this regard. While we reverse the circuit court's ruling that CNR's inaction
created a nuisance on the Vinson and Baach tracts, we note that our ruling
has no practical impact with respect to those tracts as we have heretofore
determined, based upon the language contained in the Vinson and Baach right-of-way
deeds, that the injunction should not be dissolved as it related to those
tracts of land.
With respect to the McCormick tract, we reverse
the circuit court's ruling that CNR's refusal to relocate the pipeline constituted
a nuisance. Thus, the injunction is dissolved as it relates to the McCormick
tract and CNR is entitled to its damages in this regard. Accordingly, this
case is remanded for the entry of summary judgment in CNR's favor as to the
The said grantors, their heirs and assigns, to fully
use and enjoy the said premises, except for the purposes hereinbefore granted
to the said United Fuel Gas Company, a corporation, which hereby agrees to
pay any damages which may hereafter arise from the laying, maintaining,
operating and removing said pipe line . . . .
In an action on an injunction
bond, counsel fees and expenses expended in resisting the issuing of a preliminary
writ of injunction are not damages sustained from the issuance of the writ;
and are therefore not in the condition of the bond, and cannot be taken into
account in determining the amount of damages that are caused by it.
Syl. pt. 1, State ex rel. Meadow River Lumber Co. v. Marguerite Coal Co., 104 W. Va. 324, 140 S.E. 49 (1927).