The Monongalia County Coal Co. v. Weiss World ( 2019 )

J-A30038-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
THE MONONGALIA COUNTY COAL : IN THE SUPERIOR COURT OF
COMPANY : PENNSYLVANIA
:
:
v. :
:
:
WEISS WORLD, L.P. AND :
CHRISTOPHER P. WEISS, : No. 962 WDA 2018
:
Appellants. :
Appeal from the Order Entered, June 15, 2018,
in the Court of Common Pleas of Greene County,
Civil Division at No(s): AD 558-2017.
BEFORE: SHOGAN, J., KUNSELMAN, J., and STRASSBURGER*, J.
CONCURRING STATEMENT BY KUNSELMAN, J.: FILED MAY 07, 2019
I agree with the majority decision in this case. I write separately to
elaborate further on the legal rights of these parties.
Since 2013, Mon Coal has owned the coal rights under the Appellants’
109+ acre farm in Greene County. The severance deed, dated October 4,
1911, originally conveyed the coal rights to Mon Coal’s predecessor in interest,
Consolidated Coal, giving it a broad complement of mining rights. In 2016,
Mon Coal gave Appellants notice of its intent to mine the property.
In order to begin mining operations, Mon Coal needs to cross Appellant’s
property to construct an air ventilation shaft on adjacent property owned by
Mon Coal. The air shaft must be completed first and is necessary to prevent
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* Retired Senior Judge assigned to the Superior Court.
J-A30038-18
exposure to methane gas for the health and safety of the underground coal
miners. The air shaft also cannot be constructed without a sediment pond.
For over 150 years, our property laws have recognized that the holder
of the mineral rights has a dominant estate over the holder of the surface
rights. “One who has the exclusive right to mine coal upon a tract of land has
the right of possession even as against the owner of the soil, so far as it is
necessary to carry on … mining operations..” Tuner v. Reynolds, 23 Pa.
199, 206 (Pa. 1854).
As against the owner of the surface, each [purchaser of a strata
beneath the surface] would have the right, without any express
words of grant for that purpose, to go upon the surface to open a
way by shaft, or drift, or well, to his underlying estate, and to
occupy so much of the surface beyond the limits of his shaft, drift,
or well, as might be necessary to operate his estate, and to
remove the product thereof. This is a right to be exercised with
due regard to the owner of the surface, and its exercise will be
restrained within proper limits by a court of equity, if this becomes
necessary; but, subject to this limitation, it is a right growing out
of the contract of sale, the position of the stratum sold, and the
impossibility of reaching it in any other manner.
Chartiers Block Coal Co. v. Mellon, 152 Pa. 286, 296, 25 A. 597, 598
(1893).
As the majority points out, under Pennsylvania property law, the mineral
estate is the dominant estate an entrails the right to use as much surface land
as is reasonably necessary to extract minerals. Minard Run Oil Co. v. U.S.
Forest Serv. 670 F.3d 236, 243-44 (3d Cir. 2011), as amended (Mar. 7,
2012). Thus, Mon Coal, as the owner of the mineral rights here, has the right
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to use the surface land in any way it deems “reasonably necessary” to access
the coal on the property.
Notably, the parties’ relationship is not like an eminent domain action,
where a governmental entity takes private property for public use and must
give fair market value to the owner. Here, the Coal Company did not have
to give the Appellants anything for reasonable use of the surface area. It
already acquired that right when it purchased the deed to the coal rights. Mon
Col’s prior payment of $5,000 to the Appellants, in my mind, was nothing
more than a gift, an effort to be a good neighbor, if you will. As it stated in
its brief, Mon Coal entered the 2017 easement agreement for the sediment
pond and related facilities “to avoid delay involved in litigation.” Mon Coal
Brief at 7. Accordingly, contrary to Appellant’s position, the 2017 agreement
between the parties did not alter the parties’ respective property rights.
Mon Coal originally planned to use an access road to the east of
Appellants’ property to construct the air ventilation shaft. PA DEP since
determined, however, that waivers would be necessary from other property
owners in order to use the planned access road.1 Instead, Mon Coal has
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1 Pennsylvania law allows an owner of an occupied dwelling to deny mining
activities on the surface (including, for example, a ventilation shaft and access
road to the same) if such activities are to occur within 300 feet of the dwelling,
and in this manner, the operator must obtain a written waiver. 25 Pa. Code
§ 77.504 (a)(2). Where an access road is a private, “common use” access
road in existence before the applicable regulations, however, no waivers are
required. Here, no one has suggested that the 300-foot dwelling waiver
applied to the structure on the Appellants’ property that they refer to as a
“dwelling.”
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chosen to use an alternative road across the Appellant’s property. Mon Coal
proposed three different alternatives to Appellants. Appellants rejected the
first two options due to their proximity to the property’s structures. The third
alternative does not traverse near the structures. It will not interfere with the
Appellants use of the structures, and it can be constructed so that it is not
visible from the structures. Additionally, the third alternative access road will
eventually be reclaimed and removed once Mon Coal’s mining operation is
finished.
Appellants’ contention that they can block Mon Coal from using this
alternative easement to access the adjacent property for construction of the
air ventilation shaft (or seeking additional compensation for such alternative
easement) is entirely without merit. To be sure, our jurisprudence allows the
subsurface owner, in the first instance, to determine what is reasonably
necessary for its mining operation.
In my opinion, Mon Coal did not need to file this lawsuit to exercise its
rights.2 Our courts have long held that it is the burden of the surface owner
to seek legal redress to prevent or restrain the subsurface owner’s exercise of
its rights. See Chartiers, at 598 (subsurface owner’s exercise of rights “will
be restrained, within proper limits, by a court of equity if this becomes
necessary...”)
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2 I understand why Mon Coal filed the suit in effort to move its mining
operation forward and in an abundance of caution. But, as I will discuss, it
should have been Appellants’ burden to file this lawsuit.
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The majority correctly disposes of this appeal, but I believe the
Appellants should realize that they had the obligation to file a lawsuit if they
believed Mon Coal was asking for too much, not the other way around. Our
courts have long held, “It is for the surface owner to challenge the
subsurface owner’s reasonable exercise of its rights, not the
converse.” Belden & Blake Corp., v. Com., Dept. of Conservation and
Natural Resources, 969 A.2d 528, 532 (Pa. 2009) (emphasis added).
It appears that either Appellants do not want the mining operation to
take place on their property, or they are holding out for additional
compensation. In my opinion, neither is an option.
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