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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA September 2001 Term

FILED
November 9, 2001
RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA

RELEASED
November 9, 2001

No. 29163

RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA

QUINTAIN DEVELOPMENT, LLC,
A LIMITED LIABILITY COMPANY
ORGANIZED TO DO BUSINESS IN THE STATE OF WEST VIRGINIA,
Plaintiff Below, Appellee,


V.

COLUMBIA NATURAL RESOURCES, INC.,
A TEXAS CORPORATION
AUTHORIZED TO DO BUSINESS IN THE STATE OF WEST VIRGINIA,
Defendant Below, Appellant.


Appeal from the Circuit Court of Mingo County
Honorable Michael Thornsbury, Judge
Civil Action No. 97-C-307
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.


Submitted: September 5, 2001 Filed: November 9, 2001 Mark A. Swartz Crystal S. Stump Swartz & Stump, L.C. Charleston, West Virginia Attorneys for the Appellant Howard M. Persinger, Jr. Williamson, West Virginia, S. Michael Streib Streib & Patterson 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.


SYLLABUS BY THE COURT


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.

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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).

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Davis, Justice: 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.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.

There were actually two CNR natural-gas pipelines traversing the property in question, a ten-inch pipeline and the sixteen-inch pipeline at issue herein. The parties reached an agreement as to the relocation of the ten-inch pipeline, thus only the question of the relocation of the sixteen-inch line was litigated.
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I. FACTUAL AND PROCEDURAL HISTORY The following facts are not disputed by the parties. CNR's predecessor-ininterest, United Fuel Gas Company, obtained easements over the three tracts of land in question, the Vinson, Baach, and McCormick tracts, in 1914, for the placement of a V-55 sixteen inch gas pipeline. The easement over the McCormick tract was obtained by United Fuel through condemnation. Easements over the Vinson and Baach tracts were granted to United Fuel by the surface and coal owners of those tracts.2 The easements over the Vinson and Baach tracts both contained the following reservation: "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." In addition, the two easements contained very similar provisions related to damages. This provision in the Vinson

There does appear to be some confusion over which tracts of land are actually involved in this dispute. While the Baach tract was addressed in the circuit court's final order, CNR asserts that prior to its relocation to an agreed position, the pipeline was not present on the Baach tract. According to CNR, the relocated pipeline now crosses some portion of the Baach tract. In addition, CNR asserts that Quintain admits that it possesses no right to surface mine the McCormick tract. According to Quintain, the circuit court clarified any confusion regarding the affected properties when it stated during the preliminary injunction hearing: "It is clear that the parties' maps place the McCormick Tract in different locations. Frankly, it doesn't make a great deal of sense to issue an injunction and require [CNR] to remove a portion of line from the Vinson Tract and not to affect the McCormick Tract. . . ." Our resolution of this dispute, however, does not require us to determine precisely which tracts of land are involved. Because the circuit court addressed all three tracts in its final order, we will likewise address all three tracts in this opinion.
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easement stated: The said grantors, their heirs or 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 arise in the future from the maintaining, operating and removing of said pipe line . . . . (Emphasis added).3 The condemnation easement over the McCormick tract contained no reservations or limitations.

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

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The similar language contained in the Baach deed stated:

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 . . . . (Emphasis added).
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CNR's pipeline prior to acquiring these leases. Evidently, Quintain has never had rights with respect to the McCormick tract.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 be $377,627.00.

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 tracts5 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.

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See supra note 2.

Although the complaint identifies the Vinson and Baach tracts, CNR asserts that its pipeline did not cross the Baach tract at the time of the filing of the complaint. The pipeline has now been relocated to an agreed location that does cross the Baach tract. The complaint did not include any claims with regard to the McCormick tract. That tract was apparently added to the dispute during the course of the litigation.
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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 bond.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 injunction.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
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By order entered on December 8, 1998, the bond was increased to

$386,518.21. According to the circuit court's final order, the evidence presented at trial demonstrated that CNR completed its relocation of the pipeline by December 1, 1997.
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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.

II. STANDARD OF REVIEW The instant case was resolved by the granting of summary judgment in favor of Quintain. We have consistently stated that "[a] circuit court's entry of summary judgment is reviewed de novo." Syl. pt. 1, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994). In exercising our de novo review, we must be mindful that "[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." Syl. pt. 3, Aetna Cas. & Sur. Co. v. Federal Ins. Co. of New York, 148 W. Va. 160, 133 S.E.2d 770 (1963).

III. DISCUSSION A. Relocation of CNR's Pipeline Under Vinson and Baach Deeds The circuit court concluded that certain language contained in the two deeds granting easements over the Vinson and Baach tracts clearly established that the parties to the
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two deeds intended the coal estate to be the dominant estate. Based upon this conclusion, the circuit court granted the injunction directing CNR to relocate its pipeline at its own expense.

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

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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
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executed. See Kell, 170 W. Va. 14, 289 S.E.2d 450. In Kell, this Court concluded that a rightof-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
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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
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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."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

This language is taken from the Vinson deed. For similar language from the Baach deed, see supra note 3.
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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.

B. Easement as a Private Nuisance The circuit court concluded that CNR's pipeline across the Vinson, Baach and McCormick tracts constituted a private nuisance. CNR contends that, because its pipeline was laid pursuant to express easements and was a reasonable use of the land, it does not fit the definition of a private nuisance. Quintain, on the other hand, argues that the circuit court applied a balancing test and determined that the benefits to the local communities from Quintain's mining operation outweighed CNR's interests, thus CNR's refusal to relocate the pipeline at its own expense created a nuisance. To determine whether the circuit court was correct in its conclusion, we must examine the relationship between nuisances and easements.

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
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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, id.

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

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