Present: All the Justices 

LEVISA COAL COMPANY 

 OPINION BY 

v. Record No. 070580 JUSTICE LAWRENCE L. KOONTZ, JR. 

 June 6, 2008 

CONSOLIDATION COAL COMPANY 

FROM THE CIRCUIT COURT OF BUCHANAN COUNTY 

Keary R. Williams, Judge 

This appeal arises from a dispute between the owner of a 

solid mineral estate subject to a long-term mining lease and a 

third party. The dispute involves the storage of wastewater 

from the third party’s mining operations on other lands in a 

particular mine located within the subject leasehold but with 

the lessee’s permission. The owner of the solid mineral estate 

sought an injunction and declaratory judgment to prevent the 

third party from using the mine, which had been idled by the 

lessee, as a wastewater storage pit. We consider whether the 

circuit court erred in adjudicating that the third party “has a 

right to store excess water” from its mine in the mine in 

question and in denying the requested injunctive relief. 

BACKGROUND 

In 1937, Levisa Coal Corporation, the predecessor in 

interest to Levisa Coal Company, the plaintiff-appellant herein, 

acquired by severance deed the solid mineral estate and timber 

rights on various parcels of land in Buchanan County (“the 
Buchanan County parcels”).1 The severance deed conveyed to 

Levisa Coal ownership of “the coal, metals and timber, together 

with all the rights, privileges and easements incident thereto, 

in, on or under” the lands described in the deed. However, the 

severance deed did not expressly convey to Levisa Coal the right 

to use any part of the estate conveyed or the attendant 

easements to support mining activities on other lands. By a 

separate and subsequent severance deed, the rights to the oil 

and gaseous mineral estates of the Buchanan County parcels were 

conveyed to another party. Levisa Coal later acquired an 

interest in these estates through an oil, gas and coalbed 

methane lease. 

In 1956, Levisa Coal entered into a lease with Island Creek 

Coal Company (Island Creek Coal) granting that company “the sole 

and exclusive right and privilege of mining and removing all of 

the coal from all the seams underlying the Tiller [V]ein or seam 

of coal or the horizon of such seam” in and upon the Buchanan 

County parcels conveyed by the 1937 deed.2 The 1956 lease 

 

1

 Because, for purposes of this appeal, there is no 

significant distinction between these two entities, we will 

refer to the owner of the solid mineral estate as “Levisa Coal” 

without distinction as to whether the reference is to the 

current owner or its predecessor in interest. 

2

 The “Tiller Vein” refers to a particular deep-lying coal 

seam that has been identified by that name in geological surveys 

of western Virginia for at least the last ninety years. See, 

2
further provided Island Creek Coal with the right “generally, to 

make any use of the leased premises which [Island Creek Coal] 

may deem needful or convenient in carrying on its mining or 

other operations.” Among the specific uses permitted was the 

right to “dump water or refuse on said premises.” These rights, 

however, were “limited to such rights as [Levisa Coal] owns and 

has the right to lease,” and the lease did not expressly purport 

to convey any right to use the leasehold for the support of 

mining operations on other lands. 

Under the 1956 lease, Levisa Coal retained certain rights 

to the ownership and continued use of its solid mineral estate 

below the Tiller Vein and to easements serving Island Creek 

Coal’s leasehold. As relevant to this appeal, Levisa Coal 

retained “[t]he entire ownership and control of all the leased 

premises, and the coal . . . and other minerals and products 

therein and thereon, for all purposes (except those hereinbefore 

expressly set forth as leased to [Island Creek Coal]).” 

Additional express rights reserved to Levisa Coal included “the 

right and privilege of draining water . . . over, across, or 

through the leased premises,” as well as “the right and 

privilege of searching for oil, gas, or any other minerals or 

products and removing same when and wherever found.” In 

 

e.g., H. Hinds, The Geology and Coal Resources of Buchanan 

3
furtherance of these rights, the lease provided that Levisa Coal 

could make excavations and bore “slopes, shafts, drifts, 

tunnels, and wells” so long as these operations did not 

interfere with Island Creek Coal’s right under the 1956 lease to 

remove coal from below the Tiller Vein. Levisa Coal also 

retained a right of inspection within Island Creek Coal’s works 

and mines to assure compliance with an agreed upon mining plan 

and calculation of royalties due under the lease and “to use 

freely the means of access to the said works and mines without 

hindrance or molestation” consistent with its rights under the 

1937 deed. 

The initial term of the 1956 lease was for five years with 

the lease automatically renewing for successive terms of twenty 

years so long as Island Creek Coal fulfilled its obligation to 

mine coal on the property and pay royalties to Levisa Coal, or 

in lieu thereof to make minimum payments to Levisa Coal for the 

lost opportunity if coal was not being mined. At issue in this 

appeal is a mine designated by Island Creek Coal as the “VP3 

Mine,” which was opened on land subject to the 1956 lease in 

1968. Although Island Creek Coal suspended its mining 

operations at the VP3 Mine in 1998, Levisa Coal does not contend 

that Island Creek Coal has failed to pay royalties or fulfill 

 

County, Virginia, Bulletin XVIII (VA Geol. Survey 1918). 

4
its other obligations under the lease and, thus, under its terms 

the lease remains in force until at least 2021. Moreover, 

Levisa Coal, through its managing general partner John C. Irvin, 

conceded during the proceedings of this case that it is not 

presently economically feasible to resume coal mining operations 

at the VP3 Mine. 

In 1993, CONSOL, Inc. (CONSOL), a subsidiary of CONSOL 

Energy, Inc., acquired Island Creek Coal and all of its assets, 

including the rights and obligations of the 1956 lease. CONSOL 

has maintained Island Creek Coal as a separate corporate entity, 

although Island Creek Coal no longer has any active mining 

operations or employees and its corporate officers are also 

officers or employees of CONSOL or its subsidiaries. CONSOL is 

also the parent company of Consolidation Coal Company 

(Consolidation Coal), the defendant-appellee herein. 

Consolidation Coal maintains a coal mining operation, designated 

as the “Buchanan Mine” or “Buchanan No. 1 Mine” in the vicinity 

of Island Creek Coal’s VP3 Mine as well as other idled mines 

once operated by Island Creek Coal. 

Excess ground water naturally flowing into any deep mine as 

a result of mining operations hampers extraction of coal. Mine 

operators routinely remove such excess water or wastewater on a 

daily basis. The removal of excess water in the Buchanan Mine, 

as well as the excess water in the VP3 Mine, was initially 

5
accomplished by pumping that water directly into the nearby 

Levisa River or one of its tributaries. At some point after the 

acquisition of Island Creek Coal by CONSOL, it became necessary 

for Consolidation Coal to devise an alternate drainage system 

for the removal of excess water naturally flowing into its 

Buchanan Mine and the additional water released into that mine 

as a result of its continuing mining operations there. In 

general terms, the drainage system devised by Consolidation Coal 

involved pumping the excess water from the Buchanan Mine into a 

series of nearby idled mines once operated by Island Creek Coal 

which functioned as storage pits for the water until the water 

could be pumped into the Levisa River. Ultimately, this 

drainage system was designed to include the idled VP3 Mine. The 

rate of discharge of the wastewater into the river was to be 

limited from time to time so that the Levisa River could 

accommodate the increased water flow resulting from this 

discharge. 

Ultimately, the chloride content of the anticipated 

discharged water into the Levisa River became an issue to be 

resolved in order for Consolidation Coal to comply with certain 

water standards established by the State Water Control Board and 

to obtain the necessary permits to allow it to continue to pump 

mine water into the Levisa River. Consolidation Coal applied to 

the Virginia Department of Mines, Minerals, and Energy (DMME) 

6
for permits to discharge wastewater from the Buchanan Mine into 

idled mines under Island Creek Coal’s control, including the VP3 

Mine, and ultimately into the Levisa River in accord with its 

designed drainage system.3 Subsequently, Consolidation Coal 

began discharging wastewater into the “Beatrice” and “VP1” mines 

and, when these mines could not accommodate additional water, 

the discharge was diverted to the VP3 Mine. The present rate of 

wastewater discharge from the Buchanan Mine into the VP3 Mine is 

nearly 2,500 gallons per minute. The VP3 Mine has a capacity to 

hold approximately 6.4 billion gallons of wastewater. 

On July 10, 2006, Levisa Coal filed a complaint for 

injunctive relief and declaratory judgment against Consolidation 

Coal in the Circuit Court of Buchanan County seeking to prohibit 

Consolidation Coal from continuing to divert wastewater from the 

Buchanan Mine to the VP3 Mine. In seeking temporary and 

permanent injunctive relief, Levisa Coal maintained that “[t]he 

proposed pumping and storage of Buchanan Mine water in Levisa 

[Coal]’s properties will cause irreparable harm to Levisa 

[Coal]’s property and business interests.” Specifically, Levisa 

Coal maintained that storing water in the VP3 Mine would result 

 

3

 According to statements in the record, Levisa Coal, by 

separate litigation, challenged the issuing of a permit by DMME 

to allow discharge of water into the VP3 Mine. The record does 

not disclose the current status or result of that litigation. 

7
in absorption of coal bed methane gas and, with regard to the 

remaining coal in the property, would “vastly increase the costs 

that will be required in order to safely access and mine the 

coal in the future, effectively making it unminable.” Levisa 

Coal further maintained that it had no adequate remedy at law to 

redress these alleged injuries. 

Levisa Coal premised its action for declaratory judgment on 

the assertion that Consolidation Coal “lacks the legal right to 

pump and store its Buchanan Mine water in the [VP3 Mine].” It 

sought a declaration that Consolidation Coal “has no right to 

utilize Levisa [Coal]’s subject properties for temporary or 

permanent storage of Buchanan Mine water, and for judgment 

adjudicating all other issues expressly or inferentially 

raised.” 

On August 4, 2006, Consolidation Coal filed an omnibus 

response to the complaint, supported by an accompanying 

memorandum of law, asserting a demurrer, special plea in bar, 

answer and affirmative defenses. As relevant to this appeal, 

Consolidation Coal maintained that it had a legal right to 

discharge wastewater into the VP3 Mine because Island Creek 

Coal, consistent with its purported rights under the 1956 lease, 

had agreed to permit Consolidation Coal to discharge the water 

into the VP3 mine. Consolidation Coal further maintained that 

Levisa Coal was not entitled to seek an injunction as it was not 

8
suffering any harm from the discharge of water into Island Creek 

Coal’s leasehold, or, in the alternative, even if Levisa Coal 

were being injured by that action, it had an adequate remedy at 

law in the form of seeking monetary damages now or in the 

future. 

The parties engaged in a lengthy period of discovery before 

Levisa Coal sought a hearing to request entry of a preliminary 

injunction. The circuit court conducted an ore tenus hearing on 

the request for a preliminary injunction on November 15 and 16, 

2006. At that hearing, Levisa Coal took the position that, 

despite any agreement between Consolidation Coal and Island 

Creek Coal by which Island Creek Coal would purportedly accept 

responsibility for the dumping of water into the VP3 Mine, “it 

is Consolidation Coal Company that is doing it.” Levisa Coal 

maintained that the 1956 Lease provided Island Creek Coal with 

the right to mine coal, but provided no right for Island Creek 

Coal to permit Consolidation Coal to put water into the mine. 

In response, Consolidation Coal took the position that it 

was Island Creek Coal, not Consolidation Coal, that was actually 

putting water into the VP3 Mine and that Island Creek Coal was 

doing so in a manner consistent with its rights under the 1956 

lease. Consolidation Coal noted that even prior to the 

acquisition of Island Creek Coal by CONSOL, the two companies 

had cooperated in their respective mining efforts in the region. 

9
Consolidation Coal maintained that both companies had benefited 

from, and continued to benefit from, arrangements whereby mining 

operations on the lands and leaseholds of one were supported by 

activities on the lands and leaseholds of the other. In this 

context, Consolidation Coal asserted that Island Creek Coal’s 

storage of the Buchanan Mine water in the VP3 Mine was a “use of 

the leased premises which [Island Creek Coal] may deem needful 

or convenient in carrying on its mining or other operations” as 

contemplated by the 1956 lease. 

Consolidation Coal further contended that even if it, and 

not Island Creek Coal, were deemed to be the party responsible 

for the inundation of the VP3 Mine, it was doing so only within 

the voids, tunnels and shafts created in Island Creek Coal’s 

leasehold below the Tiller Vein and, thus, in an area over which 

Levisa Coal had no current possessory interest. Thus, 

Consolidation Coal contended that Levisa Coal did not have 

standing to seek any relief against Consolidation Coal. 

Moreover, assuming that Levisa Coal had such standing, to the 

extent that it might suffer some damage to its interest in the 

gaseous mineral estate, which Consolidation Coal did not 

concede, Consolidation Coal maintained that such damage was a 

quantifiable harm for which Levisa Coal could seek a monetary 

award at law. As to any other damages Levisa Coal might suffer 

as a result of impairment of its retained rights under the 1956 

10
lease, Consolidation Coal maintained that these damages were 

“speculative” because the VP3 Mine was currently idle and there 

was no prospect of it being reopened for coal production or any 

other purpose. Thus, Consolidation Coal maintained that Levisa 

Coal could not establish irreparable harm for which injunctive 

relief should be granted. 

Levisa Coal introduced evidence through testimony from 

Irvin, from Gerald Ramsey, a former employee of Island Creek 

Coal now employed by CONSOL Energy, from Andrew Cecil, a mining 

engineer, and from Charles Earl Ellis, a former employee of 

Island Creek Coal now working as an independent consultant who 

was qualified as an expert on business operations in the mining 

industry. We need not recount the substance of this testimony 

in detail, it being sufficient to say that Irvin, Ramsey and 

Ellis confirmed the history of the VP3 Mine and the relationship 

between Island Creek Coal and Consolidation Coal as related 

above. Additionally, Irvin testified concerning Levisa Coal’s 

interest in the production of coal bed methane gas on the 

Buchanan County parcels. 

Cecil’s testimony provided support for Levisa Coal’s 

contention that inundation of the voids, tunnels and shafts in 

the VP3 Mine would significantly impair the coal reserves of 

Levisa Coal in that portion of its estate and the adjoining 

strata. Cecil opined, for example, that water in the VP3 Mine 

11
would be absorbed into the sandstone and shale layers above and 

below the coal seam, creating “issues” for the stability of the 

roof and floor of the mine, affecting the use of the mine 

tunnels and shafts for future access to the coal reserves in the 

strata below the Tiller Vein as well as increasing the cost of 

mining those reserves. 

Levisa Coal also sought to introduce evidence of the 

potential damage to the gaseous mineral estate of the Buchanan 

County parcels in the form of an affidavit prepared by Timothy 

L. Hower. Levisa Coal contended that Hower was unavailable to 

testify in person because he was outside the United States on 

other business. Levisa Coal averred that it had attempted to 

make Hower available for cross-examination by deposition or by 

having the hearing conducted on a date when he would have been 

available, but contended that Consolidation Coal had “refused” 

to take Hower’s deposition and implied that other difficulties 

with the discovery process had delayed the hearing until Hower 

was unavailable. Consolidation Coal responded that its 

objection was not merely that Hower was unavailable for crossexamination, but because the substance of his opinion as 

outlined in the affidavit was “speculative.” The circuit court 

indicated that it would not “rul[e] on the substance of the 

affidavit,” but that it would nonetheless exclude it from 

evidence because “it is patently unfair to allow this witness to 

12
testify by affidavit without giving defendant’s counsel the 

opportunity to cross examine.” 

Following the circuit court’s ruling excluding Hower’s 

affidavit, Levisa Coal rested its case in chief. Consolidation 

Coal then moved to strike Levisa Coal’s evidence, contending 

that Levisa Coal had failed to establish that it would suffer 

any irreparable harm if the temporary injunction were not 

granted. This was so, Consolidation Coal maintained, both 

because the injury from the alleged trespass was merely 

speculative and, if actual, could be redressed by monetary 

damages awarded at law. 

In addressing the motion to strike Levisa Coal’s evidence, 

the circuit court stated that in its view the principal claim 

made by Levisa Coal with respect to the harm it would suffer 

from the inundation of the VP3 Mine was to “its coal and gas 

estate, although it is contested that it has a gas estate . . . 

there is some evidence here where the Court may conclude as 

much.” The court concluded, however, that any damages to Levisa 

Coal’s interests were quantifiable and, thus, it “has an 

adequate remedy at law if it in any way lost its coal estate, 

. . . gas or coal bed methane estate.” The court further 

concluded that granting the preliminary injunction could result 

in “astronomical” harm to Consolidation Coal in that it possibly 

would be required to suspend operations at the Buchanan Mine. 

13
Accordingly, the court ruled that Levisa Coal had not met its 

evidentiary burden for obtaining a preliminary injunction. 

The circuit court then ruled that the provision in the 1956 

lease that granted to Island Creek Coal “use of the leased 

premises which lessee may deem needful or convenient in carrying 

out its mining operations or other operations” was “about as 

broad and expansive as we might imagine.” Applying that 

interpretation of the lease, the court ruled that with respect 

to the declaratory judgment Consolidation Coal “has the right to 

place any kind of storage water in the [VP3] [M]ine.” 

Accordingly, the court indicated that it did not need to hear 

evidence from Consolidation Coal’s witnesses and directed 

counsel for Consolidation Coal to draft an order reflecting the 

court’s rulings. 

On December 13, 2006, counsel for Consolidation Coal 

submitted a draft order adopting by reference the circuit 

court’s summation at the conclusion of the hearing and, in 

addressing the court’s ruling on the declaratory judgment issue, 

reflecting that Levisa Coal had “requested in this hearing that 

the Court construe the November 16, 1956 Lease, and the rights 

imparted therein.” On December 20, 2006, counsel for Levisa 

Coal submitted a lengthy set of written objections to the 

court’s anticipated rulings as reflected in the court’s 

summation and the draft order. 

14
On December 22, 2006, the circuit court entered a separate 

order, which simplified the language of the draft order 

submitted by Consolidation Coal, but in substance reflected the 

court’s rulings on Levisa Coal’s requests for a preliminary 

injunction and declaratory relief. On the latter issue, the 

court expressly ruled that Consolidation Coal “has the right to 

store excess water from the Buchanan No. 1 [Mine] in the VP3 

Mine.” Although the draft order had not done so, the court’s 

order further provided that it was a final order “resolving all 

issues between the parties.” Pursuant to Rule 1:13, the order 

was entered without endorsement of counsel “with the 

understanding that all objections the Parties have stated in the 

record are hereby preserved” including Levisa Coal’s written 

objections submitted on December 20, 2006. We awarded Levisa 

Coal this appeal.

DISCUSSION 

Levisa Coal has asserted 12 assignments of error to a 

number of aspects of the circuit court’s conduct of the hearing 

held in this case and its final judgment. However, given the 

procedural posture of this case, we are of opinion that we need 

not address all of these assignments of error. As we have 

previously noted, the hearing was noticed on Levisa Coal’s 

request for a temporary injunction. The circuit court ruled on 

the merits of the request for a declaratory judgment and denied 

15
injunctive relief after sustaining Consolidation Coal’s motion 

to strike the evidence at the conclusion of Levisa Coal’s 

evidence in chief. Accordingly, the resolution of Levisa Coal’s 

appeal rests principally upon two issues.4 First, we will 

consider whether the circuit court correctly construed the 1956 

lease as providing Island Creek Coal, and, by extension, 

Consolidation Coal through Island Creek Coal’s permission, with 

 

4

 While the petition for appeal in this case was under 

review, Consolidation Coal filed a motion to dismiss the 

petition for appeal and a renewed motion to dismiss. In those 

motions, Consolidation Coal contends that because the ruling on 

the declaratory judgment had been made at Levisa Coal’s request, 

as recited in the circuit court’s order, and Levisa Coal had not 

then sought a reconsideration of that ruling, it is barred from 

seeking review of that ruling on appeal. At oral argument of 

this appeal, counsel for Consolidation Coal again asserted that 

by requesting the inclusion of the court’s ruling in the order, 

Levisa Coal is barred from pursing an appeal on this point. We 

disagree. 

It is entirely proper for a party to request that a court 

memorialize in an order a ruling made from the bench, even when 

that ruling is contrary to the party’s interest. Levisa Coal 

noted its objection to the court’s interpretation of the 1956 

lease as permitting the storage of water from any source within 

the VP3 Mine in the written objections submitted to the court 

prior to the entry of the final order, and those objections were 

expressly preserved by reference in that order. Thus, it was 

not necessary for Levisa Coal to renew its objection by a motion 

for reconsideration or any other means after entry of the final 

order. See, e.g., Chawla v. BurgerBusters, Inc., 255 Va. 616, 

621-23, 499 S.E.2d 829, 832-33 (1998)(error preserved by 

plaintiff’s written motion and supporting oral argument when 

objection noted on circuit court's final order). Accordingly, 

to the extent we have not already disposed of the matter by 

granting the petition for appeal, Consolidation Coal’s motion to 

dismiss and renewed motion to dismiss are denied. Similarly, we 

find no merit to Consolidation Coal’s contention made on brief 

16
“the right to store excess water from the Buchanan No. 1 [Mine] 

in the VP3 Mine.” Second, if the 1956 lease does not provide 

Island Creek Coal with the right to permit Consolidation Coal to 

store excess water from the Buchanan Mine in the VP3 Mine, we 

will consider whether the record supports the circuit court’s 

denial of Levisa Coal’s request for injunctive relief. 

Interpretation of the 1956 Lease

Like all leases, a mining lease is a contract and “when the 

terms of a contract are clear and unambiguous, a court must give 

them their plain meaning.” Pocahontas Mining L.L.C. v. Jewell 

Ridge Coal Corp., 263 Va. 169, 173, 556 S.E.2d 769, 771 (2002). 

On appeal, we review a trial court’s interpretation of a lease 

under a de novo standard. See Eure v. Norfolk Shipbuilding & 

Drydock Corp., 263 Va. 624, 631, 561 S.E.2d 663, 667 (2002) (“on 

appeal we are not bound by the trial court’s interpretation of 

the contract provision at issue; rather, we have an equal 

opportunity to consider the words of the contract within the 

four corners of the instrument itself”); Wilson v. Holyfield, 

227 Va. 184, 187-88, 313 S.E.2d 396, 398 (1984). 

Levisa Coal contends that the circuit court misinterpreted 

the language of the lease allowing “any use of the leased 

premises which [Island Creek Coal] may deem needful or 

 

of this appeal that Levisa Coal’s written objections did not 

17
convenient in carrying on its mining or other operations” as 

permitting the support of mining operations on other lands. 

Levisa Coal initially notes that, under Clayborn v. Camilla Red 

Ash Coal Co., 128 Va. 383, 105 S.E. 117 (1920), the 1937 deed 

conveying to it the solid mineral estate of the Buchanan County 

parcels permitted only a “necessary incidental easement” for 

purposes of removing the coal and other minerals. Id. at 390, 

105 S.E. at 119. Thus, Levisa Coal maintains that it did not 

obtain the right under the 1937 deed to support mining 

operations on other lands by permitting the inundation of the 

subsurface area with wastewater. Accordingly, Island Creek Coal 

could not have obtained the right to do so within its leasehold 

because the 1956 lease expressly limited the easements Levisa 

Coal granted to Island Creek Coal “to such rights as [Levisa 

Coal] owns and has the right to lease.” We agree with Levisa 

Coal. 

In Clayborn, we were required to determine, as a matter of 

first impression in Virginia, whether a trespass had occurred 

against the rights of the owner of the surface estate5 where the 

 

satisfy the contemporaneous objection requirement of Rule 5:25. 

5

 “Surface estate” is a term intended generally to refer to 

the rights of the owner of that portion of the original tract of 

land that has not been severed by deeds granting rights in the 

mineral estate or other resources of the tract of land. As 

Clayborn made clear, the rights of the surface owner are not 

limited to control of the surface area, but, depending on what 

18
owner of the severed coal estate was transporting coal from 

adjacent mining operations on other lands through the tunnels 

and shafts beneath the surface estate. We recognized that under 

“[t]he prevailing if not wholly unbroken current of authority 

. . . a grantee of coal in place is the owner, not of an 

incorporeal right to mine and remove, but of a corporeal 

freehold estate in the coal, including the shell or containing 

chamber, and that as such owner he has the absolute right, until 

all of the coal has been exhausted, to use the passages opened 

for its removal for any and all purposes whatsoever, including 

in particular the transportation of coal from adjacent lands, so 

long as he operates and uses the passages with due regard to the 

rights of the surface owner.” 128 Va. at 388, 105 S.E. at 118. 

After extensively reviewing the law from other 

jurisdictions, we held that a deed or lease transferring a coal 

estate or portion thereof is “the grant of an estate 

determinable [and w]hen the coal is all removed the estate ends 

for the plain reason that the subject of it has been carried 

away.” Id. at 393, 105 S.E. at 120. Thus, “[t]he space [the 

coal] occupied reverts to the grantor by operation of law.” Id. 

Accordingly, we concluded that the right to use the tunnels and 

 

rights are retained, may extend into the subsurface area. 

Clayborn, 128 Va. at 388, 105 S.E. at 118. 

19
shafts extended only to the mining operations within the 

determinable estate, and not to the support of mining operations 

on other lands. We further held that “[i]f the coal owner 

expects more” than the right to mine and remove the coal within 

his estate “he ought to stipulate for it” in the deed or lease. 

Id. at 397, 105 S.E. at 122. 

Although our decision in Clayborn was not consistent with 

the majority view of other jurisdictions, see id. at 401-02, 105 

S.E. at 123 (Prentis, J., dissenting), with respect to the issue 

in this case that decision is in line with the long established 

view in American law that “[t]he owner of a mine . . . may allow 

the water therein to flow in natural channels and percolations 

into an adjoining mine, but he may not, in absence of an 

easement or license to do so, discharge [water] by means of 

artificial drains into such adjoining mine.” Daniel M. 

Barringer and John S. Adams, The Law of Mines and Mining in the 

United States 631 (1900). This principle applies both to mines 

at different levels within the same subsurface area of a single 

tract of land as well as to mines on different tracts of land. 

We can discern no practical distinction between supporting 

adjoining mining operations by using tunnels and shafts to 

transport coal, as in Clayborn, and the storing of wastewater 

from such operations in the voids, tunnels and shafts of an 

unrelated mine, as in this case. Accordingly, we are of opinion 

20
that when the 1937 deed conveyed the solid mineral estate of the 

Buchanan County parcels to Levisa Coal, the parties to that deed 

contemplated only that the coal and other minerals would be 

mined from that estate, and that the deed conveyed only an 

incidental easement to use that portion of the parcels retained 

by the surface owner as was necessary to support such mining 

operations. Nothing in the deed conveyed any right to use the 

voids, tunnels and shafts created below the surface for any 

purpose other than to support the mining operations on those 

parcels. 

Since the 1937 deed conveyed no right to use any portion of 

the mineral estate to support mining operations on other lands, 

the 1956 lease could not have granted such right to Island Creek 

Coal. Accordingly, even if we were to accept Consolidation 

Coal’s argument that there was an incidental benefit to Island 

Creek Coal’s long-term operational plan for mining the Buchanan 

County parcels by permitting wastewater from the Buchanan Mine 

to be stored in the VP3 Mine, Island Creek Coal simply lacks the 

authority to permit Consolidation Coal to store wastewater from 

other mining operations in the VP3 Mine. Clearly, Island Creek 

Coal did not stipulate for such a use of the leasehold in the 

1956 lease, nor could Levisa Coal have granted such rights even 

if they had been sought. Thus, we hold that the circuit court 

21
erred in ruling that Consolidation Coal has a right to store 

wastewater from the Buchanan Mine in the VP3 Mine. 

Denial of Levisa Coal’s Request for Injunctive Relief

Because the circuit court premised its judgment to deny 

Levisa Coal’s request for injunctive relief, at least in part, 

on its erroneous determination that Consolidation Coal had the 

right to store excess water from the Buchanan Mine in the VP3 

Mine, we will reverse that judgment. Additionally, because the 

circuit court rendered that judgment in the procedural posture 

of the case which resulted in an insufficient record for this 

Court on appeal to resolve the issue of Levisa Coal’s 

entitlement to injunctive relief, we will also remand the case 

for further consideration of that issue by the circuit court. 

Upon appeal, Consolidation Coal has contended, as it did in 

the circuit court, that Levisa Coal lacks standing to seek 

injunctive relief in this case because the 1956 lease divested 

it of a present possessory interest in the leasehold given to 

Island Creek Coal. While the circuit court did not expressly 

address this contention, implicitly the court rejected it by 

reaching the merits of Levisa Coal’s requested relief. The 

record sufficiently reflects that Levisa Coal’s rights and 

interests are not limited to those of its retained ownership of 

the coal reserves below the Tiller Vein that Island Creek Coal 

presently has a right to mine. In addition, Levisa Coal 

22
reserved the right to explore for and remove other minerals 

under the 1956 lease, and the circuit court found that there was 

sufficient evidence, even without Hower’s affidavit, that 

inundation of the VP3 Mine with excess water from the Buchanan 

Mine would potentially damage the coal bed methane and other gas 

deposits associated with the VP3 Mine and adjoining strata in 

which Levisa Coal owns an interest. Accordingly, there is no 

merit to Consolidation Coal’s contention that Levisa Coal lacks 

standing to seek injunctive relief in this case, and that 

contention will not be an issue upon remand of this case to the 

circuit court. 

Levisa Coal’s standing to seek injunctive relief in the 

present case, however, is not sufficient alone to establish an 

entitlement to such relief. Under well established principles, 

which will be applicable upon remand here, the granting of an 

injunction is an extraordinary remedy and rests on sound 

judicial discretion to be exercised upon consideration of the 

nature and circumstances of a particular case. See, e.g., 

Fancher v. Fagella, 274 Va. 549, 556, 650 S.E.2d 519, 522 

(2007), Seventeen, Inc. v. Pilot Life Ins. Co., 215 Va. 74, 78, 

205 S.E.2d 648, 653 (1974); Akers v. Mathieson Alkali Works, 151 

Va. 1, 8, 144 S.E. 492, 494 (1928). 

We also note that because of the absence of any right of 

Consolidation Coal to store excess water from its mine in the 

23
VP3 Mine and the evidence in the record that it is currently 

doing so, the issue before the circuit court will no longer 

involve the consideration of temporary injunctive relief but, 

rather, whether the circumstances warrant the issuance of a 

permanent injunction.6 In that regard, the circuit court may 

have the benefit of additional evidence on the issue of the 

damages that inundation of the VP3 Mine may cause to Levisa 

Coal’s interests in the gaseous mineral estate associated with 

the VP3 Mine and the adjoining strata. Similarly, Consolidation 

Coal must be afforded the opportunity to present evidence to 

support its contention that Levisa Coal has an adequate remedy 

at law in the form of monetary damages resulting from the 

inundation of the VP3 Mine with wastewater from Consolidation 

Coal’s mine. 

The principles that a court must apply in properly 

exercising its discretion to grant or deny a permanent 

injunction have been identified in prior decisions of this 

Court. “Under traditional equitable principles, a chancellor 

 

6

 In the circuit court Consolidation Coal urged the 

application of a four-factor approach for determining whether a 

preliminary injunction should issue, similar to that adopted by 

the United States Court of Appeals for the Fourth Circuit in 

Blackwelder Furniture Co. v. Seilig Manufacturing Co., Inc., 550 

F.2d 189, 195-96 (4th Cir. 1977), for issues arising under 

F.R.Civ.P. 65. In the posture of this appeal it is not 

necessary to address that issue, and we express no view upon the 

matter. 

24
may enjoin a continuing trespass.” Fancher, 274 Va. at 556, 650 

S.E.2d at 522. See also Nishanian v. Sirohi, 243 Va. 337, 339, 

414 S.E.2d 604, 606 (1992); Mobley v. Saponi Corporation, 215 

Va. 643, 645, 212 S.E.2d 287, 289 (1975). However, even in a 

case involving a continuing trespass the guiding principle which 

remains constant is that the granting of an injunction is an 

extraordinary remedy and rests on the sound judicial discretion 

to be exercised upon consideration of the nature and 

circumstances of a particular case. See, e.g., Fancher, 274 Va. 

at 556, 650 S.E.2d at 522; Seventeen, Inc., 215 Va. at 78, 205 

S.E.2d at 653; Akers, 151 Va. at 8, 144 S.E. at 494. Thus, in a 

case of a continuing trespass, such as the present case, we have 

stated that if “the loss entailed upon [the trespasser] would be 

excessively out of proportion to the injury suffered by [the 

owner], or a serious detriment to the public, a court of equity 

might very properly . . . deny the injunction and leave the 

parties to settle their differences in a court of law.” 

Clayborn, 128 Va. at 399, 105 S.E. at 122. 

We have also observed that unless a party is entitled to an 

injunction pursuant to a statute, a party must establish the 

“traditional prerequisites, i.e., irreparable harm and lack of 

an adequate remedy at law” before a request for injunctive 

relief will be sustained. Virginia Beach S.P.C.A., Inc. v. 

South Hampton Rds. Veterinary Assoc., 229 Va. 349, 354, 329 

25
S.E.2d 10, 13 (1985); see also Carbaugh v. Solem, 225 Va. 310, 

315, 302 S.E.2d 33, 35 (1983). Clearly, if the plaintiff has no 

adequate remedy at law, equity will not countenance a continuing 

trespass merely because the trespasser, or even the public at 

large, will be benefited by allowing the trespass to continue. 

See Frank Shop, Inc. v. Crown Cent. Petroleum Corp., 264 Va. 1, 

7, 564 S.E.2d 134, 137 (2002). 

When an injunction is sought to enforce a contract right 

concerning personal property, the plaintiff has a high burden of 

showing that the failure to enjoin the alleged improper action 

will result in irreparable harm for which the law will afford 

him no adequate remedy. See, e.g., Griscom v. Childress, 183 

Va. 42, 47, 31 S.E.2d 309, 312 (1944); Langford v. Taylor, 99 

Va. 577, 580, 39 S.E. 223, 224 (1901). Unless the plaintiff can 

demonstrate that the property it seeks to protect has some 

personal value of sentiment or other intangible quality that 

cannot be restored to him at law, Langford, 99 Va. at 580, 39 

S.E. at 224, or that monetary damages would otherwise not make 

him whole, the court will deny the injunction because the legal 

remedy is sufficient. Moore v. Steelman, 80 Va. 331, 339-40 

(1885). Accordingly, in such cases, the court will give due 

weight to the adverse effect of the injunction being granted on 

the defendant. 

26
By contrast, when the injunction is sought to enforce a 

real property right a continuing trespass may be enjoined “even 

though each individual act of trespass is in itself trivial, or 

the damage is trifling, nominal or insubstantial, and despite 

the fact that no single trespass causes irreparable injury. The 

injury is deemed irreparable and the owner protected in the 

enjoyment of his property whether such be sentimental or 

pecuniary.” Boerner v. McCallister, 197 Va. 169, 172, 89 S.E.2d 

23, 25 (1955); accord Fancher, 274 Va. at 556, 650 S.E.2d at 

522-23; Clayborn, 128 Va. at 398-99, 105 S.E. at 122. 

Thus, in Clayborn we did not find that the alleged harm to 

the defendant constituted “the exceptional grounds” needed to 

require the owner of real property rights to forgo those rights 

for a purely legal remedy. Id. at 399, 105 S.E. at 122. Even 

though it was apparent from the record that the defendant could 

have negotiated the right to use the property “upon reasonable 

terms,” we held that the court could not impose such terms on 

the parties and, thus, the injunction ought to have been 

granted. Id. at 400, 105 S.E. at 123. 

Similarly, in Blue Ridge Poultry & Egg Co. v. Clark, 211 

Va. 139, 176 S.E.2d 323 (1970), we rejected the claim that an 

injunction ought not to issue to protect a landowner from a 

noxious intrusion of effluent onto his land from a neighboring 

industrial farming operation. Despite the fact that the 

27
chancellor had found that the damages to Clark’s property were 

quantifiable in terms of lost rent, we nonetheless held that 

“[t]he doctrine of ‘balancing of equities’ must be viewed in 

light of our long-standing pronouncement that a private 

landowner is to be protected for injuries he may sustain ‘even 

though inflicted by forces which constitute factors in our 

material development and growth.’ ” Id. at 144, 176 S.E.2d at 

327 (quoting Townsend v. Norfolk Ry. & Light Co., 105 Va. 22, 

49, 52 S.E. 970, 978 (1906)). 

By contrast, in Akers we found that where the trespass had 

essentially stopped by the time the case had come to trial, 

granting an injunction “would be of little benefit to the 

complainant and would cost the defendant $1,000,000.00.” Akers, 

151 Va. at 8, 144 S.E. at 494. In such a case, the availability 

of a remedy at law was clearly appropriate, and thus an 

injunction was not appropriate. Id.; see also Mobley, 215 Va. 

at 646, 212 S.E.2d at 290. 

Upon remand the circuit court will be guided by these 

principles after granting the parties the opportunity to present 

evidence regarding them. 

CONCLUSION 

For these reasons, we will reverse the judgment of the 

circuit court and remand the case for further proceedings 

consistent with the views expressed in this opinion. 

28
29

Reversed and remanded.