1 No. 17-0641 McElroy Coal Company v. Schoene Justice Ketchum, concurring, in part, and dissenting, in part: I disagree with the majority’s answer to the first certified question. The federal district judge thor oughly examined the West Virginia law and correctly determined that the waiver of subjacent s upport in the 1902 deed did not prohibit the Plaintiffs from pursuing a common law claim for subsidence damage to their home. The resolution of this issue only re quired a simple application of this Court’s plain, clear, unambiguous holding in Cogar v. Sommerville , 180 W.Va. 714, 379 S.E.2d 764 (1989). In Syllabus Point 3 of Cogar , the Court held, in relevant part, “A release ordinarily covers only such matters as may fairly be said to have been within the contemplation of the parties at the time of its execution .” (Emphasis added). Thus, a waiver of subjacent support is only valid when the type of mining activity was “within the contemplation” of the original parties to the deed containing the waiver. The Court’s holding in Cogar followed a long line of mining cas es. As it explained, the Court’s ruling was consistent with our mining ca ses holding that a severance deed is to be construed in light of the conditions and reasonable expectations of the pa rties at the time it is made. As a consequence, mining methods not contemplated at the time of the severance deed may not be utilized. See Brown v. Crozer Coal & Land Co., 144 W.Va. 296, 107 S.E.2d 777 (1959) (auger mining); West Virginia-Pittsburgh Coal Co. v. Strong , 129 W.Va. 832, 42 S.E.2d 46 (1947) (strip mining). It would be impossible to conceive that the parties to old severance deeds would have any contemplation of waiving future statutory rights. 

### FILED April 12, 2018 released at 3:00 p.m. EDYTHE NASH GAISER, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA2 Furthermore, in Syllabus Point 1, in part, of Winnings v. Wilpen Coal Co., 134 W.Va. 387, 59 S.E.2d 655 (1950), we held that a coal severan ce deed containing broad mining rights would not be construed to waive the right of subjacent support “unless [the surface owner’s] intentio n so to do clearly appears from express language or by necessary implication.”

. . . Finally, our conclusion is in ac cord with the general principle that a release or wa iver of liability or damages covers only those items that are within the ordinary contemplation of the parties . As we stated in Syllabus Point 2 of Conley v. Hill , 115 W.Va. 175, 1 74 S.E. 883 (1934), overruled on other grounds, Thornton v. Charleston Area Medical Center , 158 W.Va. 504, 21 3 S.E.2d 102 (1975): “A release ordinarily covers only such matters as may fairly be said to have been within the contem plation of the parties at the time of its execution.” Cogar , 180 W.Va. at 719-20, 379 S.E.2d at 769-70 (emphasis added). The deed in the presen t case was made in 1902. In 1902, most coal was mined by miners using picks and shovels. Additionally, most coal was removed from coal mines by wagon or carts on rails pulled by mules. The defendants’ mining operations under the plaintiffs’ property in th e instant case was done using the longwall method of mining. Longwall mi ning uses huge million dollar m achines that rip out tons of coal in seconds, shooting it out of the mi ne on continuously ru nning conveyor belts. The federal district judge did extensive re search on longwall mini ng and concluded as

follows: This Court holds that the broad form waiver of subjacent support is not a valid waiver against the subsidence damage caused by longwall mining. Longwall mining was unknown in Marshall County and to th e lessors at the time the instrument was executed. Longwall mining provides almost3 a certainty of significant subsid ence and the loss of all natural water sources. On the other hand, room and pillar mining, that known in 1902, carries with it only the possibility of subsidence and not commonly th e loss of water resources. Schoene v. McElroy Coal Co., 2016 WL 397636 , at 6 (N.D. W.Va . Jan. 29, 2016) (emphasis added). The federal district judge was correct in ruling that the wa iver of subjacent support was not enforceable because longwall mining was u nknown in Marshall County in 1902, and, therefore, not contempl ated by the parties to the 1902 deed. I agree with the majority opinion’s answers to the other certified questions.