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 thoroughly examined the West Virginia law and correctly 

determined that the waiver of subjacent support 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 required 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 cases. As it explained, the Court’s 

ruling was 

consistent with our mining cases holding that a severance 

deed is to be construed in light of the conditions and 

reasonable expectations of the parties 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 VIRGINIA
2

 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 severance deed containing broad mining 

rights would not be construed to waive the right of subjacent 

support “unless [the surface owner’s] intention so to do 

clearly appears from express language or by necessary 

implication.” 

 . . . 

 Finally, our conclusion is in accord with the general 

principle that a release or waiver 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, 174 S.E. 883 (1934), 

overruled on other grounds, Thornton v. Charleston Area 

Medical Center, 158 W.Va. 504, 213 S.E.2d 102 (1975): 

 “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.” 

Cogar, 180 W.Va. at 719-20, 379 S.E.2d at 769-70 (emphasis added). 

 The deed in the present 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 the instant case was done using the longwall 

method of mining. Longwall mining uses huge million dollar machines that rip out tons 

of coal in seconds, shooting it out of the mine on continuously running conveyor belts. 

The federal district judge did extensive research on longwall mining 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 the lessors at the time the 

instrument was executed. Longwall mining provides almost 
3

a certainty of significant subsidence 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 the 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 waiver of subjacent 

support was not enforceable because longwall mining was unknown in Marshall County 

in 1902, and, therefore, not contemplated by the parties to the 1902 deed. 

 I agree with the majority opinion’s answers to the other certified questions.