Mullins v. Clinchfield Coal Corp. (128 F. Supp. 437, 1953)

BARKSDALE, District Judge.

This action is a controversy between Marjorie A. Mullins, plaintiff, and Clinchfield Coal Corporation and Chesapeake & Ohio Railway Company, defendants, as to the respective rights of the parties in and to a tract of land containing 96.5 acres in Wise County, Virginia, usually referred to as the “Upper Bond Tract”. The complaint herein, filed July 25, 1951, alleges that the plaintiff, by deed recorded December 19, 1944,. acquired certain coal, gas, oil and minerals upon this tract, the deed providing-that “grantee shall have the right to-dig, mine, drill, prepare for market and remove or carry away the said coal, gas,, oil and minerals without liability for damages to the surface, or anything thereon, nor shall grantee be liable for damages for sinking of any water on said land, with rights of ingress and egress for purpose of exercising their-mining rights hereunder”, and that subsequently, defendant Clinchfield acquired surface rights in and to the aforesaid. tract of land. The complaint further alleges that, after Clinchfield acquired the surface rights in and to this tract of land, it constructed a coal tipple and preparation plant thereon, in order to process and ship coal mined by Clinch-field from other tracts of land owned by it, and that by agreement with Clinch-field, defendant Chesapeake & Ohio constructed on the said tract its railway tracks, sidings and structures in order to serve Clinehfield’s tipple and preparation plant, all in derogation of her rights. The complaint further alleges that defendant Chesapeake & Ohio changed the course of Meade Creek and relocated Virginia State Highway Secondary Route 632 on said tract, in derogation of her rights. Paragraphs 10 and 11