
    CHARLESTON.
    O. M. Hall v. Harvey Coal & Coke Co.
    Submitted September 7, 1921.
    Decided September 20, 1921.
    1. Appeal akd Error — Amount Sued for Held Amount in Controversy Notwithstanding Verdict.
    
    Where a demurrer is overruled and the jury, on the issue, finds a verdict of $100.00 for plaintiff, but, instead of entering a judgment thereon and disposing of a motion for a new trial, the court certifies its action on the demurrer to this court for review, the amount in controversy is the sum sued for, and this court will take jurisdiction upon the question certified, (p. 57).
    
      2. Mines and Minerals — Deed to Minerals in Place loith Mining Privilege, without Words Waiving Subjacent Support, Not Construed to Protect Tendee Against Damages From Removing. Coal.
    
    
      A deed to coal and minerals in place containing privilege of mining and removing, without words in either the granting clause or mining provision indicating an extinguishment or waiver of the right of subjacent support to the surface in case the coal is mined and removed, will not be construed to protect the vendee against damages to the surface caused by the mining and removal of the coal. (p. 59).
    3. Same — Conveyance of Minerals with Mining Right with Covenants of General Warranty Does Not Extinguish Vendor’s Right to Subjacent Support.
    
    A conveyance of coal and all minerals, with the right of mining and removing said coal and all minerals, with covenants of general warranty of the coal and other minerals, does not evince the extinguishment of the right of the vendor to subjacent support to protect the surface of the land in its natural state in the event of the removal of the coal. (Distinguished from Griffin v. Coal Co., 59 W. Va. 490). (p. 59).
    (Lynch, Judge, absent).
    Case certified from Circuit Court, Fayette County.
    Action by O. M. Hall against the Harvey Coal & Coke Company. Demurrer to the declaration overruled, and case certified.
    
      Affirmed.
    
    
      G. R. Summerfield, for plaintiff.
    
      Dillon & Nuckolls, /or defendant.
    
   Lively, Judge:

A demurrer to the declaration was overruled, and the circuit court has certified its action in so doing to this court, and the sufficiency of the declaration is now under review.

Plaintiff filed its declaration in trespass on the case, alleging ownership of the surface of a .tract of land, the coal and all minerals under which, prior to his purchase of the surface had been sold by a former owner in the year 1898 to Harvey and Thurmond, with the right to mine and remove the same, the deed to which coal and all minerals' is filed with the declaration as a part thereof; that the defendant had wantonly and willfully removed all or practically all of the coal, without leaving sufficient coal in place, or without leaving in its place other permanent artificial support for preserving the surface or overlying strata in its natural condition, by reason whereof the surface began to sink in places, causing cracks, holes and crevasses, and rendering the land unfit and useless for farming and grazing purposes, and causing damage to plaintiff of $3000.00.

Oyer was craved of the deed filed as a part of the declaration, whereupon it was produced and by order of the court made a part- of the declaration, and then defendant demurred to the declaration, which demurrer was overruled, issue joined and the case went to trial, resulting in a verdict in favor of the plaintiff of $100.00. Motion by defendant to set aside the verdict followed, and the court, without passing upon the motion, and believing the question of the sufficiency of the declaration of vital importance, on its own motion certified its action in overruling, the demurrer to this court for review, and stayed further prceedings.

Two deeds accompany the record, but as only one of them, the deed from Painter to Harvey and Thurmond in 1898, is’ referred to in the declaration, and that only could have been made a part of the declaration by Oyer, it, only, will be considered on demurrer.

It is well settled that papers attached to or made a part of a declaration, or exhibited therewith, cannot be considered upon a demurrer to the declaration. Such documents are evidence in support of the averments of the declaration and go to the jury. Pingley v. Pingley, 84 W. Va. 433. But inasmuch as oyer of this deed was craved without objection from plaintiff and the deed made a part of the declaration, defendant is entitled to whatever benefit he may derive therefrom. Chitty on Pleading, vol. 1, p. 431 (11th ed.) Tt seems that the parties and the court have tacitly agreed that the deed may be considered upon the demurrer, and in this particular instance, for the purposes of this case, it will be so considered.

We are met at the threshold with a question of our jurisdiction to entertain this case under sec. 1, chap. 135, Code 1918, which provides for certification of questions arising upon the sufficiency of a summons or return of service, or challenge of the sufficiency of a pleading in any case within the jurisdiction of this court. It is urged that this court is not called upon to pass on the sufficiency Of a pleading, but to construe a deed and to determine from it the right of defendant to remove the coal as lessee of Harvey and Thurmond, without leaving support sufficient to sustain the surface in its natural state. As above stated, plaintiff, filed this deed as a part of his declaration and it was made and considered so by the court upon oyer without objection on the part of plaintiff, and he should not now complain of what he has done. Besides the declaration sets out that Painter, a former owner of the land, had, before plaintiff obtained title to the surface, conveyed “the coal and other minerals” underlying the same to Harvey and Thurmond. The declaration, while averring the ownership of the coal and minerals in others, in partial conformity with the deed, does not set out the clause or provision in the deed therefor by which the purchasers have the mining rights for “removing said coal and all minerals from said land,” a privilege and right which would necessarily follow from the sale and conveyance of the coal and minerals. If there was not an implied right to mine and remove the coal and minerals, the purchase would be of little value. It is the law of necessity. The sale of land lying in the interior of and surrounded by the grantor’s land implies a right of way to the grantee over the grantor’s land for ingress and egress. The parties may stipulate the kind of way, its location, width, etc., so as to save possible disputes and resorts to the courts. In this deed the parties have incorporated therein a specific agreement for what the law of necessity impliedly grants, to be exercised in a particular,' specified manner. The provision in the. deed for mining and removing the coal does not materially affect the granting clause of the coal practically set out and averred in the declaration, and the demurrer could well be considered and disposed of without resort to the deed.

It is also urged that inasmuch as the verdict has been rendered for $100.00, the amount in controversy is too small for appeal to this court, and no question on a pleading can be certified unless the pase is within the appellate jurisdiction of the Supreme Court. But what is the amount in controversy ? Does the verdict of the jury upon which the court has taken no action fix the amount in controversy. “All courts deny to a verdict the legal effect of a judgment" Hannah v. Bank, 53 W. Va. 86. The amount in controversy as to plaintiff is the sum for which he sues though judgment be rendered for á less sum or judgment be for the defendant. As to the defendant, it is the amount of the judgment as of its date. This is well settled. The eases cited by plaintiff, including Rymer v. Hawkins, 18 W. Va. 309; Faulconer v. Stinton, 44 W. Va. 546; and Greathouse v. Sapp, 26 W. Va. 87; are cases where judgments or decrees were rendered for less than the jurisdictional amount and the appellant was defendant below. Here neither party is appealing, but the circuit court, on its own motion and in its discretion, has certified its decision for review. Pending the motion for new trial, nothing is settled. The circuit court may of its own motion set aside the verdict. In the present status of this ease the amount in controversy is the ad dammim stated in the writ and declaration.

We come now to the question certified. Does the declaration and deed state a good cause for recovery? Defendant insists that the answer is in the negative under the decision of this court in Griffin v. Coal Co., 59 W. Va. 480. That case recognizes the rule well settled in England and the majority of the states that where one person owning the whole fee conveys the mineral therein, reserving to himself the surface, the grantee, in removing the mineral, is bound to furnish sub-jacent support for the surface in its then natural state, either by leaving sufficient of the ground to remain, or by substituting therefor adequate artificial support, unless there are eontraetural provisions either in the conveyance or otherwise to the contrary. In construing the deed from Griffin to-Camden the court held that the vendor had contracted away the subjacent support of the vendee, because in granting mining privileges he had|' given the right to the vendee to excavate and remove all of the coal. Much stress is laid upon the word “all” as used in that deed a¿id the court virtually holds that without the word “all,” evincing a waiver of sub-jacent support by the grantor, he would not have parted with the right of subjacent support. Judge Cox, in his concurring opinion, says: ‘ ‘ The plaintiff granted all the coal, and the ownership of the surface and of the underlying coal was severed, creating an estate in each. If the deed said nothing more, the owiier of each would be bound by the rule sic utre etc. If the deed said nothing more, I would without hesitation hold that the owner of the surface would be entitled to support, and that the owner of the coal could not so use it by removing all of it as to injure the surface. The deed does not stop with the grant of all the coal. It contains the .express additional grant, on the part of the plaintiff, to the grantee of the right to enter upon and under said land and to mine, excavate and remove all of said coal. ’ ’ In the case of Kuhn v. Fairmont Coal Co., instituted in the U. S. Court for the Northern District of West Virginia after the decision in the Griffin Case, but based on a sale of coal made before the decision in the Griffin Case, the Supreme Court of the United States, in 215 U. S. 349, decided that the Griffin decision was not a rule of property and therefore not binding on the federal courts in the Kuhn Case; and the circuit court of appeals, Judge Pritchard rendering the decision, said, “We are not unmindful of the fact that the decisions of the courts of England and many of the courts of this country as respects this question are not in harmony with the decisions of the courts of West Virginia. Nevertheless, we find ourselves impelled to the conclusion that this difference is on account of the peculiar facts involved in this case and not because of the propositions of law announced by the courts to which we refer. ” It is then stated that inasmuch as the decision in the Griffin case would be a rule of property as between citizens of West Virginia, and if the circuit court of appeals should not follow the Griffin case, a different rule of property would be established for persons not resident of West Virginia and who might sue in the federal courts concerning property in West Virginia, thus bringing about confusion and injustice; and, “on that account, we would be inclined to adopt the rule of the West Virginia Supreme Court of Appeals, even if, in view of the peculiar provisions of the conveyance by which the land in controversy was transferred, we do not find ourselves in accord with that tribunal.” 66 W. Va. p. 711 (Appendix).

As before stated the Griffin Case turned upon the use of the word “all” in the mining clause which gave the vendee the right “to mine, excavate and remove all of said coal.” In this ease the language is different. The granting clause is: “do bargain, sell, grant and hereby convey the coal and all minerals in and upon the hereinafter described tract ’ ’; and the mining clause reads, “do also grant the right of mining, and removing the said coal and all minerals from said land”; and the warranty clause is “that they will warrant, with general warranty of title, the said coal, and other minerals, with the rights and privileges aforesaid hereby granted.” Here, the word all does not modify “coal.” The main and controlling subject about which the parties were contracting was the coal, but all minerals of whatever kind were also included, with the right to mine and remove, such as gold, silver, gas, petroleum and the like. Not only the coal was purchased but all minerals also. We think a proper construction of this deed, viewing the entire language and not any segregated words or clauses, evinces the intention of the parties to sell and purchase not only the coal, but all other minerals in the land with the right to mine and remove the same. It is easily distinguished from the Griffin Case.

Godfrey v. Weyanoke Coal and Coke Co., 82 W. Va. 665, has no application here. In that case there was an express agreement that the vendee should have the right to mine the entire amount and body of the coal, without being in any way liable for any damage or injury which might be done to the land.

From what has been said, we do not find sufficient language in the deed under consideration which would deprive the grantor of his right to subjacent support in the removal of the coal by the grantee. The right of the grantee so to do is not expressed so plainly as to preclude doubt.

The demurrer to the declaration was properly overruled, and we so answer the question certified.

Affirmed.  