Coal Mine Subsidence – What are my rights as a landowner?

Coal Mine Subsidence – What are my rights as a landowner?

Coal Mine Subsidence – What are my rights as a landowner?

Many local residents are facing, or will soon face, a not too uncommon problem - a coal company sending them letters that it is about to start mining activities under their land and home. What can you do?  Can you stop the mining?  What rights do you have once the mining occurs?  The answers to those questions are probably not going to be accurately given to you by the coal company employees.  People facing such circumstances would be wise to contact an attorney to learn what their rights really are. Unfortunately, it is most likely true that there is no way to stop the mining from occurring.  Decades ago, most of the minable coal seams in the Ohio Valley were severed away from the surface of the lands.  The result is that many, if not most, people who own surface land in this area probably do not own the coal under their land.  Many years ago, an owner of the land either sold the coal and kept the land or kept the coal when they sold the land.  Those types of transaction are called “severances.”  Even though those transactions occurred, in some cases more than 100 years ago, the terms of those transactions might still control your property.  As coal companies bought coal from landowners, they were able to insert language in the deeds making sure that they had the right to mine the coal.  The breadth and scope of that language might limit what you can do today in response to coal mining operations.  Some of the language utilized was very broad and, arguably, would give the coal operator the right to mine and remove all of the coal under your land without leaving any support for your surface lands.  Once the coal is removed, the land falls to fill the void.  That is how subsidence damages occur.  If a coal company is planning to mine under your land it is very important to have a title review done to locate the language used in the coal severance deed affecting your property.   While it is fairly likely that the coal company already owns the coal under your land, the language of the severance deed will help you determine what your rights are to be compensated when your home and land is damaged. Courts have a history of upholding damage and support waivers in prior deeds when it can be shown that the damage and support waivers are clear, unambiguous and reflect that the parties really did intend that the types of damages that may be caused were waived.  One must consider when the deed was signed, where it was signed and the language actually used to decide whether a landowner could purse common law damages for the damages to their land.  Those common law damages might include the cost of repair, even if the cost of repair is more than the value of the property, as well as damages for loss of use, annoyance and inconvenience.  If, however, the damage waiver language is strong and enforceable, the federal government and the states have enacted laws which do require coal companies to provide certain types of compensation to injured landowners.  The system is imperfect, but for many individuals it is their only recourse. The applicable Surface Mining Control and Reclamation laws require, as part of the regulatory and permitting process, coal companies to agree to provide certain types of recourse to landowners even if a deed waiver is enforceable.  Those types of actions might require the coal company to fix the damage to any lands, to replace a lost domestic water sources and to repair and/or compensate for damages to homes and structures.  Coal companies typically argue that it is their choice to determine whether to repair structures or to merely offer compensation.  Many choose compensation and argue that they are only responsible to pay the landowner for the amount of decrease in the property value caused by the mining damages.  As you might expect, in most circumstances that would leave a landowner severely undercompensated and without the necessary funds to repair or rebuild their home.  At least one local judge has ruled that the law in West Virginia is that the landowner gets to make that decision and that if the home can be repaired, they can select the compensation option and receive the full amount necessary to repair the home even if that amount is more than the value of the property.  Importantly, federal and state law both provide circumstances where a landowner might be able to recover their attorney fees and certain costs incurred in bringing lawsuits under the mining control and reclamation acts. Coal companies complying with state and federal law are required to give landowners notice of mining operations and are required to conduct certain pre-mine inspections including interior and exterior inspections of properties and structures which are expected to be damaged by the proposed mining.  Importantly, once a coal company conducts a pre-mine inspection of a home, there is a clear presumption that any damages caused to the home after the start of mining were, in fact, caused by the mining.  Therefore, it is important that landowners permit pre-mine inspections of their homes to occur. Also, do not forget that you may have mine subsidence damage insurance under your homeowners insurance policy.  If you live in an area with recent or active coal mining it is highly likely that you were offered, or should have been offered, that type of coverage.   You should review your insurance policy to see what types and amounts of coverage you might have. If you receive notice that a coal company is about to start mining under your land, you should contact legal counsel as soon as possible to determine your rights.  Knowing from the beginning what you will be facing can be invaluable.  Our firm recently took a mine subsidence damage case all the way to trial in federal court in West Virginia.  Senior Partner Jim Bordas, and myself, were able to receive a $547,000 verdict on behalf of West Virginia residents whose home and land were damaged by coal mine subsidence and we continue to represent other individuals in ongoing mining cases. If you have been contacted by a coal company which intends to mine under your property, please feel free to get in touch with us for a free consultation regarding your rights.