Supreme Court affirms $19.57M award tied to DOH limestone use

By Carrie Salls | May 10, 2017

CHARLESTON – The Supreme Court of Appeals of West Virginia upheld a ruling that awarded $19.57 million plus interest to the heirs of a Hardy County property owner and other mineral rights holders in connection with the West Virginia Department of Transportation, Division of Highways’ use of limestone from the properties in a road construction project.

The heirs of Anna M. Veach, as well as St. Mary’s Catholic Church and Epiphany of the Lord Cemetery and the Roman Catholic Diocese of Wheeling-Charleston, filed a petition in 2010 asking the circuit court to order the department to start a proceeding related to the excavation of limestone used in the construction of the Corridor H highway.

Another mineral rights holder, Margaret Z. Newton, also filed a lawsuit based on nearly identical facts related to the usage of the limestone on her nearby property.

A jury in the Newton case ruled in favor of the plaintiff, “finding that she had met her burden of proving the quantity, quality, marketability and market value of the limestone removed by DOH and left in its natural state on the property,” according to the Supreme Court ruling.

After it lost its appeal of the Newton verdict, the department hired a new lawyer for the Veach lawsuit. Despite stipulations previously made by the department in the consolidated pre-trial proceedings for both cases, the new attorney claimed that “the Veach heirs did not own the limestone because it is not a ‘mineral’ subject to a general reservation of mineral rights.”

The state’s high court agreed with the summary judgment granted in favor of the Veach plaintiffs.

However, the granting of attorney’s fees to the plaintiffs was sent back to the lower court for further proceedings because the Supreme Court said the department was not properly notified and did not get a chance to state its case against payment of those fees.

In a concurring opinion filed on April 17, Supreme Court Justice Menis E. Ketchum II addressed the meaning of the word mineral in connection with rights disputes. Ketchum said he felt the need to define the term because the definition was sure to come before the state’s courts in the future.

“Should a question arise in the future as to the meaning of the word ‘mineral’ in a writing, courts should look to the general intent of the parties,” Ketchum said in his opinion.

Specifically, Ketchum said, “When a deed, will or other conveyance includes a general grant or reservation of all minerals without clear qualifying language, a court should reasonably assume that the parties to the writing intended to sever the entire mineral estate from the surface estate.”

In addition, Ketchum wrote, “The mineral estate includes all substances presently valuable in themselves, whether their presence is known or not, and all substances that become valuable through development of the arts and sciences.”

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