Henry E. Howell, III (Benjamin L. Perdue; J. Chapman Petersen; Eminent Domain Litigation Group; Surovell, Isaacs, Petersen & Levy, on briefs), for plaintiff.
Matthew L. Gooch, Assistant Attorney General (Mark R. Herring, Attorney General; John W. Daniel, II, Deputy Attorney General; Lynne C. Rhode, Senior Assistant Attorney General, on brief), for defendant.
PRESENT: Lemons, C.J.,
Goodwyn, Millette, Mims, Powell, and Kelsey, JJ., and Koontz, S.J.
S. BERNARD GOODWYN,
UPON QUESTIONS OF LAW CERTIFIED BY THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
Pursuant to Article VI, Section 1 of the Constitution of Virginia and our Rule 5:40, we accepted the following certified questions from the United States District Court for the Eastern District of Virginia:
(1) Did the enactment of Virginia Code section 55-154.2 in 1981, see Acts of Assembly
1981, c. 291, change the ownership of the shell, container chamber, passage, and space opened underground for the removal of the minerals to the owner of the minerals for coal severance deeds executed before July 1, 1981 that did not otherwise provide for ownership of the shell, container chamber, passage, and space opened underground for the removal of the minerals? In other words, does the presumption of mine void ownership created by the statute apply to deeds executed before July 1, 1981?
(2) If the answer is yes, and the presumption applies to coal severance deeds executed before July 1, 1981, and assuming that a predecessor in interest executed a valid coal severance deed in 1887, then under Virginia law what, if any, ownership interest in the mine voids would a subsequent grantee surface owner take if she were deeded the land in 1983? Would that grantee have any rights to the mine void under Clayborn v. Camilla Red Ash Coal Co., 128 Va. 383, 105 S.E. 117 (1920)?
On May 5, 1887, George W. Sutherland and his wife severed the mineral estate underlying their parcel of property in Dickenson County, Virginia, from the surface estate (Sutherland surface estate) and conveyed " all the coal, iron, petroleum oil and Gass [stet] and other ores and minerals lying and being in upon and under all that certain tract of land" to the Virginia Coal and Coke Company. The severance deed did not specify who would own the resulting mine void after all of the ores and minerals were removed. On May 10, 1983, Malva Bailey (Bailey) and her husband acquired ownership of a portion of the Sutherland surface estate.
On July 7, 2014, Bailey filed a civil complaint in the Circuit Court of the City of Richmond, asking the court for a declaratory judgment in her favor, pursuant to 42 U.S.C. § 1983 (2012 & Supp. I 2013), regarding the alleged taking of her real property by Conrad Spangler (Spangler), the Director of the Virginia Department of Mines, Minerals and Energy. She alleged that by issuing mining permits authorizing Dickenson-Russell Coal Company, LLC (Dickenson-Russell) " to conduct mine operations" in the mine void beneath her property, Spangler took her private property rights for private use, purportedly pursuant to Code § 55-154.2. Bailey asked the court to declare " Chapter 695, Virginia Acts of Assembly 2012 Session, an act to amend and reenact § § 45.1-181 and 55-154.2 of the Code of Virginia, relating to mine voids" unconstitutional both facially ...