Implied Coal Owner Rights to Require Plugging of Overlying Gas Wells and Preliminary Injunction Standards in West Virginia: Commentary on Wendt v. West Virginia Land Resources, Inc.

Implied Coal Owner Rights to Require Plugging of Overlying Gas Wells and Preliminary Injunction Standards in West Virginia

Commentary on L. Allen Wendt and Carolyn Wendt v. West Virginia Land Resources, Inc. and Marshall County Coal Resources, Inc.

1. Introduction

This memorandum decision from the Supreme Court of Appeals of West Virginia concerns a clash between:

  • Surface owners and partial oil-and-gas owners (L. Allen and Carolyn Wendt), and
  • An underground coal operator (Marshall County Coal Resources, Inc., “MCCR”) and its affiliate responsible for plugging a legacy gas well (West Virginia Land Resources, Inc., “WVLR”).

The dispute centers on a nearly century-old gas well (Well No. 3403) drilled under a 1929 lease, located on the Wendts’ property and allegedly within 500 feet of their residence. MCCR planned longwall mining of the underlying coal and asserted that, under mining permits and safety regulations, the gas well had to be plugged before mining could proceed. The Wendts resisted the plugging operations, leading to litigation and a motion for a preliminary injunction compelling access to plug the well.

The circuit court granted a preliminary injunction in favor of WVLR and MCCR. On appeal, the Wendts challenged the injunction on six grounds, including:

  • Alleged conflation of WVLR’s and MCCR’s harms and rights,
  • Improper reliance on implied coal owner rights in light of express deed restrictions,
  • Misinterpretation of the Chambers Lease and its assignment,
  • The lack of an evidentiary hearing, and
  • Misapplication of West Virginia Code § 36-4-9a governing presumptions of abandonment of oil and gas wells and equipment.

The Supreme Court affirmed the preliminary injunction on narrow grounds, focusing solely on MCCR’s interests and rights, and explicitly declined to resolve broader issues that remain for the underlying case. The decision is doctrinally modest but important in two respects:

  1. Procedurally, it reinforces waiver principles in preliminary injunction hearings and clarifies appellate restraint in reviewing such orders.
  2. Substantively, it recognizes, at least at the preliminary injunction stage, that a coal owner may rely on implied rights and a priority clause in a severance deed to require plugging of an overlying gas well deemed “reasonably necessary” to mine the coal, notwithstanding a deed-based surface-use buffer around a residence.

2. Factual and Procedural Background

2.1 The property interests

The case involves a classic West Virginia “split estate”:

  • Surface and partial oil and gas estate: Owned by the Wendts. They are surface owners and own an undivided interest in the underlying oil and gas.
  • Coal estate: The “Pittsburgh or River Vein of coal” and associated mining rights were severed from the surface in a deed dated May 31, 1902 (“severance deed”). MCCR now owns those coal and mining rights and operates an underground coal mining facility using longwall methods, including under the Wendt property.

The 1902 severance deed contains two key provisions:

  1. It reserves rights to drill for oil and gas, but expressly states that oil and gas recovery “shall not in any manner interfere with the mining” of the coal.
  2. It restricts use or occupation of the surface for coal-related purposes within 500 feet of principal buildings existing at the time and buildings or dwellings later erected on the property.

2.2 The 1929 Chambers Lease and Well 3403

In 1929, the Wendts’ predecessors in interest (B.R. and Alice R. Chambers) leased the oil and gas rights to Manufacturers Light Heat Co. Under that lease:

  • In 1930, Well No. 3403 (API No. 47-051-00010) was drilled and completed on the property.
  • The lease was modified in 1964, principally adjusting free-gas and royalty terms; together these documents are the “Chambers Lease.”
  • Under the Chambers Lease, the surface owner received “free gas” for their residence, a common historic feature in Appalachian leases.

The well and lease rights were conveyed multiple times, eventually ending up with Leatherwood, LLC (successor to various entities, including Tri-County Oil & Gas, Inc., per the Wendts’ third-party complaint). Leatherwood became the lessee under the Chambers Lease, including Well 3403.

2.3 The wellbore assignment to WVLR

In January 2022, Leatherwood entered into a “Well-Bore Assignment and Bill of Sale” with WVLR, an affiliate of MCCR. The assignment:

  • Transferred to WVLR the “well-bore only” of certain wells, including Well 3403.
  • Conveyed all Leatherwood’s “right, title and interest” in:
    • The wellbore of Well 3403;
    • Associated equipment not removed within 30 days;
    • Interests in the well to the existing depth “solely related to plugging, dismantling, removal, reclamation and abandonment.”
  • Granted “rights-of-way or easements as may be necessary, with full rights of ingress and egress,” but only for the purpose of allowing WVLR to plug, dismantle, and remove Well 3403.
  • Expressly did not transfer oil, gas, or coalbed methane interests beyond the wellbore.

Thus, WVLR’s role was narrow: it became the entity charged with plugging and abandoning the well, while deeper oil and gas rights and production interests remained with others (e.g., Leatherwood or a “deep rights” holder).

2.4 Planned mining and the need to plug the well

MCCR obtained permits to conduct longwall mining beneath the Wendt property. Under applicable regulations and permit conditions, MCCR contended it could not safely or lawfully proceed with longwall mining under the well until Well 3403 was plugged.

According to the affidavit of John Hores, Project Engineer for American Consolidated Natural Resources, Inc. (an affiliate of MCCR and WVLR):

  • The well needed to be plugged in August 2024 to meet mine plans and production schedules.
  • Failure to plug the well ahead of undermining created:
    • Risks of methane gas migration and potential explosions within the mine; and
    • Economic harm due to disruption or delay in mining and production (described as “incalculable” damages).

In June 2023, WVLR attempted to begin plugging operations but was met with resistance from the Wendts. The well was eventually “shut in” (temporarily closed), but the Wendts continued to oppose plugging.

2.5 The lawsuit and preliminary injunction

On June 26, 2023, WVLR and MCCR filed suit in circuit court seeking:

  • Declaratory relief,
  • Injunctive relief (to compel access for plugging),
  • Damages for tortious interference with contractual relations, and
  • Damages for conversion.

After removal to federal court and remand, the respondents filed a motion for preliminary injunction and request for an expedited hearing on April 22, 2024, supported by the Hores affidavit.

At the preliminary injunction hearing, the circuit court:

  • Proposed proceeding solely on legal argument since the facts were “relatively straightforward” and the issues largely legal.
  • Invited counsel’s input; no party objected to proceeding without live witnesses or additional evidence.
  • Heard arguments from counsel; respondents’ counsel represented (apparently without dispute) that the Wendts had secured another gas supply for their residence.

On June 14, 2024, the circuit court:

  • Granted the preliminary injunction,
  • Required respondents to post a $100,000 bond,
  • Ordered the Wendts to allow immediate access for plugging operations, and
  • Enjoined the Wendts from interfering with WVLR or its agents in plugging Well 3403.

The court held that:

  • Respondents demonstrated a likelihood of irreparable harm and lack of an adequate remedy at law.
  • Respondents were likely to succeed on the merits.
  • The balance of equities and public interest favored issuing the injunction, based in part on:
    • West Virginia Code § 22C-8-1 (policy of full, safe recovery of coal and gas), and
    • West Virginia Code § 22-10-2(b) (encouraging proper plugging of abandoned wells).

The circuit court also found that neither Leatherwood nor any “deep rights” holder was an indispensable party at this preliminary stage.

2.6 Appeal, plugging of the well, and mootness

The Wendts appealed and sought a stay of the injunction in circuit court, which was denied. A status update showed that WVLR had plugged Well 3403 in August 2024, and an affidavit of plugging was filed with the West Virginia Department of Environmental Protection’s Office of Oil and Gas.

Respondents urged the Supreme Court to find the case moot because the well was already plugged. The Court declined, citing the principle that a potential cause of action on the injunction bond can preserve a live controversy, referencing syllabus point 1 of Wyckoff v. Painter, 145 W. Va. 310, 115 S.E.2d 80 (1960).

3. Summary of the Supreme Court’s Decision

The Supreme Court, applying Rule 21(c) of the West Virginia Rules of Appellate Procedure (memorandum decisions in cases without substantial questions of law or prejudicial error), affirmed the circuit court’s preliminary injunction on narrow grounds:

  1. Waiver of evidentiary hearing: The Court held that the Wendts waived any objection to the lack of an evidentiary hearing by failing to object and proceeding on legal argument only.
  2. Focus on MCCR’s rights only: Because it could affirm the injunction based solely on MCCR’s rights and harms, the Court explicitly declined to address:
    • The scope of WVLR’s rights under the Chambers Lease and assignment;
    • The alleged conflation of WVLR’s and MCCR’s harms;
    • The application of West Virginia Code § 36-4-9a (presumption of abandonment) to the well and equipment; or
    • Whether Leatherwood or a deep-rights holder was indispensable.
  3. Construction of the severance deed: Reading the deed as a whole under Maddy v. Maddy, the Court emphasized the clause that oil and gas operations “shall not in any manner interfere with the mining” of coal. On the limited record and at the preliminary stage, the Court agreed with the circuit court that:
    • Plugging Well 3403 was not itself a “coal mining operation,” and
    • The plugging did not clearly fall within the deed’s prohibition on “use or occupation” of the surface by the coal owner within 500 feet of a residence.
  4. Implied rights of the coal owner: Relying on Squires v. Lafferty and Buffalo Mining Co. v. Martin, the Court held that MCCR had made a sufficient preliminary showing that timely plugging of Well 3403 was “reasonably necessary” for it to exercise its right to mine the underlying coal, and that these implied rights could be exercised without a substantial burden on the surface owner, at least as shown on the record.
  5. Irreparable harm and inadequate remedy at law: Based on the Hores affidavit and the undisputed safety and scheduling concerns, the Court upheld findings that:
    • MCCR faced potential interference with mining operations, “incalculable” economic loss, and safety risks if the well remained unplugged; and
    • No adequate remedy at law would compensate for such harms.
  6. Balancing of equities and public interest: The Court affirmed the circuit court’s conclusion that:
    • The hardship to MCCR if it could not plug the well outweighed any irreparable harm to the Wendts, especially in light of their alternative gas supply and available legal remedies.
    • The injunction advanced the public interest in safe mining, proper plugging of wells, enforcement of contracts, and protection of private property rights.

On that “limited basis,” the Court found no abuse of discretion and affirmed the preliminary injunction order.

4. Detailed Analysis

4.1 Standards for preliminary injunctions and appellate review

The Court reaffirmed well-settled West Virginia law on preliminary injunctions.

4.1.1 Appellate standard of review

Citing syllabus point 2 of Ne. Nat. Energy LLC v. Pachira Energy LLC, 243 W. Va. 362, 844 S.E.2d 133 (2020), the Court reiterated the three-part standard:

  • Abuse of discretion for the ultimate decision to grant or deny a preliminary injunction;
  • Clearly erroneous review of underlying factual findings; and
  • De novo review of questions of law.

This framework sharply limits what an appellant can achieve on interlocutory review. An appellate court will not substitute its judgment for the circuit court’s unless the decision falls outside the range of reasonable discretion, factual findings lack evidentiary support, or the law is misapplied.

4.1.2 Substantive standard for issuing a preliminary injunction

Relying on Pachira and its quotation from State By & Through McGraw v. Imperial Marketing, 196 W. Va. 346, 472 S.E.2d 792 (1996), the Court repeated the customary West Virginia standard:

A party seeking the temporary relief must demonstrate by a clear showing:
  1. a reasonable likelihood of the presence of irreparable harm;
  2. the absence of any other appropriate remedy at law; and
  3. a balancing of hardship test, including:
    1. likelihood of irreparable harm to the plaintiff without the injunction;
    2. likelihood of harm to the defendant with an injunction;
    3. plaintiff’s likelihood of success on the merits; and
    4. the public interest.

The Court also invoked syllabus point 4 of State ex rel. Donley v. Baker, 112 W. Va. 263, 164 S.E. 154 (1932), emphasizing that granting or denying injunctive relief lies in the circuit court’s “sound judicial discretion,” to be exercised in light of the particular circumstances, controversy, and comparative hardship.

In this case, the Supreme Court’s role was thus not to decide ultimate ownership or priority of the mineral rights, but to determine whether the circuit court reasonably found the preliminary elements met.

4.2 Waiver of an evidentiary hearing

One of the Wendts’ central procedural claims was that the circuit court erred in issuing a preliminary injunction without first holding an evidentiary hearing with testimony.

The Supreme Court disposed of this issue by applying waiver doctrine:

  • At the outset of the hearing, the circuit court proposed to proceed by legal argument, noting the facts were straightforward and the issues were mainly legal.
  • The parties, including the Wendts, did not object to this procedure.
  • No party requested the opportunity to present live testimony or additional evidence.

The Court therefore held that any error in proceeding without an evidentiary hearing was waived, relying on:

  • Maples v. W. Va. Dep’t of Com., Div. of Parks & Recreation, 197 W. Va. 318, 475 S.E.2d 410 (1996), syl. pt. 1:
    “A litigant may not silently acquiesce to an alleged error, or actively contribute to such error, and then raise that error as a reason for reversal on appeal.”
  • Hopkins v. DC Chapman Ventures, Inc., 228 W. Va. 213, 719 S.E.2d 381 (2011), recognizing that silence can operate as waiver.

This reinforces a practical lesson: if a party wants live evidence (or objects to a paper-based injunction hearing), it must say so on the record. Silent participation in a streamlined procedure will bar later complaints on appeal.

4.3 Construction of the severance deed and the 500–foot surface-use restriction

Substantively, the Wendts argued that the severance deed’s 500–foot surface-use restriction barred MCCR (as coal owner) from undertaking activities—like plugging operations—within 500 feet of their dwelling. They also emphasized the deed provision allowing oil and gas wells to be drilled through the coal seam.

The Supreme Court approached deed interpretation under the familiar principle from syllabus point 1 of Maddy v. Maddy, 87 W. Va. 581, 105 S.E. 803 (1921):

In construing a deed, “it is the duty of the court to construe it as a whole, taking and considering all the parts together, and giving effect to the intention of the parties wherever that is reasonably clear and free from doubt, unless to do so will violate some principle of law inconsistent therewith.”

Key features of the severance deed:

  • Oil and gas rights were reserved, including the right to drill for oil and gas through the coal.
  • But the deed provided that oil and gas recovery “shall not in any manner interfere with the mining” of the coal. This language strongly favors the coal owner’s right to mine without being obstructed by oil and gas facilities like wells.
  • The coal owner was restricted from “use or occupation” of the surface within 500 feet of principal buildings or residences, a protective buffer for the surface owner.

The Court’s reasoning on this point was careful and limited:

  1. Plugging is not itself “coal mining”: The Court accepted, at least for preliminary purposes, that plugging Well 3403 is regulated under the West Virginia Oil and Gas statutes (West Virginia Code §§ 22-10-1 to -12, governing plugging of abandoned wells), not as a coal-mining operation.
    • Thus, the mere fact that the coal owner requires the plugging to proceed with mining does not “automatically convert” plugging into a coal mining operation within the meaning of the deed.
  2. Plugging is not clearly “use or occupation” of the surface by the coal owner: The Court held that, on this record and at this stage, it could not conclude that the circuit court erred in treating plugging as outside the prohibited “use or occupation” category for the coal owner.
    • The Court underscored that there was no deed-based restriction on surface use for oil and gas operations.
    • Because WVLR held a wellbore assignment related to plugging (formally an oil-and-gas–related activity), and because plugging is regulated as oil and gas activity, the Court treated the operation as distinct from the coal owner’s direct surface occupation.
  3. Priority clause: mining cannot be interfered with by oil and gas recovery: The Court stressed that the original grantors expressly agreed that oil and gas activities must not interfere “in any manner” with coal mining. This gave MCCR a strong contractual position to demand that an interfering well be addressed.

The Court emphasized the limited posture: it did not hold categorically that plugging operations can never be a prohibited “use or occupation” by a coal owner within a 500–foot buffer. Rather, it held that, given the record and preliminary stage, it could not find error in the circuit court’s conclusion that plugging here was not such a prohibited coal-surface use.

4.4 Implied surface rights of the coal owner and necessity of plugging

The Court then placed the deed within the broader framework of West Virginia law on implied rights of mineral owners to use the surface.

4.4.1 Squires v. Lafferty

In Squires v. Lafferty, 95 W. Va. 307, 121 S.E. 90 (1924), the Court recognized that where the mineral estate has been severed from the surface:

  • The mineral owner holds implied rights to use so much of the surface as is “fairly necessary” to enjoy the mineral estate.
  • These rights are limited to what is reasonably necessary; they must be exercised with due regard to the surface owner’s interests.

4.4.2 Buffalo Mining Co. v. Martin

Buffalo Mining Co. v. Martin, 165 W. Va. 10, 267 S.E.2d 721 (1980), elaborates this doctrine:

  • Implied rights of the mineral owner must be:
    • Reasonably necessary for extracting the minerals, and
    • Exercised without imposing a substantial burden on the surface owner.

These cases are central to the Court’s analysis of MCCR’s “likelihood of success on the merits” for purposes of a preliminary injunction.

4.4.3 Application to MCCR’s request to plug Well 3403

Applying these precedents, the Court held that MCCR had made a sufficient preliminary showing that:

  • Plugging Well 3403 was “reasonably necessary” to extract the coal beneath the Wendt property.
    • The Hores affidavit explained that mining could not lawfully or safely proceed under the well without plugging.
    • Longwall mining under unplugged wells poses safety risks and regulatory obstacles.
  • Plugging would not impose a substantial burden on the surface owner, at least as shown in the current record:
    • The Court noted that the Wendts had alternative gas service for their residence by the time of the hearing.
    • Plugging is a finite, regulated operation; the Court implicitly regarded the temporary disruption as comparatively small relative to MCCR’s mining interest.

The Court concluded that, under Squires and Buffalo Mining, MCCR had shown a “reasonable likelihood of success on the merits” that:

  • Its implied surface rights allowed it, directly or through an affiliate, to require plugging of an interfering well; and
  • Those rights coexisted with the deed’s explicit limitations, particularly where the deed also insisted that oil and gas operations not interfere with coal mining.

This aspect of the decision is the most significant substantive point: at least at the preliminary injunction stage, the Court accepted that a coal owner’s implied rights, combined with contractual priority of coal mining over oil and gas recovery, can justify compelling plugging of an overlying gas well, even near a residence and despite a general surface-use buffer for coal operations.

4.5 Irreparable harm, absence of an adequate remedy, and balancing of equities

4.5.1 Irreparable harm to MCCR and lack of adequate legal remedy

The Hores affidavit described several harms if Well 3403 were not timely plugged:

  • Regulatory and safety constraints: Without plugging, MCCR could not proceed with permitted longwall mining beneath the well, given safety and regulatory requirements.
  • Economic harm: Delays in mining and production scheduling could cause “incalculable” damages to MCCR’s operations and business plan.
  • Safety risks: The presence of a well not properly plugged increased the risk of methane gas migration and potential explosions in the mine.

The Supreme Court held that the circuit court did not clearly err in crediting these assertions and in finding:

  • A reasonable likelihood that MCCR would suffer irreparable harm (harm not readily compensable by money alone) if plugging did not proceed on time.
  • No adequate remedy at law, because:
    • Future lost production, safety threats, and disruption of mine plans are difficult, if not impossible, to fully measure after the fact.
    • Even if some monetary compensation were theoretically calculable, the law recognizes that safety risks and regulatory compliance issues justify preventive relief.

4.5.2 Harm to the Wendts versus harm to MCCR

The balance of hardships required the court to assess and weigh:

  • The harm to MCCR if the injunction were denied, versus
  • The harm to the Wendts if the injunction were granted.

On the record available, the Court highlighted:

  • The Hores affidavit’s depiction of significant operational and safety harms to MCCR.
  • The representation (apparently undisputed) that the Wendts had secured an alternative gas supply, substantially reducing the personal hardship from losing free gas from Well 3403.
  • The availability of legal remedies for the Wendts (e.g., potential claims on the injunction bond or future damages claims in the underlying case), contrasted with the limited practical ability of MCCR to mine without plugging the well.

Consequently, the Supreme Court agreed that the circuit court had not abused its discretion in concluding:

  • The equities favored MCCR, and
  • The latent harms to MCCR and to miner safety outweighed the harms asserted by the surface owners in this preliminary phase.

4.6 Public interest and statutory context

The circuit court, and the Supreme Court in affirming it, cited statutory policies favoring:

  • Full and safe recovery of coal and gas, notably West Virginia Code § 22C-8-1;
  • Proper plugging and abandonment of wells at the time of abandonment, under West Virginia Code § 22-10-2(b); and
  • Respect for private property rights and enforcement of contracts.

The Court further noted that plugging operations are regulated as oil and gas activities under West Virginia Code §§ 22-10-1 to -12, not as coal-mining operations. This supported two conclusions:

  1. Plugging Well 3403 is an activity squarely within the state’s regulatory scheme to ensure proper closure of wells, which the public interest strongly favors.
  2. Classifying plugging as oil-and-gas regulatory activity (rather than coal mining) supported the circuit court’s interpretation that the 500–foot coal-surface buffer did not automatically apply to these operations.

Taken together, these policies justified treating the injunction as serving not just the private interests of MCCR and WVLR, but the public interest in:

  • Environmental and miner safety;
  • Orderly and efficient energy production;
  • Clarity in the relationship between coal and gas operations in split-estate situations.

4.7 Issues the Court deliberately declined to decide

Because it could affirm based entirely on MCCR’s rights and harms, the Court expressly chose not to address several potentially significant issues. These remain open for future litigation and development in the trial court or in later appeals from final judgments.

4.7.1 WVLR’s rights under the wellbore assignment and Chambers Lease

The Wendts argued that:

  • WVLR’s assignment was constrained by the terms of the Chambers Lease, and
  • The circuit court improperly treated WVLR’s rights as if they were identical to MCCR’s coal-mining rights.

The Supreme Court avoided deciding:

  • Whether the wellbore assignment could expand or contract rights under the existing lease;
  • How the free-gas provisions and other lease clauses affect the parties’ rights post-assignment; or
  • Whether WVLR could independently obtain injunctive relief on the basis of its assignment-based interests alone.

By focusing solely on MCCR, the Court implicitly held that when one party to a multi-plaintiff case satisfies the standards for a preliminary injunction, questions about another party’s independent standing or contractual rights can be left for another day.

4.7.2 Application of West Virginia Code § 36-4-9a (presumption of abandonment)

The Wendts contended that the circuit court misapplied West Virginia Code § 36-4-9a, which creates a rebuttable presumption of intent to abandon an oil or gas well and its equipment after certain periods of nonuse (the opinion indicates a 24-month threshold).

They argued that:

  • The statute either should have applied to declare the well abandoned (or its equipment), or
  • The court’s reading of it improperly created a “presumption of non-abandonment” for periods under 24 months.

The Supreme Court, however, explicitly declined to address:

  • Whether § 36-4-9a applied on these facts;
  • How the presumption operates in disputes between surface owners and mineral operators; or
  • What evidentiary burden the statute imposes in determining abandonment.

Therefore, the decision does not establish any new substantive rules about abandonment of wells or equipment under § 36-4-9a; that topic remains unresolved in this litigation.

4.7.3 Alleged conflation of WVLR’s and MCCR’s harms

The Wendts also argued that the circuit court improperly aggregated harms claimed by WVLR (the plugging affiliate) and MCCR (the coal owner), such that neither entity independently qualified for injunctive relief.

The Supreme Court resolved the appeal solely by reference to MCCR’s harms and rights, effectively saying: even if WVLR stood alone, we do not need to reach that question, because MCCR by itself justifies the injunction. As a result:

  • The Court did not adopt or reject any rule about combining harms among affiliated entities.
  • Questions about the corporate structuring of mineral and surface operations (and how that affects injunctive relief) remain open.

5. Precedents and Authorities Cited: Influence on the Decision

The decision draws on a series of West Virginia cases, each playing a distinct role:

  1. Wyckoff v. Painter, 145 W. Va. 310, 115 S.E.2d 80 (1960):
    • Used to reject mootness: a case is not moot where a temporary injunction has been dissolved or circumstances have changed if there remains a potential cause of action on the injunction bond.
    • Here, despite Well 3403’s plugging, potential recourse on the $100,000 bond preserved a live controversy.
  2. Ne. Nat. Energy LLC v. Pachira Energy LLC, 243 W. Va. 362, 844 S.E.2d 133 (2020):
    • Provides the standard of review for preliminary injunctions (abuse of discretion, clear error, de novo on law).
    • Also quotes and reaffirms the substantive standard from Imperial Marketing.
  3. State ex rel. Donley v. Baker, 112 W. Va. 263, 164 S.E. 154 (1932):
    • Recited to underscore that injunctions rest in the circuit court’s sound discretion, considering the controversy and comparative hardship.
  4. State By & Through McGraw v. Imperial Marketing, 196 W. Va. 346, 472 S.E.2d 792 (1996):
    • Source of the modern four-factor preliminary injunction test applied here.
  5. Maples v. W. Va. Dep’t of Com., Div. of Parks & Recreation, 197 W. Va. 318, 475 S.E.2d 410 (1996), and Hopkins v. DC Chapman Ventures, Inc., 228 W. Va. 213, 719 S.E.2d 381 (2011):
    • Applied to hold that the Wendts waived their right to complain about the lack of an evidentiary hearing by silently acquiescing.
  6. Maddy v. Maddy, 87 W. Va. 581, 105 S.E. 803 (1921):
    • Guides the deed construction: the deed must be read as a whole to effectuate the parties’ intent.
    • Support for giving strong weight to the clause that oil and gas recovery must not interfere with coal mining.
  7. Squires v. Lafferty, 95 W. Va. 307, 121 S.E. 90 (1924), and Buffalo Mining Co. v. Martin, 165 W. Va. 10, 267 S.E.2d 721 (1980):
    • Form the backbone of the Court’s analysis of implied surface rights.
    • Establish that a mineral owner may use the surface as reasonably necessary to extract minerals, but must avoid imposing a substantial burden on the surface owner.
    • Here, they underpin the conclusion that MCCR has a reasonable likelihood of success on the merits: plugging is reasonably necessary for mining and does not, on this record, substantially burden the surface owner.

The Court also references:

  • West Virginia Code §§ 22-10-1 to -12 (plugging of abandoned wells),
  • West Virginia Code § 22C-8-1 (public policy favoring full and safe recovery of coal and gas), and
  • West Virginia Code § 22-10-2(b) (policy encouraging proper plugging of wells).

And while West Virginia Code § 36-4-9a (rebuttable presumption of abandonment) is central to the Wendts’ arguments, the Court expressly takes no position on its application at this stage.

6. Simplifying Key Legal Concepts

6.1 Severance deed and split estates

In West Virginia, it is common for:

  • The surface estate to be owned by one party; and
  • The subsurface mineral estates (coal, oil, gas) to be owned by others, often via separate deeds or reservations.

When the original landowner “severs” the mineral estate from the surface estate, a severance deed describes each party’s rights. Here:

  • The 1902 deed separated the coal rights from the rest of the property.
  • The same deed preserved oil and gas drilling rights but subordinated them to the coal mining rights.

This structure generates the core tension in this case: who controls the surface when coal mining and oil and gas development conflict?

6.2 Implied surface rights of mineral owners

When the mineral estate is severed from the surface, the law implies that the mineral owner has certain automatic rights to use the surface – even if the deed is silent – because:

  • Minerals cannot be extracted without some use of the surface (roads, shafts, well pads, etc.).
  • Courts imply those rights as necessary to make the mineral estate meaningful.

But those implied rights are limited:

  • They must be reasonably necessary to extract the minerals; and
  • They must not impose a substantial or unreasonable burden on the surface owner.

In this case, “reasonably necessary” means: is plugging Well 3403 truly required for MCCR to mine its coal estate as permitted and in compliance with safety regulations? The Court accepted that MCCR showed such necessity on the preliminary record.

6.3 Wellbore assignment

A wellbore assignment transfers rights in the physical wellbore (the hole, casing, and associated equipment) without necessarily transferring:

  • Underlying oil and gas rights in the reservoir;
  • Deeper rights; or
  • The entire leasehold estate.

Here, Leatherwood’s assignment to WVLR:

  • Gave WVLR rights solely for plugging, dismantling, removal, reclamation, and abandonment.
  • Did not transfer production rights or other mineral interests.

This allowed MCCR (through its affiliate WVLR) to manage the well in coordination with coal operations, especially plugging in advance of mining.

6.4 Preliminary injunction

A preliminary injunction is a temporary court order issued early in a case to:

  • Preserve the status quo or prevent serious harm before the court can fully adjudicate the case.

To obtain it, the moving party must show:

  1. Irreparable harm (harm that cannot be adequately remedied by money damages later),
  2. No adequate remedy at law,
  3. Likelihood of success on the underlying claims (not certainty, but a reasonable likelihood), and
  4. That the balance of hardships and public interest favor granting the injunction.

In this case:

  • MCCR claimed that without immediate plugging, it would face an unsafe and unlawful mining environment and “incalculable” economic harm, which could not be fixed later with money alone.
  • The Court agreed that, preliminarily, this justified requiring the surface owners to allow plugging to proceed.

6.5 Mootness and injunction bonds

A case is typically “moot” if events make the requested relief no longer applicable or necessary. However, if the party that was enjoined may later seek compensation on the injunction bond (the bond posted by the party who sought the injunction), the controversy may remain “live” because:

  • A court must still decide whether the injunction was properly issued and whether the enjoined party may recover on the bond.

Here, even after Well 3403 was plugged, the $100,000 bond left room for potential future litigation over whether the injunction was wrongful – so the appeal was not moot.

6.6 Abandonment presumption under West Virginia Code § 36-4-9a

Though not decided in this opinion, West Virginia Code § 36-4-9a deals with a rebuttable presumption of intent to abandon an oil or gas well and its associated equipment after a specified period of non-use (the opinion refers to a 24-month period).

“Rebuttable presumption” means:

  • The law will assume something is true (here, intent to abandon) unless evidence is introduced to show otherwise.

The Wendts wanted this presumption applied to argue that Well 3403 and its equipment had been abandoned by the lessee, potentially affecting who had rights to control plugging or use free gas. The Court explicitly left these questions for another day.

7. Likely Impact and Future Developments

7.1 Substantive impact in mineral and energy law

Although issued as a memorandum decision, the case has several practical implications for West Virginia mineral law:

  1. Priority of coal over oil and gas under certain deed language.
    • Where a severance deed states that oil and gas operations “shall not in any manner interfere with the mining” of coal, coal owners can invoke that clause to demand removal or mitigation of surface structures (like wells) that impede mining.
    • The Court’s treatment of this clause gives coal owners a strong textual basis for similar arguments in future conflicts.
  2. Plugging as “reasonably necessary” for coal mining.
    • This decision supports the idea that plugging legacy oil and gas wells is part of the coal owner’s implied right to use the surface where plugging is required for safe, lawful mining.
    • Longwall mining under old wells is a recurring issue in coal-producing regions; this case supports coal operators’ ability to compel plugging when safety and regulatory compliance demand it.
  3. Interplay between 500–foot surface-use buffers and operational necessities.
    • The Court did not categorically resolve whether all plugging operations within a 500–foot buffer are permissible.
    • But it signaled that where plugging is an oil-and-gas–regulated activity undertaken to honor contractual priority of coal mining, courts may be willing to treat it differently from traditional coal-surface “occupation.”

7.2 Procedural and litigation practice impacts

  1. Waiver of evidentiary hearings in injunction proceedings.
    • Parties who wish to present evidence at preliminary injunction hearings must say so explicitly.
    • Silently proceeding on legal argument alone will likely bar later appellate complaints about the absence of testimony.
  2. Appellate narrowness and multi-party cases.
    • The Court’s approach illustrates that where multiple plaintiffs seek injunctive relief, an appellate court may affirm based on the showing of one plaintiff alone.
    • This makes it harder for appellants to overturn an injunction by attacking only one party’s standing or harms if another party independently satisfies the standard.
  3. Strategic use of injunction bonds.
    • The decision underscores that injunction bonds can preserve a live controversy even after the underlying act (here, plugging) has occurred.
    • Both plaintiffs and defendants should consider the potential for post-injunction bond litigation when crafting relief and posting bond amounts.

7.3 Open issues likely to generate further litigation

Several key questions remain unresolved and are likely to be explored in the underlying circuit court proceedings and possibly later appeals:

  • How West Virginia Code § 36-4-9a’s presumption of abandonment applies to:
    • “Shut in” (temporarily closed) wells versus permanently abandoned wells;
    • Rights of surface owners versus lessees and assignees; and
    • Allocation of rights to equipment and free gas.
  • The precise scope of WVLR’s rights under the wellbore assignment versus the original Chambers Lease.
  • The extent to which surface-use buffers in severance deeds constrain necessary safety-related or regulatory operations (like plugging) carried out by or for a coal owner.
  • Whether Leatherwood or deeper-rights holders are indispensable parties as the merits of various declaratory and damages claims are litigated.

8. Conclusion

This memorandum decision in Wendt v. West Virginia Land Resources, Inc. and Marshall County Coal Resources, Inc. affirms a preliminary injunction compelling surface owners to allow plugging of a legacy gas well to enable longwall mining of the underlying coal. The Court’s holding is narrow and explicitly provisional, but it clarifies several important points:

  • Parties waive objections to the absence of evidentiary hearings if they silently acquiesce in argument-only proceedings.
  • A coal owner, relying on implied surface rights and deed language prioritizing coal over oil and gas recovery, may—at least preliminarily—demand plugging of an interfering gas well where such plugging is reasonably necessary for safe and lawful mining.
  • Plugging operations are regulated as oil and gas activity and are not automatically treated as prohibited “coal mining” surface use for purposes of 500–foot residential buffers in severance deeds.
  • The familiar four-factor preliminary injunction test (irreparable harm, lack of adequate remedy, likelihood of success, and balancing of equities/public interest) remains central, and courts retain broad discretion in applying it in complex mineral disputes.

While many substantive questions about lease assignment, abandonment, and the full scope of WVLR’s rights remain to be decided in the ongoing litigation, this decision underscores the practical reality that, in West Virginia’s split-estate regime, coal owners can often assert powerful rights to ensure that legacy oil and gas infrastructure does not impede the full and safe extraction of their coal, especially when supported by express deed language and public safety considerations.

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