## Facts

- A 61-acre tract in Dickenson County, Virginia (the “Willis tract”) contained coal owned in undivided fractional interests by approximately 90 cotenants.
- About 85% of the cotenants executed coal leases to Chosar Corporation and William H. Drake, conveying their respective undivided interests and granting mining rights in merchantable coal seams.
- The leases also purported to grant Chosar the right to transport coal from adjoining lands through underground passageways on the tract.
- Chosar mined the most valuable coal seam (the “Splashdam seam”) and used underground passageways created by that mining to haul coal produced from adjacent land.
- Owens and other nonconsenting cotenants (collectively holding about 15%) did not lease their interests and objected to both the mining and the off-tract haulage through the underground passages.
- Owens filed suit seeking to enjoin (1) mining of the commonly owned coal without unanimous cotenant consent and (2) haulage of third-party coal through passageways created by such mining; the material facts were undisputed.

## Issues

1. Whether mining coal owned by cotenants, conducted without the consent of all cotenants, constitutes waste and exclusion of nonconsenting cotenants entitling them to injunctive relief.
2. If such mining constitutes waste and exclusion, whether consenting cotenants may authorize a third party to haul coal from adjoining lands through underground passageways created by the mining over the objection of nonconsenting cotenants.

## Decision

- The Supreme Court of Virginia affirmed the trial court.
- Mining the commonly owned coal without unanimous cotenant consent constituted waste and an exclusion of nonconsenting cotenants, supporting permanent injunctive relief and an accounting.
- Fewer than all cotenants could not authorize Chosar to use underground passageways in the commonly owned coal to haul coal from other lands over the objection of nonconsenting cotenants.

## Legal Principles

- Extraction of coal is a consumptive, permanent removal of the corpus of the mineral estate; when done without unanimous cotenant consent, it constitutes waste and wrongfully appropriates the nonconsenting cotenants’ undivided interests.
- Where waste causes ongoing, irreparable injury (coal cannot be restored once removed), equity may enjoin the conduct and require an accounting.
- A cotenant may transfer or lease only the cotenant’s own undivided interest and may not, without unanimous consent, authorize third-party uses that materially burden or appropriate the other cotenants’ interests in the common property.
- Use of underground haulage ways created by wasteful mining to transport coal from other lands is not a permissible nonunanimous license, particularly where it would allow the miner to profit from the fruits of the wrongful mining.

## Conclusion

The court held that nonconsenting cotenants may enjoin coal mining conducted without unanimous consent because it permanently destroys the shared mineral estate and excludes their interests, and it further barred nonunanimous cotenants from licensing third-party haulage through underground passageways created by the wrongful mining.


Chosar Corp. v. Owens, 370 S.E.2d 305 (Va. 1988)