Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: MONDAY, February 17, 1992 TAG: 9202170200
SECTION: VIRGINIA PAGE: A-3 EDITION: METRO
SOURCE: GREG EDWARDS STAFF WRITER
DATELINE: LENGTH: Long
36 YEARS LATER, COAL SUIT GOES TO TRIAL
Thirty-six years ago, the descendants of a Wise County pioneer sued some big corporations over the ownership of a thousand acres of rich coal land.Tuesday, the heirs will finally get their day in court.
At stake for the descendants of mountain farmer Galen Roberts are royalty payments on thousands of tons of the best bituminous coal anywhere in the world.
"It was a mountain of coal, is what it was," said Paul Roberts of Coeburn, a great grandson of Galen.
At issue are 13 seams of coal, he said, from the banks of Guest River to the top of big Black Mountain, which separates Virginia from Kentucky, about 160 miles west of Roanoke.
The Roberts heirs who filed the suit in 1955 are dead. Seven different judges have presided in the case. Many of the two dozen or so lawyers involved over the years have retired or died, and at least one has become a judge.
The defendants include some of Virginia's biggest coal corporations and a Norfolk Southern subsidiary. But many will be culled from the suit if it moves past its first phase next week.
The big back payment - if the court rules there should be one - could fall on Penn Virginia Corp., a Philadelphia company that controls thousands of acres of Virginia coal land. Penn Virginia, the Roberts heirs' lawyers say, is the company that has been collecting royalties on coal mined from the disputed land.
Why has this case taken more than three decades to come to trial?
Unlike the situation in federal court, a case in state court doesn't move unless someone pushes it; and sometimes the lawyers in this case weren't pushing, according to Gerald Gray, a Clintwood lawyer who represents a fraction of the hundreds of heirs.
Gray was 7 when the suit was filed.
During the past two years, the Virginia Judicial Council has issued voluntary guidelines that suggest that 90 percent of the civil cases filed in Virginia courts should be tried within a year.
Before Paul Roberts helped resurrect his family's case in 1978, it had lain dormant for a long time.
Since then, there have been more delays while part of the case was before the Virginia Supreme Court, while a search was made for more heirs, and while lawyers for both sides sought evidence from each other through the discovery process.
About 10 years ago, the circuit judge then presiding over the case said he wanted to limit the plaintiffs to those people who had originally filed the suit and their descendants. The issue went to the state Supreme Court, which ruled that any heirs could join the suit until a 10-year statute of limitations expired in 1983.
Galen Roberts had 11 children, 91 grandchildren and scores of great- and great-great-grandchildren. According to Kaestner, at least 479 of his heirs are involved in the lawsuit.
In the 1840s, Galen Roberts' father, Lewis, a Revolutionary War soldier who was born in Scotland, brought his family to northwestern Wise County near where Critical Fork and Bad Branch run into the Guest River. They raised hogs and sheep on hundreds of acres owned by Lewis and his sons.
Galen Roberts had added to his holdings by the time a couple of coal speculators, Andrew Jackson Steinman Jr. of Lancaster, Pa., and J.D. Price of Rockingham County, came calling in 1874.
It was a time when speculators and agents for railroads and Northern industrialists had begun to swarm over the Central Appalachians, buying up or leasing the rights to rich coal and gas lands from mountain people, most of whom had no idea of the value of the resources.
Many mountain residents sold their land to these companies for $1 an acre, but Galen Roberts appeared to be a little smarter than that.
On Sept. 19, 1874, Roberts leased for 99 years to Steinman and Price the mineral rights to a 1,000-acre hourglass-shaped tract spanning the Guest River. For the lease, Roberts asked a consideration of $1 plus a 10-cent royalty on each ton of coal mined.
The document, bearing Galen Roberts' mark, was recorded in the Wise County Courthouse two days later.
The key question in the lawsuit - the issue that will be taken up first on Tuesday - centers on the lease. The dispute boils down almost entirely to the legal question of whether the signing of the 99-year lease split the mineral rights from the surface rights to the land, according to Gray, the Clintwood lawyer who represents some of the heirs.
The severing of the mineral rights from the surface rights is important because Galen Roberts later sold portions of his land to individuals and coal companies, Gray said. The entire surface area of the property now appears to be in the hands of Penn Virginia, although Paul Roberts has his doubts about the validity of the company's deed.
Gray said Virginia law at the time the lease was made should determine who owns the mineral rights and is entitled to royalties from the mining of coal. Gray and Joe Kaestner, a Richmond lawyer who represents most of the heirs, are optimistic they will win on this point.
But the heirs are headed for disappointment, said Henry Keuling-Stout, a Big Stone Gap lawyer, who has represented the defendant companies since 1975.
The lease can't have split the coal rights from the surface rights because, at the end of the lease, Roberts or his successors could have expected to get the coal rights back, Keuling-Stout said. "You can't have a severance if you don't get rid of anything."
So when Roberts' land was sold to the coal companies - much of it by Roberts himself - the mineral lease went along with the sale, Keuling-Stout said.
In order to prevail, the heirs must convince Circuit Judge Don Mullins of Tazewell that they own the minerals. If they succeed, the trial would focus on identifying the rightful heirs and determining how much in royalties they are due.
No coal was mined from the land in Galen Roberts' lifetime. He was killed in 1891 in a shootout arising from a feud between the Roberts and Gardner clans that left two other men dead and four wounded.
Following Galen's death, most of his children moved away from the Wise County area. Some settled in Missouri, and other descendants made their way to California and Florida.
No significant amount of coal was mined on the property until 1943, when the land was subleased to Old Ben Coal Co. Old Ben mined on the property until 1973, which - through coincidence or not - was the year Roberts' lease to Steinman and Price was to expire.
Since 1943, roughly 30,000 tons of coal a month have been mined, estimates Kaestner, the Richmond lawyer working for the heirs. He figures the amount of royalties due to the heirs up to the point of the lease's expiration was roughly $8 million.
Mining by other companies has continued at similar levels on the property since 1973, and the money owed the heirs for that coal presents a "whole new ball game," Kaestner said. The current going rate for coal royalties is $1 to $2 a ton.