Cogar v. Sommerville
In Cogar v. Sommerville, 180 W. Va. 714, 379 S.E.2d 764 (1989), the mining company wished to conduct surface operations within 300 feet of an occupied dwelling, which, absent a proper waiver, is prohibited by the Act.
Although the mining company was the beneficiary of broad form waivers in deeds drafted in the early 1900's, we found that the old, broad form waivers were not sufficient under the modern Act. Consequently the Court held:
"A waiver of damages provision contained in a broad form coal severance deed is not the type of explicit waiver contemplated by and required by W. Va. Code 22A-3-22(d)(4), before mining operations can be lawfully conducted within three hundred feet of an occupied dwelling."