Phillips v. Fox
Annotate this Case
January 1995 Term
___________
No. 22195
___________
DON PHILLIPS,
Appellant
v.
STEVEN FOX AND DEBRA FOX, HIS WIFE,
AND MABEL FOX,
Appellees
AND
MABEL FOX,
Appellee
v.
DON PHILLIPS,
Appellant
___________________________________________________
Appeal from the Circuit Court of Randolph County
Honorable John Henning, Judge
Civil Action No. 91-C-124 and 91-C-128
REVERSED AND REMANDED
___________________________________________________
Submitted: February 28, 1995
Filed: April 14, 1995
David R. Rexroad
Steven B. Nanners
Rexroad & Rexroad
Buchannon, West Virginia
Attorneys for the Appellant
J. Thomas Lane
Charles B. Dollison
Bowles Rice McDavid Graff & Love
Charleston, West Virginia
Attorneys for the Appellees
JUSTICE McHUGH delivered the Opinion of the Court.
Justice Brotherton did not participate.
Judge Fox sitting by temporary assignment.
SYLLABUS BY THE COURT
The grant of a right to surface mine may be express or
implied. The right to surface mine will only be implied if it is
demonstrated that, at the time the deed was executed, surface
mining was a known and accepted common practice in the locality
where the land is located; that it is reasonably necessary for the
extraction of the mineral; and that it may be exercised without any
substantial burden to the surface owner.
McHugh, Justice:
This is an appeal from the August 24, 1993 order of the
Circuit Court of Randolph County prohibiting appellant, owner of a
severed mineral estate, from conducting surface miningSee footnote 1 activities
on appellees' surface estate absent an express right to do so.See footnote 2
This Court has before it the petition for appeal, all matters of
record and the briefs and argument of counsel. For the reasons
stated below, the order of the circuit court is reversed and this
case is remanded.
I
Factual and Procedural Background
The parties herein, appellant, Don Phillips, and
appellees, Steven and Debra Fox and Mabel Fox, jointly stipulated
and agreed to the following facts, all of which were adopted by the
circuit court in its August 24, 1993 order:
By order of the Circuit Court of Randolph County, dated
August 29, 1988, Davis Elkins v. Paul Phillips, et al. and Davis
Elkins v. Don Phillips, et al., Civil Action Numbers 88-C-98 and
88-C-192, respectively, were consolidated and suit was instituted
for the partition of seven tracts of land located in Middle Fork
District, Randolph County, West Virginia. The tracts were owned
jointly by the parties to the consolidated suit. In its order of October 3, 1988, the circuit court determined "the seven tracts of
land [to be] so varied in composition and [to] have such diverse
fractional ownership interests that partition cannot be
conveniently made[.]" It, accordingly, ordered "that a partition
sale of the real estate . . . shall be had without the appointment
of commissioners to independently determine the susceptibility of
the property for partition."See footnote 3 (footnote added).
The circuit court, by order of November 1, 1988, ordered
the partition sale to take place on November 12, 1988 at the
Randolph County Courthouse, Elkins, West Virginia. The circuit
court entered no other orders concerning how the property was to be
sold.
The subject real estate was advertised for sale in "The
Inter-Mountain," a newspaper of general circulation in Randolph
County, once a week for three successive weeks.See footnote 4 At the real
estate sale, held on November 12, 1988, the special commissioners
offered first the surface of each tract for sale and then the
minerals underlying each tract. However, no definition was given
either the word "surface" or "minerals" nor was mention made of any
rights which were being sold with the minerals, particularly as
such rights might affect the surface.
Appellees were the high bidders for the surface, offering
the sum of $248,000, while appellant was the high bidder for the
minerals, offering $13,500. Following the bidding, on November 18,
1988, the respective purchasers paid the amount of their bids,
which were accepted by the special commissioners.
One of the special commissioners, Stephen Jory, prepared
the deeds for the purchasers, at which time appellant requested
that his deed include language giving him rights to mine the coal.
The issue of mining rights was addressed but not resolved at a
hearing held in conjunction with confirming the sale of the surface
and minerals. The circuit court, at the December 19, 1988 hearing,
deferred ruling upon the issue of mining rights, including whether
surface mining would be permitted under the proposed deed. By
order entered December 19, 1988, the circuit court confirmed the
sales of both the surface and minerals and directed the special
commissioners to deliver deeds to the respective purchasers.
Accordingly, the special commissioners conveyed the
surface to appellee Mabel Fox and the underlying minerals to
appellant, each by deed dated December 19, 1988. Both deeds
contained the following reservation:
The Special Commissioner [sic] reserve,
for the benefit of the purchaser of the
minerals underlying the real estate herein
conveyed, the perpetual rights, privilege and
easement of entering onto the surface to
prospect, explore, mine, extract, produce,
store, procure, transport, market and dispose
of any and all of the oil, gas, coal and other minerals by any method or machinery now
employed.See footnote 5
(footnote added).
In addition to these stipulated facts, the record
indicates that on or about April 23, 1991, appellant went onto the
surface and attempted to drill test holes in the strata and
overburden in order to determine the coal's feasibility for mining.
Appellees resisted appellant's presence on their land and his
attempt to drill holes in it and to commence surface mining
operations.See footnote 6 Both the appellant and the appellees moved for
temporary restraining orders, each against the other and, by order
of May 6, 1991, following a hearing on the matter, the circuit
court ordered the following: that the cases be consolidated; that
appellant complete within two days the drilling of "test holes" to
determine the feasibility of coal mining, without interference from appellees; that, upon completion of the drilling, all equipment
used for testing be removed from the surface; that the surface be
reclaimed; and that appellant refrain from conducting "any further
prospecting or other acts associated with mining operations" until
the rights of the respective parties are determined.
The parties subsequently sought a declaration from the
circuit courtSee footnote 7 interpreting the two deeds and, particularly, the
appellant's right to mine and extract the coal by the surface
mining method. Following a hearing on the matter, the parties
submitted the aforementioned stipulated facts and agreed that the
court should decide the case based upon such stipulated facts,
memoranda and pleadings. Accordingly, by order of February 10,
1993, the circuit court found that the "surface" conveyed to
appellees "includes all of the land from the space overhead to the
center of the earth except only for the oil, gas, coal and other
similar minerals which can be mined and extracted without
destruction of the surface[;]" that the "oil, gas, coal and other
minerals" conveyed to appellant "includes all of the oil, gas, coal
and other similar minerals which can be mined and extracted without
destruction of the surface." The order further stated that
"[o]wnership of the oil, gas and coal and other similar minerals as described in the deed to [appellant] . . . includes such rights to
use the surface for the extraction of the oil, gas, coal, and other
similar minerals as are reasonable and necessary, and such rights
do not include the right to destroy any portion of the surface by
surface mining, by removing support, or by any other mining method
or operation which would destroy the surface."
On February 19, 1993, appellant filed a motion for
reconsideration of the circuit court's February 10, 1993 order on
the basis that said order "fails to provide for findings of fact
and conclusions of law of the Court in order to determine the
reason for the Court's ruling." At the hearing on appellant's
motion for reconsideration, held on June 18, 1993, the circuit
court reconsidered the parties' arguments on the merits of the
case, and, for the first time, considered a motion that it should
correct a "scrivener's error" in appellant's deed, changing the
word "reserve" in the reservation clause to "grant." Also at the
hearing, the parties agreed to submit to the circuit court a
revised final order to supersede the previous one and to address
additional matters raised at the hearing.
In its final order of August 24, 1993, the circuit court
adopted and set forth the parties' stipulation of facts previously
filed and made numerous conclusions of law including, inter alia,
that based upon the facts and circumstances of the case, the
respective deeds issued by the special commissioners "must be
viewed as having conveyed the exact property which was sold at the
sale, without the addition of rights or imposition of burdens not expressly made a part of the sale."See footnote 8 (footnote added). It is from this order that appellant now appeals.
II
Standard of Review
In reviewing challenges to the findings and conclusions
of the circuit court, we apply a two-prong deferential standard of
review. We review the final order and the ultimate disposition
under an abuse of discretion standard, and we review the circuit
court's underlying factual findings under a clearly erroneous
standard. Questions of law are subject to a de novo review. See
syl. pt. 1, Burnside v. Burnside, No. 22399, ___ W. Va. ___, ___
S.E.2d ___ (Mar. 24, 1995).
When an action is tried upon the facts without a jury,
the circuit court "shall find the facts specially and state
separately its conclusions of law thereon . . . [and these]
[f]indings . . . shall not be set aside unless clearly
erroneous[.]" Fed. R. Civ. P. 52(a). "A finding is `clearly
erroneous' when although there is evidence to support it, the
reviewing court on the entire evidence is left with the definite
and firm conviction that a mistake has been committed." United
States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S. Ct. 525, 542, 92 L. Ed. 746, 766 (1948). However, a reviewing court
may not overturn a finding simply because it would have decided the
case differently, and it must affirm "[i]f the [circuit] court's
account of the evidence is plausible in light of the record viewed
in its entirety[.]" Anderson v. City of Bessemer City, North
Carolina, 470 U.S. 564, 573-74, 105 S. Ct. 1504, 1511, 84 L. Ed. 2d 518, 528 (1985). Finally, "[w]hen findings are based on
determinations regarding the credibility of witnesses, Rule 52(a)
demands even greater deference to the trial court's findings[.]"
470 U.S. at 575, 105 S. Ct. at 1512, 84 L. Ed. 2d at 529.
Appellate oversight is therefore deferential, and we
review the trial court's findings of fact following a bench trial,
including mixed fact/law findings, under the clearly erroneous
standard. If the trial court makes no findings or applies the
wrong legal standard, however, no deference attaches to such an application.See footnote 9 Of course, if the trial court's findings of fact are
not clearly erroneous and the correct legal standard is applied,
its ultimate ruling will be affirmed as a matter of law.
Where findings of fact and conclusions of law are not
sufficient as required by law, this Court has authority to remand
for further consideration. See Commonwealth Tire Co. v. Tri-State
Tire Co., 156 W. Va. 351, 193 S.E.2d 544 (1972); Chandler v. Gore,
170 W. Va. 709, 296 S.E.2d 350 (1982) (cases decided under W. Va.
R. Civ. P. 52).See footnote 10 Because the trial court failed to make specific
factual findings that we believe are necessary under today's
holding, we find it is necessary to remand this case for a new
hearing.
III
Discussion
In his first assignment of error, appellant maintains
that, in the deed which conveys to him the minerals underlying the
surface estate and which reserves for his benefit "the perpetual right, privilege and easement of entering onto the surface to
prospect, explore, mine, extract, produce, store, procure,
transport, market and dispose of any and all of the oil, gas, coal
and other minerals by any method or machinery now employed[,]" he
also received the right to surface mine the coal underlying the
surface estate. Appellant also contends that the special
commissioners were selling mining rights with the minerals and that
appellant and appellees contemplated the right to surface mine as
being included within said mining rights.
The circuit court ruled that absent an express provision
in the deed to the contrary, the appellant "does not have the right
to conduct surface mining operations or any other operations which
would destroy or remove the integrity or support thereof, because
this right is not both reasonable and necessary[.]" We believe the
circuit court used the wrong legal criteria and for this reason
erred in its ultimate determination.
As a general principle, ambiguities in a deed are to be
clarified by resort to the intention of the parties ascertained
from the deed itself, the circumstances surrounding its execution,
as well as the subject matter and the parties' situation at that
time. 23 Am. Jur. 2d Deeds § 221 (1983). See Ramage v. South Penn
Oil Co., 94 W. Va. 81, 118 S.E. 162 (1923); Oresta v. Romano
Brothers, Inc., 137 W. Va. 633, 73 S.E.2d 622 (1952); Brown v.
Crozer Coal & Land Co., 144 W. Va. 296, 107 S.E.2d 777 (1959). See
generally Bruen v. Thaxton, 126 W. Va. 330, 28 S.E.2d 59 (1943).
It is the court's duty then, to place itself in the situation of the parties, as near as may be, to determine the meaning and intent
of the language employed in the deed. See Grill v. West Virginia
R.R. Maintenance Auth., 188 W. Va. 284, 423 S.E.2d 893 (1992).
It is well-settled that ownership of a mineral estate
includes the right to enter upon and use the superjacent surface by
such manner and means as is fairly reasonable and necessary to
reach and remove the minerals. Squires v. Lafferty, 95 W. Va. 307,
121 S.E. 90 (1924); Buffalo Mining Co. v. Martin, 165 W. Va. 10,
267 S.E.2d 721 (1980); Robert Tucker Donley, The Law of Coal, Oil
and Gas in West Virginia and Virginia § 141a (1951). See James A.
Russell, What Coal Mining Rights Are Appurtenant?, 11 East. Min.
Law Foundation § 9.02[1] (1990); 54 Am. Jur. 2d Mines and Minerals
§ 210 (1971). Indeed, the circuit court and all of the parties
herein agree that this rule, which "is based upon the principle
that[,] when a thing is granted[,] all the means to obtain it and
all the fruits and effects of it are also granted." Squires, supra
at 309, 121 S.E.2d at 91 (holding that a coal lessee may enter upon
the surface estate to test, by drilling, the thickness of the coal
seam, we stated in syllabus point 1, that the mineral owner has
also "as incident to this ownership the right to use the surface
[of the land] in such manner and with such means as would be fairly
necessary for the enjoyment of the mineral estate.)" Accord
syllabus, Adkins v. United Fuel Gas Co., 134 W. Va. 719, 61 S.E.2d 633 (1950).
In West Virginia-Pittsburgh Coal Co. v. Strong, 129
W. Va. 832, 42 S.E.2d 46 (1947), a deed entered into in 1904 reserved to the grantor the surface estate and conveyed all of the
coal underlying it to the grantee. The coal owner maintained that
it had the right, incident to its ownership, to remove the coal and
"that if not by express grant then by necessary implication it has
the right to strip mine" a certain portion of the property because
such was the only feasible method of mining and removing the coal.
Id. at 843, 42 S.E.2d at 52.
This Court disagreed and determined, upon "reading the
instrument as a whole, that it was the manifest intention of the
parties to preserve intact the surface of the entire tract, subject
to the use of the owner of the coal 'at convenient point or points'
in order 'to mine, dig, excavate and remove all of said coal' by
usual method at that time known and accepted as common practice in
[that county]. We do not believe that this included the practice
known as strip mining." Id. at 836, 42 S.E.2d at 49.See footnote 11 (emphasis
added). Accordingly, we held that "[i]n order for a usage or
custom to affect the meaning of a contract in writing because
within the contemplation of the parties thereto, it must be shown that the usage or custom was one generally followed at the time and
place of the contract's execution." Id. at syl. pt. 1.
Similarly, in Brown v. Crozer Coal & Land Company, 144 W.
Va. 296, 107 S.E.2d 777 (1959), we found that three deeds, made in
1904, 1905 and 1907, respectively,See footnote 12 did not give owners of minerals
the "right to engage in improper mining such as would damage the
surface owned by others by auger mining,See footnote 13 a method of mining which
at the time of the creation of the mineral rights was not [a] usual
method of mining known and accepted as common practice . . . where
the lands in question are located." Id. at syl. pt. 8, in part
(footnote added). See also Oresta v. Romano Brothers, Inc., 137 W.
Va. 633, 73 S.E.2d 622 (1952).
A severance deed may, on the other hand, expressly permit
surface mining as a method of extracting underlying minerals. In
Roberts v. Powell, 157 W. Va. 199, 203, 207 S.E.2d 123, 126 (1974),
the grantors reserved "'all coal and mineral underlying the above surface lands and sufficient rights of way to properly mine all of
the said coal. The [grantee] shall be paid a reasonable damage for
all surface openings and water sinkings that may occur by any
mining operations[;]'" and further that "'all developing of the
unconveyed mineral rights . . . shall never be construed to permit
mining of the surface . . . by such means . . . known as
"stripping" without compensation for the surface destroyed[.]'"
(emphasis provided). See Tokas v. J. J. Arnold Co., 122 W. Va.
613, 11 S.E.2d 759 (1940) (landowner cannot prevent surface mining
when stripping rights have been expressly and unequivocally
excepted from a grant of the surface estate absent "statutory
inhibition, fraud or other vitiating circumstances." Syl. pt. 1,
in part, Id.)
It is appellant's contention that his right to surface
mine appellees' surface estate is based upon the intention of the
parties to the deed in December of 1988, the time of the grant of
the minerals. Appellant argues that, because surface mining was a
common method of mining and an accepted practice in Randolph County
at that time, he may therefore engage in such mining in order to
extract the underlying coal. Furthermore, though not parties to
appellant's deed, appellees were, nevertheless, fully aware of the
practice of surface mining and its effects on the surface.
Finally, appellant argues that the advertisement for the sale of
the property did not expressly state that surface mining rights
were excluded and not conveyed to the purchaser of the minerals.
See n. 4, supra. Accordingly, appellant is asking this Court to hold that where surface mining is a known method of mining and an
accepted, common practice in that locality, the right to surface
mine is included as an implied right,See footnote 14 incident to the ownership
of the underlying minerals.
It is not disputed that surface mining was a known and
accepted method of mining in Randolph County at the time the
appellant's deed was executed. However, this fact cannot be viewed
in isolation or without regard to our decision in Buffalo Mining
Co. v. Martin, supra, wherein we noted that our decision in Strong,
supra, was based on the "fundamental principle that a right to
surface use will not be implied where it is totally incompatible
with the rights of the surface owner." Buffalo Mining, 165 W. Va.
at 18, 267 S.E.2d at 725. In fact, "[o]ur past cases have
demonstrated that any use of the surface by virtue of rights
granted by a mining deed must be exercised reasonablySee footnote 15 so as not to unduly burden the surface owner's use." Id. at 18, 267 S.E.2d
at 725 (citations omitted and footnote added).See footnote 16
Finally, in Buffalo Mining, we concluded that "where
implied as opposed to express rights are sought, the test of what
is reasonable and necessary becomes more exacting, since the
mineral owner is seeking a right that he claims not by virtue of
any express language in the mineral severance deed, but by
necessary implication as a correlative to those rights expressed in
the deed." Id. at 18, 267 S.E.2d at 725. Accordingly, we held, in
syllabus points 2 and 3, respectively, of Buffalo Mining, supra:
Where there has been a severance of the
mineral estate and the deed gives the grantee
the right to utilize the surface, such surface
use must be for purposes reasonably necessary
to extraction of the minerals.
In order for a claim for an implied
easement for surface rights in connection with
mining activities to be successful, it must be
demonstrated not only that the right is
reasonably necessary for the extraction of the
mineral, but also that the right can be
exercised without any substantial burden to
the surface owner.
We hold, therefore, that the grant of a right to surface
mine may be express or implied. The right to surface mine will
only be implied if it is demonstrated that, at the time the deed
was executed, surface mining was a known and accepted common
practice in the locality where the land is located; that it is
reasonably necessary for the extraction of the mineral; and that it
may be exercised without any substantial burden to the surface
owner.
As we stated above, the parties do not dispute that, at
the time the deed was executed, surface mining was a known and
accepted practice in Randolph County, the locality where the land
is located. However, notwithstanding appellant's assertion to the
contrary, there is nothing in the record indicating that surface
mining is either reasonably necessary for the extraction of the
mineralsSee footnote 17 or that surface mining can be conducted without any
substantial burden to the surface owners. We, therefore, remand
this case to the circuit court so as to give the parties an
opportunity to more fully develop the record on this issue and to
present evidence as to whether surface mining is reasonably
necessary to extract the minerals underlying the surface and, if reasonably necessary, whether it can be exercised without any
substantial burden to the surface owners herein.See footnote 18
For the reasons stated herein,See footnote 19 the order of the Circuit
Court of Randolph County, dated August 24, 1993, is hereby reversed
and this case is remanded to the circuit court for proceedings
consistent with this opinion.
Reversed and remanded.
Footnote: 1
The terms "surface mining" and "strip mining" refer to
the same method of mining and are used interchangeably.Footnote: 2
The circuit court also denied appellant's motion to
correct a "scrivener's error" in the deed which conveyed to him
the minerals but "reserved" to him the right to mine.Footnote: 3
See W. Va. Code, 37-4-3 [1957].Footnote: 4
A copy of the advertisement was attached to the
parties' stipulation of facts. It described the land as follows:
"SALE OF PHILLIPS LAND[;] Public sale of valuable real estate[;]
3 tracts aggregating approximately 550 Ac., including timber;
additional small tract with house; several tracts of oil and gas
and 1 of coal to be sold separately."Footnote: 5
This reservation provision originally contained
language permitting the purchaser of the underlying minerals,
upon entering onto the surface, to extract them using any method
or machinery now "or hereafter" employed. At the December 19,
1988 hearing, the circuit court deleted the words "or hereafter."Footnote: 6
In an uncontroverted affidavit, appellee Steven Fox
stated that he and his mother, appellee Mabel Fox, bid on the
minerals at the partition sale, but did not attempt to outbid
appellant based on the assumption that the minerals had little
value and "that development of the minerals would not cause
destruction of the timberlands which [appellees] had just
purchased." Mr. Fox further stated that, when they purchased the
surface, they did not contemplate that any portion of it would be
destroyed by surface mining. Finally, he stated that the surface
estate, at the time the affidavit was taken, contained 1,650,000
board feet of timber valued at $173,230 and in the year 2009, the
next year the timber is scheduled to be harvested, it will
contain 3,850,000 board feet of timber to be valued at $869,588.
Footnote: 7
This case was decided pursuant to the Uniform
Declaratory Judgments Act, W. Va. Code, 55-13-1 et seq., even
though neither the trial court nor the parties identified the
action as such. W. Va. Code, 55-13-2 [1941] provides, in
relevant part, that "[a]ny person interested under a deed . . .
may have determined any question of construction or validity
arising under the instrument . . . and obtain a declaration of
rights, status or other legal relations thereunder."Footnote: 8
The circuit court further concluded that:
6. As a general rule, where title to
the surface is severed from the title to the
minerals, the right to mine the minerals by
surface mining, or any other method which
will destroy the surface, must be expressly
conveyed in order to exist. Brown v. Crozer
Coal & Land Company, 107 S.E.2d 777, 786
(W. Va. 1959); West Virginia-Pittsburgh Coal
Co. v. Strong, 42 S.E.2d 46, 50 (W. Va.
1947).
7. Absent an express grant of surface
mining rights, the owner of the surface is
entitled to the protection of the surface in
its natural state, and ownership of the
surface is subject only to necessary and
reasonable rights in the mineral owner to
mine. Buffalo Mining Co. v. Martin, 267 S.E.2d 721 (1980); Squires v. Lafferty, 121 S.E. 90 (W. Va. 1924). Such rights do not
include the right to destroy any substantial
portion of the surface by surface mining or
the employment of any other mining method
which would destroy the surface or the
integrity or support thereof.
8. The sale and resulting deed to
[appellant] included such implied rights as
are both reasonable and necessary to mine and
extract the minerals; however, such rights do
not include the right to destroy the surface
by surface mining or the employment of any
other mining method which would destroy the
surface or the integrity or support thereof.
9. In addition to the foregoing, the
deed to [appellant] did not convey any
express mining rights for the reason that the
deed failed to contain any operative words of
transfer. A reservation of rights does not
serve to convey rights and the word 'reserve'
will not operate in place of the words
'grant' or 'convey.' See Freudenberger Oil
Company v. Simmons, 75 W. Va. 337 (1914);
Chapman v. Carter, 46 W. Va. 69 (1899).
10. A 'scrivener's error' in a deed
involves a mutual mistake or error and a
court has authority to change a mistake or
error only in the event the mistake could be
shown to be mutual. Thus, if both parties
intended the [appellant's] deed to provide
for a 'grant' of surface mining rights as
opposed to use of the word 'reserve,' this
Court might have authority to rewrite the
deed as urged by [appellant]. The facts in
this case clearly indicate that this was not
the mutual intent of the parties, nor would
it reflect the sale which actually took
place.
. . . .
13. Under the facts of this case,
[appellant] does not have the right to
conduct surface mining operations or any
other operations which would destroy or
remove the integrity or support thereof,
because this right is not both reasonable and
necessary[.]
Footnote: 9
Appellate courts using the "abuse of discretion"
standard have suggested that the "deferential review ordinarily
inherent in that standard is modified by a closer review when the
appropriate criteria that are established . . . are in question."
Rum Creek Coal Sales, Inc. v. Caperton, 31 F.3d 169, 174 (4th
Cir. 1994) (citation omitted).Footnote: 10
Applying these principles to the facts of this case,
we are of the opinion that the circuit court's factual findings,
though not clearly erroneous, are insufficient to resolve this
case. For this reason, we find it necessary to vacate the
judgment of the circuit court and remand for further
consideration consistent with this opinion.
Footnote: 11
In Strong, we took note of the ill effects of the
practice of surface mining, which "'may and commonly does cause
soil erosion, stream pollution and the accumulation of stagnant
water, increases the likelihood of floods, destroys the value of
land for agricultural purposes, counteracts efforts for the
conservation of soil, water and other natural resources of the
state, and in general creates hazards dangerous to life and
property[.]'" Id. at 843, 42 S.E.2d at 52 (citation omitted).
Indeed, "in view of the surface violence, destruction and
disfiguration" which inevitably accompany surface mining, such
rights are not to be lightly or casually implied. Rochez
Brothers v. Duricka, 97 A.2d 825, 826 (Pa. 1953). See also
Wilkes-Barre Township School District v. Corgan, 170 A.2d 97, 100
(Pa. 1961).Footnote: 12
The 1904 deed granted "mineral rights in 'all
minerals' with 'all rights-of-way, of ingress and egress over,
across and through [said land] for the purpose of removing the
minerals & coal therefrom[.]'" Syl. pt. 8, in part, Brown,
supra. The 1905 deed granted "'all the coal and other minerals
and mineral substances . . . together with the right to mine and
remove said minerals in the most approved method[.]'" Id. The
1907 deed reserved "'all minerals . . . together with all
necessary and useful rights for the proper mining, pumping,
transporting of said minerals[.]'" Id.Footnote: 13
In Brown, the auger mining method and its effects
were briefly discussed: "[t]he purpose of using the auger method
of mining was to get the coal out and it made no difference to
the [mineral owner] that this method would split the [surface
owner's] land in two sections, the spoilage being over a mile in
length and up to 400 feet wide in places, that the timber on the
land in connection with the mining of the coal would be destroyed
or diminished in value." Id. at 309, 107 S.E.2d at 786.Footnote: 14
Notably, the Supreme Court of Ohio has expressly held
that "[t]he right to strip mine for coal is not implicit in the
ownership of a severed, mineral estate." Syl. pt. 2, Skivolocki
v. East Ohio Gas Company, 313 N.E.2d 374 (1974). "Because strip
mining is totally incompatible with the enjoyment of a surface
estate, a heavy burden rests upon the party seeking to
demonstrate that such a right exists." Id. at 378. In Compass
Coal Company v. Pennsylvania Game Commission, 454 A.2d 1167, 1169
(Pa. Commw. Ct. 1983), even though "strip mining was a known
practice [at the time] the property was conveyed," and the deed
reserved to the grantor "all coal[,]" the grantor failed to show
"that the parties [to the deed] intended to 'permit [the coal
owner] to come upon [the] land and turn it into a battleground
with strip mining.'" (citation omitted).Footnote: 15
As early as our decision in Squires v. Lafferty,
supra, we indicated that a mineral owner's right to use the
surface is not to be exercised without restraint. See
discussion, supra.Footnote: 16
In Buffalo Mining, a coal lessee erected on the
surface estate an electric transmission line to supply power to a
mine ventilation shaft. We held that the following express
language of the severance deed impliedly permitted such a power
line easement:
all proper and reasonable rights and
privileges for ventilating and draining the
mines and wells . . . together, also, with
the right of erecting and maintaining upon
said land all buildings, oil tanks,
machinery, telephone and telegraph lines, and
other improvements necessary or convenient
for the operations upon said lands . . .[.]
Id. at 11 n.1, 267 S.E.2d at 722 n. 1.Footnote: 17
We note that the transcript of the December 19, 1988
hearing suggests that it might even be physically impossible for
appellees' surface to, in fact, be surface mined. Other than
this brief exchange between the circuit judge and appellee Steven
Fox, there is nothing in the record regarding the feasibility of
surface mining or any other method of mining.Footnote: 18
We cannot ignore the unusual circumstances of this
case. Neither appellant nor appellees were in a position to
negotiate with the grantors, the special commissioners, the terms
of their respective deeds. The special commissioners severed
ownership of the land between the "surface" and the "minerals"
without defining those terms, without prior authority from the
circuit court and without specifying, either in the advertisement
or at the sale, whether surface mining rights would be included
in the sale of the minerals. The special commissioners sold, at
auction, first the "surface" for $248,000 and then the "minerals"
for the significantly lesser sum of $13,500.Footnote: 19
Appellant's second and final assignment of error
contends that the aforementioned reservation clause was
inadvertently included in his deed and that the circuit court
should have corrected this scrivener's error by changing the word
"reserve" to "grant" or "convey," thereby transferring to him the
right to surface mine the minerals. In light of our resolution
of appellant's first assignment of error, it is unnecessary that
we address this argument. We recognize the inclusion of the
reservation clause in appellant's deed to be highly unusual.
Nevertheless, even if this Court were to change the word
"reserve" to "grant" or "convey," appellant would still be
claiming the implied right to surface mine appellees' land.
Accordingly, as discussed above, appellant must demonstrate that surface mining was a known and accepted practice in Randolph County when the deed was executed; that surface mining is reasonably necessary to extract the coal; and that surface mining will not substantially burden the surface owners.
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