69 So. 17 | Ala. | 1915
Appellants or their predecessors in title conveyed to appellee or its predecessors in title all the coal and minerals of whatever kind that, lie on or below the surface of certain lands described, “together with the right to mine said coal and other minerals, the right to use all necessary timber and water for such mining purposes, the right of way for all necessary roads, and all other rights and privileges which may be necesary for the proper mining and transportation of said minerals.” Appellee acquired from other parties lands adjoining those as to which appellants had conveyed the minerals and mining rights above described. Appellee opened an air shaft on the lands in question, constructed a fan thereon for the purpose of ventilating its coal mines which ramified the lands in question as well as other lands owned by appellee and acquired from third parties. The openings to the coal minés were on lands other than the ones in question, but the entries, following the seams of coal, had been extended to the- lands in question, and a part of the coal thereon had been mined; and these underground entries' which occupied the space from .which .the coal had been taken were used for laying tram tracks over which coal, not only from the lands in question but from other
“Prom such use of the haulageAvay and shaft defendant could have been restricted by contract, and this irrespective of Avhether the use is injurious; but there Avas express contract on the subject, nor is there in the terms of the deed by which the coal was conveyed to defendant anything from which such restriction can be implied. The expression of rights given defendant in that deed was of such rights only as were incident to the mining of the land therein mentioned. As to AAdiat use might be made of that land or of the haulageAvay or the shaft in the mining of other land, the deed is silent, and therefore the doctrine whereunder the expression in a contract of some rights is sometimes held to imply the exclusion of other rights does not here apply. Under these considerations, the court is brought to the conclusion that neither the complainant in the original bill nor the complainant in the cross-bill is en
“This case is distinguishable from that of Brasfield v. Burnwell Coal Co., 180 Ala. 185 [60 South. 382], Avhich involved a Avrongful use of the surface of lands by the holder of a lease for mining.”
In the case of Schobert v. Pittsburg Co., 254 Ill. 474, 98 N. E. 945, 40 L. R. A. (N. S.) 827, Ann. Cas. 1913B, 1104, it was decided that a grantee of coal in place, such as is appellee in this case, with irrevocable and perpetual license to mine and remove coal from the land in which the coal is located, had the right, as an incident of such license, to use the space made by mining the coal, for the purpose of removing coal taken from other and adjoining mines.
There are limitations to this rule and this right, such ■as pointed out by this court in the cases above cited. This.rule does not apply, of'course, to mere lessees of land, or of the surface, where the lease or grant is for the express purpose of transporting only the coal on or under such land; nor does it apply to cases where the time during which the right to so use the land is limited. Hence this case and cases like it must be distinguished from cases which fall within the limitations mentoned above, and others like them.
In a note to the Illinois case in 40 L. R. A. (N. S.) 826, we find the following as to the rule in cases like this: “It is generally held that a grantee of coal in place, with license to mine and remove it, in the absence of express stipulation may, at any time before the coal
“The right of tranporting coal from adjoining lands through or over leased land exists, however, only so long as the coal conveyed is in good faith being mined. It would be a perversion of the intention of the parties to use such passageways merely and only for the purpose of reaching other coal, and, besides, such use would be a continual menace to the stability of the surface. If such use were allowed, no owner of the land could tell when his estate would cease to be disturbed by workings underneath. The rule laid down in the above cases is not intended, therefore, to give the grantee of coal an undisputed and perpetual right of way under another’s land. The owner of the land above and below has a right to the reversion of the space occupied by the coal within a time contemplated by the parties when that coal is removed. — Webber v. Vogel, 189 Pa. 156, 42 Atl. 4, 19 Mor. Min. Rep. 639.
“So, when the grantee of coal in place has ceased to mine that coal to any appreciable extent, he may not, without an express grant of such right, extend the openings to the mines to adjacent lands, mine large quantities there, and use the - grantor’s land for loading and transporting such coal. — Hooper v. Dora Coal Min. Co., 95 Ala. 235, 10 South. 652.”
Affirmed.