58 So. 916 | Ala. | 1912
In 1897 one Tanner, owning then the fee in a certain 40-acre tract of land, sold and conveyed the same to appellee, “all minerals and mining rights reserved.” This reservation operated as an exception of minerals and mining rights from the grant. — Webb v. Jones, 163 Ala. 637, 50 South. 887. In 1905 Tanner conveyed the minerals and mining rights to Mary Bibby, one of the appellants. In 1911 appellee filed her bill averring the facts stated above and in effect, after amendment, further charging that appellant Mary Bib-by and her husband had begun and were then actively engaged in joint mining operations for shale, which underlay the land, in the prosecution of which they had removed and destroyed the surface of a large area, to wit, one acre, and had stated to complainant their intention, in the future prosecution of their mining-operations, to “disturb, destroy and remove the surface and soil of all said forty acres of land save and except a very small area thereof.” It is averred that complainant’s estate in the surface, which is well timbered, abundantly covered with herbs and grasses, and valuable for agricultural and residential purposes, will
Shale is a mineral. — McCombs v. Stephenson, 154 Ala. 109, 44 South. 867.
Appellee does not deny that appellants acquired the right by the deed to Mrs. Bibby to sink shafts, slopes, drifts, or make openings of a character reasonably necessary and convenient for their mining operations, but the contention on behalf of appellee is that appellants have no right to go further, the result of which contention, if sustained in a case where the stratum of mineral lies so close to the surface that to mine it throughout its extent would necessarily destroy the surface in its natural state, Avould be that mineral so located could not be mined. But that seems to be the rule laid doAvn by the authorities and, in our judgment, it is sustained by the reason of the matter. Our OAvn cases say that the right to mine is servient to the right of the owner of the surface to have it perpetually sustained in its natural state. — Williams v. Gibson, 84 Ala. 228, 4 South. 350, 5 Am. St. Rep. 368; Sloss-Sheffield Co. v. Sampson, 158 Ala. 590, 48 South. 493; West Pratt Co. v. Dorman, 161 Ala. 389, 49 South. 849, 23 L. R. A. (N. S.) 805, 135 Am. St. Rep. 127, 18 Ann. Cas. 750. The doctrine is thus stated by the Supreme Court of Pennsylvania: “Where there has been a horizontal division of the land, the OAvner of the subjacent estate, coal or other mineral,
By Avay of illustrating what they hold to be the unfairness of appellee’s position appellants suppose — consistently Avith the averments of the bill, they think— that the surface which appellants’ further-operations in the manner contemplated by them will remove and destroy is composed of a soil only two or three inches thick. Hoav unreasonable it Avould be, they say, that the OAvners of the shale in such a case should be denied the right to destroy a natural surface of such inconsiderable value AA'hen at the end of their brief operations there Avould be left for appellee that vast domain extending usque ad coelum et ad inferos. In that case, probably no line of division between the surface and
This court has considered land as per se property of peculiar value, and has made it the subject of protection against trespasses destructive to its substance Avithout regard to the question Avhether, in the particular case, it really has any peculiar value or not, just as in cases of contract it is made a subject for specific performance Avithout regard to its quality, use, or value. Where a threatened Avrong would destroy the substance of the inheritance, ruin the estate, or permanently impair its future use in the manner in Avhieh the owner
The demurrer to appellee’s bill was properly overruled, and the chancellor’s decree will be affirmed.
Affirmed..