92 So. 689 | Miss. | 1922
delivered the opinion of the court.
The appellant exhibited an original bill in the court below against the appellee, alleging that the appellee is the owner of certain land, and that he (the appellant) is the owner of the mineral therein; that-the land contains a large amount of gravel which the appellant has the right to remove, but which right the appellee denies and has forbidden him to exercise. The prayer of the bill is for a decree confirming the appellant’s title to the mineral in and upon the land and perpetually enjoining the appellee from interfering with his going upon the land and removing the mineral. The appellee’s answer by appropriate-allegations denies the right of the appellant to the relief sought for two reasons: First, he does not own the mineral in and upon the land; and, second, the gravel cannot be removed therefrom Avithout destroying the surface of the land. On final hearing a decree Avas rendered confirming the appellant’s title to the mineral in and upon the land, but refusing the injunction prayed for. From this decree the complainant has prosecuted a direct and the defendant a cross-appeal.
The appellant and the appellee both claim under a deed executed by H. T. and J. A. Moss to J. W. Coman, by AAdiich the grantors conveyed to Coman the land in question, the description thereof being followed by a general warranty clause, the deed then concluding as follows:
“It is hereby understood and agreed by the said J. W. Coman, party of the second part, that the said H. T. Moss and James A. Moss, parties of first part, shall have and oavii all minerals that may be on the above-described land.”
The appellee is uoav the owner of the land by mesne conveyances from Coman, and the appellant claims the mineral therein and thereon by mesne conveyances from 'the heirs of IT. T. and J. A. Moss. The surface of the land is underlaid Avith gravel of considerable value, is thin, covered Avith grass, undergroAA-th, and small trees, and is val-
Two questions are presented for decision: First, does the appellant own the gravel, and should that question be answered in the affirmative; second, has he the right to remove it when so to do will destroy the surface of the land.
1. One of the appellee’s contentions in support of his claim that the appellant does not own the gravel is that the clause in the deed from II. T. and J. A. Moss to Coman, under which the appellant claims to own the gravel, is repugnant to and inconsistent with the prior clause by which the land is conveyed. And he invokes the rule of construction that — “If there be in a deed earlier clauses which are repugnant and inconsistent with the later ones, í he 1 ormer shall prevail.”
This well-settled rule is subject to the equally well-settled qualification that an election cannot be made between repugnant and inconsistent clauses “if they can be made to harmonize with the general purpose and scheme of the parties as derived from the whole instrument.” Goosey v. Goosey, 48 Miss 210; Robinson v. Payne, 58 Miss. 690; Hart v. Gardner, 74 Miss. 156, 20 So. 877; Dunbar v. Aldrich, 79 Miss. 698, 31 So. 431; Massey v. Whittaker, 126 Miss. 99, 88 So. 518. This qualification of the rule controls here, for it is manifest from the face of the deed that the grantors intended thereby, and the legal effect of the language they employed is, to convey the land described therein except all mineral that may be therein or thereon.
The further contention of the appellee that the exception of the mineral in this deed is as large as the grant therein, and therefore void, is without merit; one- sufficient reason therefor being that there is no contention .that the land is, and in fact it is not, all mineral. The authorities supporting such an exception are legion, and, so far as we are aware,-there are none to the contrary. Tiffany on 'Real Property, pp. 866, 1609, and 1614.
The first, of these contentions invokes a rule applicable when the owner, of the surface is seeking an injunction restraining the owner of the mineral from removing it as was the case in Berkey v. Berwind, 220 Pa. 65, 69 Atl. 329, 16 L. R. A. (N. S.) 851, which is that the owner of the mineral in land will not be enjoined from removing it at the instance of the owner of the surface, but will be remitted to his action at law for damages, unless the injury that would result therefrom to the surface will be irreparable.
“The term 'irreparable’ has acquired in the law of injunctions a meaning which, perhaps, is not quite in keeping with the derivation of the word or its literal signification. There are injuries-incapable of being repaired which 'a court of equity does not regard as irreparable;. And, on the other hand, there are injuries that may be repaired which it will, nevertheless, treat as.irreparable, if the person inflicting or threatening them be insolvent or unable to respond in damages. As ordinarily used the term means that which cannot be repaired, restored, or adequately compensated for in money, or where the compensation cannot be safely measured. . . .
“An injury which tends to the destruction of an estate,*614 or which is of such a character as to Avork the destruction of the property as it has been held and enjoyed, Avill be treated as irreparable.” 14 R. O. L. pp. 346 and 347.
The essential features of an “irreparable injury,” are:
“(1) That the injury is an act Avhich is a serious change of, or is destructive to, the property it affects either physically or in the character in which it has been held and enjoyed. (2) That the property must have some peculiar quality or use such that its pecuniary value, as estimated by a jury, will not fairly recompense the owner for the loss of it. In the application of this test, however, there are many conflicting decisions. Thus, som’e courts treat land as per se property of peculiar value and will enjoin destructive trespasses to its substance without regard to the question Avhethér, in the particular case, it really does have any peculiar value or not. By these courts it is made a subject for protection by injunction, just as in cases of contract it is a subject for specific performance without reference to its quality, use or value.” 5 Pomeroy’s Equity, section 495.
This rule is very clearly announced in Bibby v. Bunch, 176 Ala. 585, 58 So. 916, as follows: “Where a threatened wrong would destroy the substance of the inheritance, ruin the estate, or permanently impair its future use in the manner in Avhich the owner is entitled to use and enjoy it, pecuniary compensation is inadequate, the injury is irreparable at law, and the interference of equity is demanded.”
An examination of the decisions of this court Avill disclose that it has always dealt with land as per se property of peculiar value, and as hereinbefore stated the removal of the gravel in the case at bar will destroy the surface of the road, consequently the injury that Avill thereby be inflicted on the appellee will be irreparable Avithin the meaning of that term as used in the law of injunctions. Moreover, the injury to the surface of the appellee’s land Avill not result from a single act, but from continuous and repeated acts, and the rule is that — “Where trespass to
It thus appears that the appellant would be enjoined at the request of the appellee from removing the gravel, consequently it must necessarily follow that the appel-lee will not be coerced by equity into permitting the appellant to remove the gravel.
The second rule invoked in this connection by counsel for the "appellant, that of comparing or balancing injury, has no application here for two reasons: First, the right of the owner of the surface of land to subjacent support therefor “is without regard to the comparative value of the strata.” 18 R. C. L. 1245; Marvin v. Brewster, 55 N. Y. 538, 14 Am. Rep. 322. Second, the appellee’s right to subjacent support for the surface of his land and the threatened breach thereof by the appellant are clear. Mining Co. v. Coal Co. (D. C.), 253 Fed. 107; 14 R. C. L. 359.
What the appellant requested the court below to do, in the last analysis, was to aid him in the commission of a tort, to-wit, to remove the subjacent support to the surface of the appellee’s land, and this a court of equity, of course, will not do.
It follows from the foregoing views that where one person owns the surface of land and another the mineral therein, and the mineral cannot be removed without destroying the surface, the owner of the mineral, in the absence of an agreement to the contrary, is without the right to remove it.
Affirmed.
