*1 JJ., Kennedy, O’Neill, C.J., O’Donnell, concur.- DeWine, and O’Connor, having been appeal would dismiss J., dissents Pfeifer, accepted. improvidently District, J. sitting for J., French, Appellate of the First DeWine,
Pat L.L.C., Dingus, appellees. and M. Shawn Dingus, & Plymale Garner, appellant. Richard M. Young and Davis & for amicus urging reversal Neal, L.L.C., Timothy Fitzgerald, J. Koehler Attorneys. of Civil Trial curiae Association Ohio and Michael Pease, L.L.P., Szykowny, Thomas E. Sater, Seymour &
Vorys,
Institute.
curiae
Insurance
Thomas,
for amicus
Ohio
urging reversal
Deptartment
Snyder
al., Appellants,
v.
et
Ohio
Appellees.
al.,
et
Natural
Resources
Dept.
Snyder
Resources,
of Natural
[Cite as
322,
seek owns the surface and the state they own the mineral tract of land to which granted when it pleas of common erred the court rights. We conclude against them. summary judgment
Background This case summary was decided on judgment by the court of common pleas. Accordingly, novo, “our review is de accordance with the standard set *2 forth in Petrosurance, Inc., Civ.R. 56.” Hudson v. 54, 2010-Ohio- ¶ 936 N.E.2d 29. Appellees, the state of Ohio and the Department
{¶ 3} Natural “ODNR”), Resources (collectively, own a certain tract of land comprising 651.43 acres, which is located Brush Township, Creek County, Jefferson Ohio. When the property ODNR, was transferred to the seller all mineral rights, “reserve[d] including rights and egress and reasonable surface right privileges.” Snyder later acquired the mineral rights. After determining that approximately 10 percent of the $2,000,000 land contains in coal, excess of worth of Snyder informed ODNR he wanted to surface-mine the coal. ODNR will not allow surface mining, Snyder which claims is the only economically viable method of removing the coal. Snyder filed a complaint for declaratory judgment
{¶ 4} seeking a determina- tion that he is “entitled to surface mine auger small, and to mine a reasonable portion” of the property. ODNR summary moved for judgment, and the court of common pleas granted the motion. The court stated although the reserva- tion of implies right minerals[,] remove the does not imply right [it] [to] remove by
them strip mining methods. The rationale that runs consistently through those cases is that strip mining does not merely surface, use the destroys the In surface. order for the Grantor to reserve strip mine he must expressly particular reserve that right under the line of cases cited. The affirmed, court of appeals accepted we Snyder’s appeal from that
judgment.
Analysis The ultimate issue in this case is whether the contract language, which grants “reasonable surface right privileges,” entitles to engage in strip mining.
Skivolocki Co., Skivolocki v. E. Ohio Gas 313 N.E.2d analyzed this court the following contract to determine whether the owner of the mineral interests had the right to strip-mine: situated real following in and under all the coal convey] “[I * * *. of Ohio Guernsey in the state County of
(( # [*] [*] premises said way under necessary rights with all
“Together said removing shipping purpose coal aforesaid for through maintain lands, to construct and and the adjacent from and coal coal * * * for oil operate to lease necessary air shafts all by used any and all surface agreed Moreover it is gas. fifty at the rate of they pay it or shall assigns, successors and grantee, its its successors and grantee, also to the Hereby granting acre. per dollars as an air-shaft premises now on said to use the shaft assigns in the coal fields workings coal grantees manway for benefit *3 part.” are a premises which said deleted.) 246-247, the deed. quoting Id. at
(Emphasis interpreting case, principle the well-known we followed In that as that intent is parties, the intent of the carry “so as to out language contract facts: emphasized at 247. two Id. We language.” the contractual by evidenced (2) at the (1) deep mining” to and applicable “language peculiarly deed used in not known strip mining was technique signed, time the deed was Id. at 251. We held land was located. county where the a estate. ownership of mineral is not incident mine enjoyment of a with totally incompatible strip mining Because seeking to demon- upon party rests heavy burden true when the deed especially This is that such a exists. strate mining techniques became to the time prior was executed upon relied widely employed.
Id.
Graham Co., N.E.2d 949 Drydock Coal Graham 9} interest stated: reserving a mineral the contract all of the miner- conveyance from this excepted and “There is reserved oil, and salt water including gas description, nature als of whatsoever together with in, on, and privilege entering or under said premises for, for the purpose of exploring testing, removing same, and of making, constructing, driving, opening and maintaining entries, any passages, airways, thereunder, shafts or slopes thereon and or for drilling oil, for and producing gas, or salt water or their constituents thereof, with the right to enter in upon premises, said place and use proper equipment water, for drilling outlets for mine and the occupy portion shafts, said surface for necessary said slopes, tanks pipe lines and to convey and/or transport any or all of said and/or minerals lands, on, contained and under said adjacent and under in, lands on or under said premises, demised except any damage caused to fences growing crops by caused such entry and transpor- and/or tation of said minerals shall be paid by Grantor, successors, for said its assigns lessees. and/or
“Grantee, herself, heirs, for her successors and assigns, covenants and agrees that in the event it becomes advisable necessary for Grant- and/or or, its successors assigns, use and occupy any of the surface of said * * * premises demised purpose of the installation of a plant mine or facilities in therewith, connection then Grantee, that event said heirs, her successors assigns, will Grantor, sell and convey to its successors or assigns, said surface acreage price of fifty dollars ($50.00) acre, per plus the additional any cost of improvements or additions made placed on Grantee, said by heirs, her successors or . assigns.” *4 314,
Id. at quoting the contract. Skivolocki, inAs 244, 38 374, Ohio St.2d {¶ 10} 313 N.E.2d our “search for the intent parties” of the included reviewing the language contract, of the Graham, the contract clearly contemplates only deep mining. Graham at 317. We characterized Skivolocki holding right “the to strip-mine for coal is not implicit in the ownership of a severed mineral and that a deed estates, severing conveying the right to use the surface incident to coal mining, using language peculiarly applicable to deep mining, grant does not strip-mine.” 315, Id. at citing Skivolocki at paragraphs two and three of the syllabus. We also cited with approval federal circuit court case interpreted its holding as follows: “the intent of the parties is controlling, * * * when deep-mining language is used exclusively, courts must assume that strip mining was 318, not intended.” Graham at citing Belville Mining Co. v. States, (6th 989, Cir.1993). United 999 F.2d 993-994 Graham, we held: 326 estate, and which from a surface mineral estate severs a
A deed which coal, in incident to the surface to use or reserves grants drafted techniques, whether deep-mining peculiarly applicable language or reserve to grant does not strip mining, after the advent before (Skivo methods. by strip-mining coal to remove mineral owner 321, 244, 67 O.O.2d St.2d E. Ohio Gas Co. locki v. clarified.) 374, expanded N.E.2d syllabus.
Id. at Interests
Balancing the in the time and effort considerable spent that the appreciate parties We nevertheless, Graham; it discussing Skivolocki argument and at oral briefs holdings us. The answer the issue before cases do not to us these is obvious cases, in the at issue to the contracts inextricably tied in those cases deep-mining tech- “language peculiarly applicable contracts contain those three of the Skivolocki, paragraph N.E.2d at niques.” at The Graham, syllabus. 667 N.E.2d syllabus; that is peculiar no in this case contains in the contract reservation deep mining. nor the surface interest the owner of the It is a truism that neither has that are rights full Each ownership. has of the mineral interest
owner interest cannot of the surface the owner to the of the other. subject mined, of the mineral just as the owner can be claim that no minerals reasonably minerals. access to the We to have unfettered reasonably expect cannot interest separated, mineral interest are interest and the that when the surface have stated * * * has and that “the surface owner productive” doubly is rendered “the land course, at 315. Of of the surface.” Graham integrity to the unequivocal right necessarily do not Separate true. interests exactly is neither of these statements surface is not to the of the integrity production; as much result twice mining. incidental to to some diminution sacrosanct, always subject because interest, who seeks to the owner of Tension between interest, who the mineral surface, and the owner of maximize the value *5 minerals, principle broad inevitable. “The the is maximize the value of seeks to due owner must have is that each are to be resolved these tensions by which 1A in See question. of the estate making in use of the other rights for the regard (1980).” P.2d Northglenn, 739 Grynberg v. § 164 Property Real Thompson, G.
327 (Colo.1987). Balancing 234 the the full requires interests of owners also of parties. Accordingly, consideration the intent of the we return to the contract. Surface-Right Privileges
Reasonable The contract in case of “all grants this to the owner the mineral interest rights, including rights egress mineral of and reasonable surface All in right privileges.” of the words in are normal this clause words used State, ordinary way. And in yet, Mansaray as v. 2014-Ohio- 750, N.E.3d of parties 6 have reached what vastly interpretations different the clause means. Snyder interprets right privileges” “reasonable surface entitle him to strip-mine portion of the ODNR “reason- property. interprets right privileges” able surface entitle to access the facilitate property to deep mining. Mansaray, ambiguous As we are not that a persuaded clause is merely interpret because different parties differently. clause We are mining disinclined believe that is always inconsistent rights. case, Snyder with the surface owner’s this seeks to strip-mine mine auger 10 to 15 approximately percent acreage of the total over which he has rights. We can of conceive situations which mining approximate- acres ly remediating and then not land would be worse for the owner of rights deep the surface than mining plot, require of the entire which would extensive road access throughout the various property and mine shafts and other impediments enjoyment of surface. The latter situation might render plot entire unusable for the duration of the even mining, as the former situation have might impact limited on the remainder of the land. There way is no us to quantify impact type either we mining, but are not convinced that mining surface is always worse for the deep owner of surface than it mining; depends on the circumstances and the surface reasonableness mining. All mining, deep mining whether or strip mining, damages the surface
interest, and strip mining
not inherently
is
more detrimental to
the owner
interest,
surface
though
might
some of our cases
suggest
For
otherwise.
instance,
Skivolocki,
we
that “strip mining
totally
stated
is
with
incompatible
enjoyment
of a
surface estate.”
{¶ 18} —“reasonable are not court decision. We any reported not used has been privileges”—that customary than mean other phrase nothing the to they intended persuaded had, they If have they would egress, rights. and concomitant surface ingress, customary purpose. normal and contract was used the contract was County when Strip mining was well known Jefferson the strip-mined were before fact, property In areas at issue some signed. to the signatories that the is reason to believe acquired it. there ODNR included right privileges” “reasonable surface contract understood that original the signatories no to believe that to and there is reason strip-mine, to strip mining. intended exclude
Conclusion
summary
In a
on
we must determine whether
judgment,
case decided
20}
{¶
moving party is entitled
litigated,
of material fact remains to be
whether the
issue
law,
most
viewing
a matter of
and whether when
evidence
judgment
minds can
reach
nonmoving party,
only
reasonable
strongly
favor
56(C);
Temple
nonmoving party.
conclusion that is adverse to the
Civ.R.
United,
(1977).
Inc.,
Here,
317, 327,
given
The consider to be quality of the remediation contiguousness), mining, duration done.
Judgment reversed cause remanded. O’Neill, French, JJ., O’Connor, C.J., Lanzinger, Kennedy, concur. J., dissents. O’Donnell,
O’Donnell, J., dissenting. I respectfully dissent. This case concerns whether a “all conveyance reserving rights, including rights egress and reasonable surface right privileges,” permits the owner the mineral to strip purchased by interest mine land state view, to establish the Brush Creek Wildlife Area. it does not. my *7 long We have recognized principle the as settled,
well owning fee, minerals, when one the whole the grants himself, the to reserving surface his grantee only will be entitled to so minerals, much of the as he can get injury without to the superincumbent soil, unless, the of the clearly instrument that it was imports, the intention grantor to part with right subjacent support. the of (1884). v. Burgner 340, 41 Humphrey, Thus, Ohio St. 352 when mineral interests are severed from the surface own, owner must so his “[e]ach use as not to injure the of property the other.” Id. “ Ownership of the mineral estate ‘carries with right
{¶
it the
use
25}
to
much of the
may
surface as
be reasonably necessary to reach and remove the
”
added.)
Co.,
minerals.’
(Emphasis
244,
Skivolocki v. E. Ohio Gas
(1974),
N.E.2d 949 we noting reaffirmed that reserving the does imply minerals not the mine property. There, the Id. at 315. ” we relied on “a long line of Ohio coal cases originating Burgner with that applicable “to strip-mining the issues today.” explained: Id. further We
When the mineral and surface interests in a tract of land are severed so that use can be made of the land by same different parties, and the land is unequivocal has surface owner doubly productive, the thereby rendered of mineral owner are The actions surface. integrity to the estate destroy damage not to or obligation by limited in the or included deed expressly obligation a from that unless release contract. omitted.) coal-producing
(Citations
the decisions of other
Id. And
followed
we
may not extract the
mineral estate
that the owner
recognizing
states in
estate,”
unless
technique
destroys
“by
[surface]
minerals
means
”
“
317-318,
at
Id.
unequivocal language.’
‘by
clear
deed reserves
(1916).
271, 292,
Hamilton,
Yorys, Seymour & John Sieck, appellants. A. William Hendershot, General, DeWine, Attorney Deputy Michael J. Chief
Michael Solicitor, Dillhoff, Solicitor, appellees. Megan Deputy