93 Mo. 107 | Mo. | 1887
This was an action of ejectment to recover the surface of ten acres of land, being that part of the west half of the northwest quarter of section 14, township 57, range 15, south of the Hannibal & St. Joseph Railroad in Macon county.
On the fifteenth of June, 1869, the-Central Coal & Mining Company conveyed the surface of the above-described eighty acres to one Tompkins, reserving to the party of the first part, their assigns and successors forever, “the right of mining and removing at pleasure coal and other minerals from under the surface of said land ; also, the right and privilege of sinking, if need. be, air shafts, for the purpose of working, mining, or removing the same.” On the twelfth of January, 1871, Tompkins, by quit-claim deed, re-conveyed the ten acres
Prom the foregoing statement, it will be seen that the defendant, besides the coal under the eighty acres, acquired the surface and coal of the northeast quarter -of the northwest quarter of the same section ; this forty adjoined the eighty on the east of the north half, being the part of the eighty acres farthest from the railroad. In 1876, or 1877, the defendant sold the surface of the forty-acre tract; so that, thereafter, he did not own the ¡surface of either tract, nor that of any adjoining tract. In 1881, the defendant entered upon the ten acres, sunk a shaft, put up a barn, stables, blacksmith-shop, and made a pond to gather water for his machinery. Por the purpose of operating his mines under the surface of the-whole eighty acres, he occupies about two acres of the surface of the ten acres. The shaft is seventy-five feet in depth, and is located eight feet from the railroad right of way. The evidence shows that he occupies no more of the surface than is necessary for the convenient and profitable operation of the mines. The plaintiff .insists that defendant has no right to the possession of
Coal under the surface of the land is the subject of a grant or of a reservation. Coal and minerals in place are land, may be conveyed as such, and when thus conveyed constitute a separate and distinct inheritance. Caldwell v. Fulton, 31 Pa. St. 475. When a thing is granted, all means to attain it, and all the fruits and effects of it, are granted also, without further words. By the grant of mines is granted the power to dig them. Shep. Touch. 89. A reservation of minerals and of mining rights, it is said, is construed as an actual grant thereof; and though a reservation is to be construed most strongly against the grantor, still there will be retained in him all that it was the clear meaning of the parties to reserve from the conveyance. Marvin v. Brewster Iron Mining Co., 55 N. Y. 538. Whether the separate estate, consisting of the coal, was first created by a grant or by a reservation is immaterial. In either case the owner of that estate has a right to dig the coal. One who has the right to mine coal, or to take stone or minerals from the land, has the right to enter and take possession, even as against the owner of the soil, and hold such possession, and use the^urface so far as is necessary to carry on the mining operations, and this without any express authority therefor. Turner v. Reynolds, 23 Pa. St. 199; Green v. Putnam, 8 Cush. 21; Bainbridge on Mines [2 Ed.] 56; 3 Wash. Real Prop. [5 Ed.] top p. 414.
Applying these principles to the case in hand, there would seem to be no doubt but the defendant has and had the right to place his buildings on the surface, make a pond thereon to gather water to be used in running the machinery, to use a part for a dump, and to sink a shaft to the coal beneath. But it is said this conclusion should not be reached because there is in the deed of the coal company to Tompkins, dated the fifteenth of
But let it be conceded that the defendant’s rights to the whole of the eighty acres are to be measured by the reservation. The reservation is “.the right of mining and removing at pleasure coal and other minerals from under the surface of said land; also, the right and privilege of sinking, if need be, air shafts for the purpose of working, mining, or removing the same.” In the case of Marvin v. Brewster Iron Mining Company, supra, it is said: “Hence a grant of minerals in the land gives a right to mine for them, unless there is a positive restriction in the grant itself. The plaintiff claims that this general power, if thus acquired as an incident to a grant, is limited by an especial power or privilege particularly mentioned in the grant or reservation. Ánd, as the reservation here does, in particular terms, stipulate for a privilege of going to and fro,- he insists that this privilege is all that the.defendant has. Such is not the effect of such a particular.”
In the case of the Earl of Cardigan v. Armitage, 2 B. & C. 197, there were exceptions and reservations of the coal. To this exception was added express liberty,
, In this case, it appears that in mining for coal, the working shaft is often used as an air shaft, having two* compartments, one for the down, and the other for the-up, current of the air. Again, it is said an air shaft is* often placed forty or fifty yards from the working shaft, and in such cases it is a different thing from the working-shaft. Now, from the reservations of the coal, without further words, a right to sink a vertical shaft, and to do-all things reasonably necessary to raise the coals, when separated from the earth, and to carry them away, would be implied — would follow as an incident to the-grant or reservation. The parties to the deed, as if some doubt might arise as to the right to sink a separate air shaft, made express provisions therefor. The intention to exclude the incidental or implied powers does not plainly appear. No negative words are used.. The. express liberty seems to have been designed as an enlargement of, not a restriction upon, the implied powers.
It is further said that the defendant ought not to be-allowed to use the surface of the ten acres, because he-formerly owned the surface and coal of the forty acres-lying on the east of the north half of the eighty acres-in question, and that he could have retained the surface-of that forty, and sunk his shaft therein, and built his-works thereon. Had he done all this, he would be-obliged to haul the coals a quarter of a mile in order to*
The judgment is, therefore, affirmed.