Bibby v. Bunch

SAYRE, J.

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 *589 be irreparably injured by tlie further disturbance, destruction and removal of the soil and the timber, herbs and grasses thereon. The prayer, among other things which need no mention, was that a perpetual injunction, be awarded'against appellants, restraining the further prosecution of their mining operations so as to disturb, destroy, remove or endanger the soil or surface thereof, or the herbs, grasses or timber thereon. The chancellor overruled a demurrer and this appeal is prosecuted to review that ruling.

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, *590 owes to the superincumbent owner a right of support. This is an absolute right arising out of the ownership of the surface. Good or bad mining in no way affects the responsibility; what the surface owner has a right to demand is sufficient support, even, if to that end, it be necessary to leave every pound of coal untouched under his land. — Berwind v. Barnes, 13 Wwly. Notes Cas. 541; also the English case, Harris v. Ryding, 5 M. & W. 60, in Avkich Baron Parke uses this language: £I do not mean to say that all the coal does not belong to the defendants, but they cannot get it Avithout leaving sufficient support.’ We have folloAved rigidly this rule, as thus tersely suggested, in all our decisions on the subject, and they have been many. Of course, defendant had a right to all the coal under this lot, but, he had no right to take any of it, if thereby, necessarily, the surface caved in. The measure of his enjoyment of his right must be determined by the measure of his absolute duty to the OAvner of the surface.”- — Noonan v. Pardee, 200 Pa. 474 , 50 Atl. 255 , 55 L. R. A. 410, 86 Am. St. Rep. 722 . See, also, 27 Cys. p. 788, “Subjacent Support,” and notes.

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 *591 the minerals beneath would have been drawn. And that is not in accord with the necessary intendment of the case presented by the bill which avers, as has been shown, that the land is well timbered, abundantly covered with herbs and grasses, and valuable for agricultural and residential purposes, all which uses would be destroyed if at the end of appellants’ operations, as may well be the case, there should be left nothing but a hole in the ground. Nor does the formulated rule of the law recognize the propriety of any such comparison of values between the surface of the earth and that indefinite extent upwards and downAvards the dominion of Avhieh, so far as may be, passes Avith the conveyance of land Avhere the parties do not stipulate otherwise. But Avhere the parties draw a dividing line, the laAv of the courts, folloAving the logic of the facts of nature, gives first consideration to the OAvnersliip of the surface of the earth, the soil, from which the human family draws sustenance and on Avhieh it lives and moves, and declares, in the absence of special covenant to a contrary effect, the absolute right to its use and enjoyment, subject only to those rights in the owner of the underlying minerals which are necessarily implied by a severanee of the tAvo estates, and Avhieh are conceded by appellee in this cause.

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 *592 is entitled to use and enjoy it, pecuniary compensation is inadequate, the injury is irreparable at law, and the interference of equity is demanded. In such case, also, the court is indifferent whether the wrongdoer be solvent or insolvent. — Hooper v. Dora Coal Mining Co., 95 Ala. 235 , 10 South. 652 ; 5 Pom. Tq. Jur. § 495.

The demurrer to appellee’s bill was properly overruled, and the chancellor’s decree will be affirmed.

Affirmed..

All the Justices concur.