Akers v. Baldwin

• Decision Date: 02 July 1987
• Docket Number: 85-SC-422-TG,Nos. 85-SC-392-C,s. 85-SC-392-C
• Citation: 736 S.W.2d 294
• Parties: Everett AKERS et al., Plaintiffs, v. Charlotte BALDWIN et al., Defendants, and Falcon Coal Company et al., Intervening Complainants. Matthew BAKER et al., Appellants, v. Elizabeth WOOTEN et al., Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 294

736 S.W.2d 294

26 ERC 1643

Everett AKERS et al., Plaintiffs, v. Charlotte BALDWIN et al., Defendants, and Falcon Coal Company et al., Intervening Complainants.

Matthew BAKER et al., Appellants, v. Elizabeth WOOTEN et al., Appellees.

Nos. 85-SC-392-CL, 85-SC-422-TG.

Supreme Court of Kentucky.

July 2, 1987.

As Corrected July 2, 1987.

As Modified on Denial of Rehearing Sept. 24, 1987.

Joe F. Childers, Shepherd & Childers, Lexington, Thomas J. Fitzgerald, Frankfort, David Rubinstein, Prestonsburg, for plaintiffs.

Iris S. Nickell, David J. Obradovich, Mary Katherine Daugherty, Frankfort, for defendants.

John A. Bartlett, Winfrey P. Blackburn, Jr., Stites & Harbison, Louisville, Leon Hollon, Paul R. Collins, Hazard, for appellants.

Joe F. Childers, Shepherd & Childers, Lexington, for appellees.

John S. Palmore, Lexington, Richard W. Iler, Louisville, Richard C. Ward, Lexington, Joseph J. Zaluski, Frankfort, for intervening complainants.

Sidney B. Douglass, Harlan, for amicus curiae: Kentucky Fair Tax Coalition, Inc. & Concerned Citizens of Martin County, Inc.

STEPHENS, Chief Justice.

On this appeal we again consider the legal effect of the so-called "broad form deeds" on the conflicting rights of the owners of the surface to land and the owners of the mineral rights under that land. ¹

Specifically, we reexamine the doctrine set forth in the seminal case of Buchanan v. Watson, ² which allows mineral owners to strip mine ³ with little or no restriction or liability to the owner of the surface, even to the extent of absolute obliteration of the surface and all its appurtenances. We also address the constitutionality of KRS 381.930 to 381.945 (1984), the ultimate purpose of which is to prohibit strip mining under the provisions of broad form deeds.

PROCEDURAL AND FACTUAL BACKGROUND

Appellants Akers and others filed suit in the United States District Court for the Eastern District of Kentucky against Charlotte Baldwin, Secretary, Natural Resources and Environmental Protection Cabinet, Commonwealth of Kentucky. An injunction was sought to prevent Baldwin from issuing strip mining permits where the right to strip mine was claimed under an instrument which severed the minerals and the surface, and where said instrument did not specifically give the mineral owner the right to mine in such manner, and where the surface owner objected to, or did not consent to, such method of mining. ⁴ The District Court entered a preliminary injunction, partially granting the relief sought. Falcon Coal Company and others filed an intervening complaint, challenging the applicability and constitutionality of KRS 381.930-945 (1984) and claiming that such dispute between the mineral owner and the surface owner does not constitute a legal basis for withholding a strip mining permit. The District Court, pursuant to CR 76.37, requested this Court to certify the constitutional challenge to KRS 381.930 et seq. We granted this request.

In the second case, Baker v. Wooten, appellant Baker, plaintiff below, is the lessee of the mineral rights of a 427 acre tract of land in Perry County. Appellees Elizabeth Wooten and her children and their spouses are the owners of the surface rights to a portion of that land. Baker's lessors trace their title to the coal and other minerals to a 1910 deed which severed the mineral estate from the surface estate. Baker was engaged in strip mining, with a valid permit, on land adjacent to the property owned by appellees. Appellees denied Baker permission to enter on the surface of their property to do geological work prior to beginning strip mining operations thereon.

Baker filed an action in the Perry Circuit Court, seeking a declaration of rights and injunctive relief which would enable him to strip mine on the Wooten property. When the lawsuit was filed there was no legislation in Kentucky which specifically addressed the construction and interpretation of mineral severance deeds. Baker moved for a summary judgment, claiming that We granted the motion and, sua sponte, consolidated the two cases. We also directed that, in addition to the questions presented in the certification request and in the Baker appeal, the parties should address whether a standard broad form deed gives the owner of the mineral rights the right to extract coal by surface mining, as held in Buchanan.

                existing Kentucky common law gave him the absolute right to strip mine.   The Wootens filed a cross-claim and a motion for summary judgment, claiming that KRS 381.930-945 5 prevented their property from being strip mined.   The trial court declared the statute to be constitutional and, following an evidentiary hearing, determined that when the 1910 severance deed was recorded there was no strip mining in the vicinity.   Therefore, the trial court reasoned, under the terms of the statutes the owner of the mineral rights or his successor (Baker) could not strip mine on the Wooten property.   A notice of appeal was filed by Baker in the Kentucky Court of Appeals.   Following this, the appellees filed a motion requesting this Court to transfer the appeal
                

CONTENTIONS OF THE PARTIES

Not surprisingly, Falcon Coal Company and other coal companies, as intervenors in Akers v. Baldwin, joined with the appellant in the case of Baker v. Wooten in urging that KRS 381.930-945 are unconstitutional and that Buchanan is correct and should not be overruled or disturbed. Equally predictably, Baldwin and Akers joined with Wooten in advocating the constitutionality of the questioned statutes and in urging the overturn of Buchanan and its progeny.

In this opinion we will first consider the issues relative to the respective and often conflicting rights of the owners of the surface of the land and the owners of the minerals that lie under that surface. In so doing, we will perforce reconsider our decision in Buchanan. Secondly, we will examine the constitutionality of the Kentucky General Assembly's attempt to deal with the same issue in the instance of broad form deeds.

The genesis of the conflict between the owner of the surface and the owner of the minerals thereunder is the well-established legal doctrine that surface rights and mineral rights can be separate and distinct legal estates in land. The minerals are legally distinct from the surface under which they lie. Such mineral estates are said to be "severed" from the surface. Duncan v. Mason, 239 Ky. 570, 39 S.W.2d 1006 (1931); see 4 D. Vish, Coal Law and Regulation, Section 80.01 (1983) (hereinafter cited as Vish).

The severance of the minerals and the surface can be achieved by a lease of the mineral rights or by a deed which creates a fee simple title to the minerals. Such separate estate can also be created by the sale of the surface, with a reservation of the minerals by the grantor. ⁶ Vish, Section 80.02.

In spite of the theoretical purity of the doctrine of severability, ⁷ the two estates are inextricably intermingled. The surface covers the mineral estate, and as a result, there is inherent in the mineral estate a right of access in and through the surface to the minerals. Of what value is a mineral if it cannot be mined? The surface owner has no right in the minerals; the mineral estate is therefore considered to be the dominant estate, and the surface estate is the servient one. E.g., McIntire v. Marian Coal Co., 190 Ky. 342, 227 S.W. 298, 299 (1921).

The conflicting rights of the surface owner and the mineral owner have led to a plethora of litigation, not only in Kentucky The somewhat apocryphal term "broad form deed" is loosely defined as a conveyance which severs the mineral estate from the surface estate and which has a long and tedious description of granted rights as opposed to those mineral deeds which grant only necessary and convenient mining rights, or no mining rights at all. It is a particular, if not unique, form of deed which normally conveys all of the minerals under the surface. It may, however, list only certain specific substances. Additionally, such a deed conveys--specifically to the grantee--surface rights the grantee deems necessary or convenient for the full and free exercise and enjoyment of the minerals conveyed. Some deeds, if not most, contain an express waiver of liability for damages arising from the grantee's use of the surface in obtaining the minerals. Lastly, most such deeds reserve to the grantor only such surface rights as may be consistent with the mineral rights conveyed. ⁹ It has been left to the Kentucky Court of last resort to interpret those deeds and to identify the rights of the surface owner as opposed to those of the mineral owner.

                but throughout the United States. 8  In Kentucky, the problem has been exacerbated by the advent of strip mining and this Court's attitude toward the conflicting rights under so-called "broad form deeds"
                

KENTUCKY CASES PRIOR TO BUCHANAN V. WATSON

In the early part of this century, we declared that a conveyance in a deed of "all the minerals" included any and all diamonds found thereon. Kentucky Diamond Mining and Developing Co. v. Kentucky Transvaal Diamond Co., 141 Ky. 97, 132 S.W. 397 (1910). We said,

"When the language of the deed is broad enough to cover everything that may be found on the land, it is not material to the effect of the deed that the parties in fact contemplated at the time that a particular thing might be found on the land.... A deed is to be construed against the grantor, rather than against the grantee because the grantor selects his own words...." Id., at 398, 399 (emphasis added).

Parol evidence that would limit the scope of the grant, if not excluded, was ignored and the broad conveyance of "all the minerals" was given literal effect. The doctrine that a deed is to be strictly construed against the grantor, thus stated, has remained unchanged in our case law.

In the case of Scott v. Laws, 185 Ky. 440, 215 S.W. 81 (1919), we reaffirmed the principle that permitted the...