Belville Min. Co., Inc. v. US

Decision Date30 April 1991
Docket NumberNo. C-1-89-874.,C-1-89-874.
PartiesBELVILLE MINING CO., INC., et al., Plaintiffs, v. UNITED STATES of America, et al., Defendants.
CourtU.S. District Court — Southern District of Ohio

Robert Anderson, Ironton, Ohio, for plaintiffs.

Jan Holtzman, Asst. U.S. Atty., Cincinnati, Ohio, for defendants.

FINDINGS OF FACT, OPINION AND CONCLUSIONS OF LAW

CARL B. RUBIN, District Judge.

I. INTRODUCTION

This matter concerns a dispute between the Plaintiffs, which hold mineral rights in certain land located in Wayne National Forest, and the United States, which owns the surface rights in the same property. It essentially involves that portion of the Fifth Amendment to the United States Constitution which requires that compensation be paid for private property taken for public use.

Trial was held on March 27 and 28 and April 1 and 2, 1991. In accordance with Rule 52 of the Federal Rules of Civil Procedure, the Court submits its Findings of Fact, Opinion and Conclusions of Law.

The determination of the issues herein involve detailed discussion and will follow the following outline:

INDEX

I. INTRODUCTION
II. FINDINGS OF FACT
A. General
1-7
B. Rights Created by Constitution and Judicial Decision
1. Constitution of the United States
2. Constitution of the State of Ohio
3. Judicial Decisions
C. Rights Created by Deed
1. Bauer Tract Findings a.-g.
2. Culbertson Tract Findings a.-d.
3. Jenkins Tract Findings a.-e.
4. Simmering Tract Findings a.-e.
5. Summary
D. Rights Granted by the United States
III. OPINION
A. Rights Created by Constitution and Judicial Decision
B. Rights Granted by the United States
IV. CONCLUSIONS OF LAW

A.-L.

II. FINDINGS OF FACT
A. General

1. Wayne National Forest is located in the southeastern quarter of Ohio. It is composed of approximately 188,000 acres of land. Wayne National Forest is neither one contiguous entity, nor do all portions of it adjoin. There are substantial private holdings within it completely surrounded by land owned by the United States. Not all of the Forest is held in fee simple. Private mineral rights are retained in some areas. There is a distinction between National Parks created by 16 U.S.C. §§ 21, et seq., and National Forests created by 16 U.S.C. §§ 515, et seq. The restrictions that relate to National Parks do not necessarily relate to National Forests.

2. Plaintiff Belville Mining is a private corporation engaged in the extraction of coal primarily in southeastern Ohio. It claims a right to remove coal from four tracts of land on which it or the individual Plaintiffs hold title to the mineral rights. The tracts of land are described variously as the Bauer tract of approximately 188 acres; the Culbertson tract of approximately 5700 acres; the Jenkins tract of approximately 115 acres; and the Simmering tract of approximately 1700 acres.

The surface rights to all such tracts are held by the United States as part of Wayne National Forest.

3. Coal occurs in seams of varying widths and may be extracted in a number of ways. It may be removed by the use of dynamite, hydraulic pressure or augers. Where the seams are close to the surface, the operation may be done by "strip mining." Where the seams are substantially below the surface, only "deep mining" is practical.

4. "Deep mining" is the traditional form of extracting coal and other minerals. Until 1948 it was the dominant method for coal extraction in Ohio (Deft.Ex. E). It involves the sinking of vertical shafts to the various coal seams and the use of horizontal tunnels through such seams. In instances where the terrain is hilly or mountainous, it may involve only horizontal shafts. Deep mining is labor intensive and dangerous. It requires the reinforcing of the roofs of horizontal shafts, pumping to remove water seepage, and protection against methane gas.

5. "Strip mining" is a less expensive method of extracting coal and it proceeds in the following sequence. Trees, vegetation and soil known as "overburden" lying atop the coal seams are removed. When the coal is exposed, it is extracted by the use of mechanical scoops or shovels and transported from the premises by truck.

Strip mining requires far fewer employees than deep mining and usually only the skills necessary to operate the scoops, bulldozers and trucks. The dangers of roof collapse, flooding and methane gas which are present in deep mining rarely exist in strip mining. By its very nature strip mining is aesthetically unattractive and destructive of forests, animal habitat and streams. Overburden may be many feet deep. In the early days of strip mining, overburden was allowed to remain on the surface in what were known as "spoil banks." Currently in Ohio, strip mining is controlled by the State. Operators are required to return the overburden within a short period and to plant and landscape in order that the surface not be permanently destroyed.

6. Coal in southeastern Ohio is of the bituminous variety. Seams of coal are numbered in a fashion whereby the higher the number, the greater the elevation. In the litigation at hand, the only pertinent references are to Seams 4 and 5. Seams are separated by various other materials including limestone and clay. Under Ohio law different mineral rights may be conveyed to different persons and the various seams of coal may be conveyed to different persons.

7. Strip mining in Ohio began in 1914. At that time, 141,446 tons were strip mined while 18,594,861 tons were mined by underground or deep mining.1 From 1914, strip mining in Ohio increased until in 1936 it accounted for approximately 10% of the total production. The tonnage in 1936 for strip mining was 2,343,000; for deep mining it was 21,120,032 tons. By 1948 strip mining accounted for more than one-half of the total tonnage in Ohio. In that year, 20,082,202 tons were strip mined while 18,232,155 tons were deep mined. From that year forward, the tonnage of strip mining always has exceeded the tonnage from deep mining. By 1990 the numbers were 20,283,876 tons for strip mining, 12,868,223 tons for deep mining. (Deft.Ex. E)

It therefore may be assumed that in the matters before the Court dealing with deeds executed in and after 1936, the technique of strip mining was known and the language in such deeds therefore may be considered on that basis.

B. Rights Created by Constitution and Judicial Decision
1. Constitution of the United States

The Court will take judicial notice that the Fifth Amendment to the Constitution of the United States provides in part as follows:

No person shall ... be deprived of ... property without due process of law; nor shall private property be taken for public use without just compensation.
2. Constitution of the State of Ohio

The Court will take judicial notice that Article I, Section 19 of the Constitution of the State of Ohio provides in part as follows:

Private property shall ever be held inviolate but subservient to the public welfare ... In all other cases other than time of war or other public exigency where private property shall be taken for public use, a compensation therefore shall first be made in money.
3. Judicial Decisions

The Court will take judicial notice that decisions of the Supreme Court of Ohio state the law by syllabus and that all else contained in an opinion is dictum. In Skivolocki v. East Ohio Gas Co., 38 Ohio St.2d 244, 313 N.E.2d 374 (1974), the Court held in the second branch of the syllabus:

The right to strip mine for coal is not implicit in the ownership of a severed mineral estate.

In the third branch of the syllabus, the Court held:

A deed which severs a mineral estate from a surface estate and which conveys the right to use the surface incident to mining coal in language peculiarly applicable to deep mining techniques does not grant the right to remove coal by strip mining methods.

Neither Skivolocki nor any other case cited to the Court has held that strip mining is illegal per se in Ohio or that a right to remove coal by strip mining cannot be created by deed.

C. Rights Created by Deed
1. Bauer Tract Findings

a. The Bauer tract of 306.42 acres was conveyed by General Warranty Deed to the United States of America on March 27, 1942, Recorded in Deed Book 281, p. 134, Scioto County records. Reserved to the Grantor was the following:

The right to prospect for and mine by means other than hydraulic, which is prohibited, manufacture and remove coal, limestone, clays and shales of Ohio in upon and under said lands, excepting that limestone is not hereby reserved ... in property in Section 36, Township 4, Range 19, Ohio River Survey.

The reservation likewise contains the following:

This reservation shall be subject to and in accordance with the Rules and Regulations of the Secretary of Agriculture of the United States of America pertaining thereto dated January 23, 1937 ...

(Joint Ex. I-68).

b. Belville Mining Company acquired its interest in a Land Installment Contract, dated July 3, 1986, from Courtney McCoy, Delbert McCoy and Evelyn McCoy. This document is recorded in Deed Book 613, page 432, of the Scioto County, Ohio records. (Joint Ex. I-69).

c. The deed to the United States was corrected by a "Correction Deed," dated June 23, 1942, recorded in Deed Book 281, page 271, of the Scioto County, Ohio records. The stated purpose of the Correction Deed is as follows:

Whereas it is the desire of the parties, Grantor and Grantee, in said Deed and in this instrument to correct said error incorrect Rules and Regulations of the Secretary of Agriculture and establish the proper rules and regulations under which said reserve mineral rights may be operated.

The Deed likewise contains the following:

It is further agreed that all of the terms and conditions of said original Deed are to remain in full force and effect without alteration, subjection or change, other than that any and all operations had or conducted under or by virtue of said reservations shall be subject to and in
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