Department of Forests and Parks v. George's Creek Coal & Land Co.

• Decision Date: 28 May 1968
• Docket Number: No. 223,223
• Parties: DEPARTMENT OF FORESTS AND PARKS et al. v. GEORGE'S CREEK COAL & LAND COMPANY.
• Court: Maryland Court of Appeals

Page 125

250 Md. 125

242 A.2d 165

DEPARTMENT OF FORESTS AND PARKS et al. v. GEORGE'S CREEK COAL & LAND COMPANY.

No. 223.

Court of Appeals of Maryland.

May 28, 1968.

Thomas A. Garland, Asst. Atty. Gen., Baltimore, and Richard C. Rice, Sp. Asst. Atty. Gen., Annapolis (Francis B. Burch, Atty. Gen., Baltimore, on the brief), for appellants.

Robert H. Reinhart and William Walsh, Cumberland (William C. Walsh, Cumberland, on the brief), for appellee.

Before HAMMOND, C. J., and MARBURY, BARNES, McWILLIAMS and SINGLEY, JJ.

McWILLIAMS, Judge.

Unless the appellants (the State) and the appellee (the Company ¹) can come to terms in respect of compensation to the Company for the surrender of its mineral rights, our decision in this case will result in the scarification and uglification of most of the upper eastern face of Big Savage Mountain, one of the lesser glories of Garrett County. The facts, in large part undisputed, are as follows:

In 1910 the Company acquired the fee simple title to a tract of land containing 8,621 3/4 acres known at 'Beattys' Plains,' on Big Savage Mountain, near the boundary line between Garrett and Allegany counties. Some 20 years later it conveyed the tract to McMillen. In the deed there appears an exception and reservation, reading as follows:

'Excepting, however, from the operation of this deed, and reserving to the George's Creek Coal Company, Incorporated, its successors and assigns, all the coal, clay and other minerals, and all the oil and gas underlying said land hereby conveyed, together with the right to enter in, upon and under said land and to mine, excavate and remove all said coal, clay and other minerals, and said oil and gas, and to transport and haul the same to market; and also the right to enter in, upon and under said lands and to transport and haul the coal, clay and other minerals and the oil and gas from other lands and under and over and across said land; and also the right to enter in, upon and under said land and to make, construct and maintain road ways, excavations, tunnels, drain ways, tracks, pipe lines, power lines, tipples, and any and all other like structures and to do any and all things necessary or convenient for the mining and removing of said coal, clay and other minerals and said oil and gas and the coal, clay and other minerals and the oil and gas from other lands; and also the right to enter in, upon and under said land and to construct and maintain poles, towers and wires and other like equipment for carrying electricity for any purpose whatsoever; all without being in any manner liable for the breaking or subsidence of the surface of said land or for any injury or damage done to the overlying surface thereby or to anything therein or thereon, by the exercise of the rights hereby excepted and reserved, whether or not the same be caused by or due to the negligent manner in which said mining operations are conducted or said rights are exercised.

'And also excepting from the operation of this deed and reserving to the said The George's Creek Coal Company Incorporated, party of the first part, its successors and assigns, so much of the land hereinbefore described as may be necessary for a railroad right of way having a road bed sixty (60) feet wide, together with such other land which may be necessary for adequate slopes, cuts and fills for the same, the location and length of said railroad and right of way to be solely at the discretion and in the judgment of the said party of the first part, its successors and assigns.' (Emphasis supplied.)

In 1931 the land was rocky, unimproved and covered with timber. It rose from George's Creek (elevation 1400 feet), at grades ranging from 15% to 25%, to the top of Big Savage Mountain (elevation 2900 feet). McMillen, who was in the timber and pulpwood business, began logging operations immediately after taking title. In February 1937, having 'clear-cut' all of the timber, McMillen conveyed, subject to the exception and reservation of record, approximately 5800 acres of the tract to the United States for about $1.00 per acre. In December 1954 the United States sold the 5800 acres, along with other land in Garrett County, to the State of Maryland. It is now part of the Savage River State Forest. The conveyance from the United States to Maryland, which of course was subject to the exception and reservation of record already mentioned, contained the following additional restriction:

'This conveyance is also made subject to the condition that the above-described land shall be used for public purposes, and if at any time said land ceases to be so used the estate hereby conveyed shall immediately revert to and become revested in the United States.'

In December 1964, the Company applied to the Board of Public Works for permission to remove the coal by strip mining. After a hearing held 14 December the Board granted permission (one member dissenting) subject, however, to the approval of the Department of Forests and Parks, which, after consideration of the application, in February 1965, refused to give its approval. The Company, on 14 November 1966, filed in the Circuit Court for Garrett County, its bill for a declaratory decree against the Board of Public Works, Spencer P. Ellis, the director of the Department of Forests and Parks, and two mortgagees. The case was heard before the chancellor, Hamill, J., on 24 April 1967. The decree declaring the Company to be entitled to strip mine the coal and directing the issuance of a permit was filed 14 June 1967 along with the chancellor's opinion. We have before us the State's appeal.

At the trial below F. R. Zacher, a mining engineer, testified there is beneath the surface of about one-half of the property 7,371,000 tons of bituminous (soft) coal. He was of the opinion that 2,585,000 tons could be recovered by strip mining ², 596,000 tons by the auger method and 4,190,000 by deep mining. Asked how the coal could be mined economically, be said:

'To open a deep mine, I do not believe it would be economical unless first, a bench was established by strip mining wherein the surface would be removed and the coal removed and create a, what in strip mining terminology is known as a high wall. * * * (I)t would be by opinion that the crop line would be opened, there would be reservation of coal along that created high wall for auger mining and there would be solid areas left along the high wall from which you would enter with deep mines, and these deep mines would go in, down the hill, they would mine their allotted area, retreat and then a second mine and a third and a fourth would be opened, rather than tying up everything in one great big single mine for the entire field of coal. Primarily, though it would have to be stripped, I believe, before it would be economical to mine any of it.'

Mr. Zacher testified that the stripped area would total about 409 acres and that an additional 250 acres would be disturbed. The strips, of course, are not contiguous. They follow the coal seams. He also said strip mining had been known for 'in excess of sixty years.'

Frank T. Powers began his career in the mining industry in 1900. In 1918 he became a mine inspector for the State of Maryland. From 1949 until his retirement in 1962 he was the director of the Bureau of Mines. He testified that a lessee of the Company strip mined about 2000 tons of coal near Lonaconing, about 3 miles from the land under consideration, in 1917, 1918 or 1919, 'either one of those three years.' The only economical way the coal can be removed, he said, is by strip mining. Chelsie Liller has a stripping operation in Garrett County. He has lived in Allegany County since 1909. He recalled that American Coal Company (the Company's lessee), in 1917, strip mined coal from Lonaconing to Barton, a distance of 3 1/2 to 4 miles, and 2 to 3 miles from the Company's property. He remembered McMillen's logging operation. He said McMillen told him (Liller) that 'He had no intention of ever holding it (the 5800 acres). It was the timber he was interested in.'

Spencer Ellis explained his department's opposition to the granting of the permit. We quote from his testimony:

'Q. Now, if this area is permitted to be strip mined, is this consistent with the purposes of the Department with this land? A. It is not.

'Q. Why not? A. Because the act of removing the overburden destroys the surface for public use. We cannot grow timber on an area that has been or is being actively strip mined. It has very little use for recreation. It certainly does not present a watershed protection program, and, of course, it has no available wildlife advantages or habitat for wildlife.

'Q. Now, Mr. Ellis, you have heard some testimony this morning from Mr. Zacher as to the amounts of coal that he estimates is under this land. There are certain amounts that can be deep mined. Now, does the Department object to the deep mining of this coal. A. We don't certainly like deep mining either. It does have some detrimental effects on the environment. However, compared to surface mining, the detrimental effects are not as pronounced. So, if you are weighing one as against the other deep mining does not have much effect on surface damage as strip mining, but it has some unrelated or related things such as drainage, spoil and odor and things that are damaging to the area.'

Clinton Irwin, the district director of the Department of Forests and Parks, supported Mr. Ellis. He said:

'* * * A. I would say in some areas it (strip mining) would have a very, very serious effect.

'Q. In what way? A. As has been mentioned by several witnesses before me, this is a mountainside, it's side of largely the east face of Big Savage Mountain which runs an altitude of from about 2,900 feet and drops off all the way down at George's Creek at an elevation of perhaps 1,400 or 1,500 feet I would guess, but anyway it's-the grades on the mountainside are quite steep. I would guess in...