Moss v. Jourdan

• Decision Date: 10 July 1922
• Docket Number: 22442
• Citation: 129 Miss. 598,92 So. 689
• Court: Mississippi Supreme Court
• Parties: MOSS v. JOURDAN

92 So. 689

129 Miss. 598

MOSS v. JOURDAN

No. 22442

Supreme Court of Mississippi

July 10, 1922

1 DEEDS. Rule that earlier clauses prevail over repugnant later ones not applicable where they can be made to harmonize with general purpose deed.

The rule that "if there be in a deed earlier clauses which are repugnant and inconsistent with the later ones the former shall prevail" is subject to the qualification that an election cannot be made between repugnant and inconsistent clauses "if they can be made to harmonize with the general purpose and scheme of the parties as derived from the whole instrument."

2. MINES AND MINERALS. Stipulation in deed held valid and to reserve to grantor title to minerals.

A stipulation in a deed to land that it is understood and agreed by the grantee that the grantor "shall have and own all minerals that may be on the above described land" is valid and reserves to the grantor the title to all mineral in and on the land.

3. MINES AND MINERALS. Owner of mineral may remove it from land though other person owns surface but must allow sufficient land to remain to support surface.

Where one person owns the surface of land and another the mineral therein, the owner of the mineral may remove it from the land, but in so doing he must allow sufficient of the subjacent land to remain to support the surface in its natural state, although the mineral may be of more value than the surface.

4 INJUNCTION. Owner of minerals not enjoined from removing it at instance of owner of surface unless injury to surface is irreparable.

Where one person owns the surface of land and another the mineral therein and to remove the mineral will injure the surface the owner of the mineral will not be enjoined from removing it at the instance of the owner of the surface, but the owner of the surface will be remitted to his action at law for damages unless the injury to the surface is irreparable.

5 INJUNCTION. Essentials of "irreparable injury" stated.

The essential features of an "irreparable injury" are: (1) That the injury is an act which is a serious change of, or is destructive to, the property it affects either physically or in the character in which it has been held and enjoyed. (2) That the property must have some peculiar quality or use such that its pecuniary value, as estimated by a jury, will not fairly recompense the owner for the loss of it.

6. INJUNCTION. Land will be protected without reference to quality, use, or value.

Land is per se property of peculiar value, and will be protected by injunction without reference to its quality, use, or value.

7. INJUNCTION. Continuous trespass enjoined.

If a trespass is continuous in its nature, and repeated acts of trespass are done or threatened, although each of such acts taken by itself may not be destructive or inflict irreparable injury, and the legal remedy may therefore be adequate for each single act, if it stood alone, the entire wrong may be prevented or stopped by injunction.

8. INJUNCTION. Owner of minerals enjoined from removal where removal will injure surface.

The rule that an injunction will not be granted or refused where so to do would injure the person enjoined or refused more than the opposite party has no application in a suit by the owner of the mineral in land to enjoin the owner of the surface from interfering with the removal of the mineral when to remove it will injure the surface.

HON. A. J. McINTYRE, Chancellor.

APPEAL from chancery court of Tishomingo county, HON. A. J. MCINTYRE, Chancellor.

Bill by D. T. MOSS against J. C. Jourdan. From decree giving insufficient relief, the complainant appeals, and the defendant cross-appeals. Affirmed.

Affirmed.

Cox & Cox, for appellant.

The ownership of mineral, where there has been a severance of mineral from the surface either by grant or reservation or exception, ordinarily implies, as of course, the right to go upon the land and take and remove the mineral, to destroy, at least in part, the surface, if necessary, as by digging pits, opening shafts, etc., and to use so much of the surface as may be necessary in mining operations. This is implied in every grant of the mineral reserving the surface, and in every grant of the surface reserving the mineral; and is held to be in contemplation of the parties to the instrument by which the severance is effected. To hold otherwise would nullify the right to sever the surface and mineral rights, which right the authorities uniformly hold. 27 Cyc. 688; 20 A. & E. Ency. 774; Mervin v. Brewster, 55 N.Y. 538, 14 Am. Rpts. 322; Atterbury v. Blair, 244 Ill. 363, 135 Am. St. Rpts. 343; Demoss v. Sample (La.), 78 So. 486.

Note at page 690, of 68 L. R. A., which quotes Lord Fitzgerald in Darley Main Colliery Company v. Mitchel, L. R. 11, App. Cas. 127, to the effect that it is settled law that the owner of subjacent minerals may excavate and remove them to the utmost extent, but should exercise that right so as not to disturb the lawful employment of the owner of the surface. The excavation and removal of the minerals does not per se, constitute an actionable invasion of the right, although subsequent events show that no adequate supports have been left to sustain the surface, but when in consequence of not leaving or providing sufficient supports, a disturbance of the surface takes place, that disturbance is an invasion of the right of the owner of the surface, and constitutes his cause of action.

This right is held however by many cases subject to the limitation that mining operations must be so conducted as not to cause the subsidence or destruction of the surface, it being the right of the owner of the surface to have the surface supported and preserved in its original position and substantial integrity, though not, it must be borne in mind, to such an extent as to deny right to sink shafts, dig tunnels, etc.

This doctrine has been upheld and enforced to such an extent as to deny to the owner of shale underlying land and itself practically constituting the surface (there being only about two or three inches of soil over the shale) the right to take and remove the shale because this could not be done without destroying the surface. Bibby v. Bunet (Ala.), 58 So. 916.

In this case, while the surface overlying the shale was thin, it was well timbered, covered with grasses and herbs and valuable for agricultural and residential purposes. The court sustained a permanent injunction against the owners of the mineral rights, restraining them from disturbing, destroying, removing or endangering the soil or surface, or the herbs, grasses or timber thereon, and this without any regard to the relative value of the mineral and the surface right, the court holding pecuniary compensation inadequate.

This is a very extreme case. If it be held to be the law in Mississippi, then appellant, though incontestably the owner of all the gravel on the land in controversy (even under the authority of this very case), has no power to take and move any part of it; and, regardless of the fact, that the underlying gravel is vastly more valuable than the surface, and that the pecuniary value of much of the surface where the gravel is most abundant and accessible is very slight, and in fact almost negligible (see testimony of S. H. Allen at pages 88 and 89 of record J. C. Jourdan at page 112, of record), yet appellant must have left untouched a large and valuable property that is justly his, in order that it may serve as support for the surface soil of appellee, which according to himself and his own witness is practically worthless.

Fortunately this court is not bound by any ancient precedents in this matter. The question is still one of first impression, and this court is free to adopt whatever rule upon the subject it thinks will best promote the intention and wishes of parties to conveyances like that in the case at bar, and which will be wisest and best as a matter of public policy.

We respectfully submit that it would be more consonant with reason and justice and more promotive of the public interest for the court to hold that, while in the mining of coal and other minerals, that lie in comparatively thin strata deep below the surface, the miner must preserve surface substantially in its original integrity; this rule should not apply to owners of such minerals as shale, gravel and building stone, which lie in thick strata, immediately beneath the surface and cannot be quarried without breaking the surface. In such cases where the grantor conveys the surface, reserving the minerals, or conveys the mineral reserving the surface, the character of the mineral and the nature of the operations required for its removal, are always well known to both parties to the conveyance; and they should be held as a matter of law to have contracted with reference thereto; and the property in or ownership of the mineral, should be held, as a matter of law, to carry with it the perfect right to do whatever may be reasonably necessary for taking possession of and utilizing the mineral.

Such a rule of construction in cases of this character would have the merit of common sense, would effectuate the understanding and intention of the parties to the conveyance, would do equity and justice as between the parties and would promote the development of the natural resources of the state in the materials needed in the building of streets and highways and the erection of houses and other edifices.

The question presented here for decision is emphatically one of first impression in Mississippi. We count ourselves fortunate in being able to present it to a court that has long freed itself from the shackles of extreme technicality; that is controlled by no slavish...