Skivolocki v. East Ohio Gas Co.

• Decision Date: 19 June 1974
• Docket Number: No. 73-632,73-632
• Citation: 313 N.E.2d 374,38 Ohio St.2d 244,67 O.O.2d 321
• Parties: , 67 O.O.2d 321 SKIVOLOCKI, Appellant and Cross-Appellee, v. EAST OHIO GAS COMPANY, Appellee and Cross-Appellant.
• Court: Ohio Supreme Court

Page 244

38 Ohio St.2d 244

313 N.E.2d 374, 67 O.O.2d 321

SKIVOLOCKI, Appellant and Cross-Appellee, v. EAST OHIO GAS COMPANY, Appellee and Cross-Appellant.

No. 73-632.

Supreme Court of Ohio.

June 19, 1974.

Syllabus by the Court

1. Contracts are to be interpreted so as to carry out the intent of the parties, as that intent is evidenced by the contractual language.

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

3. 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.

The facts in this case have been stipulated. In 1890, Joseph Hawes held the fee simple title to land in Guernsey County. By deed dated December 26, 1901, Hawes conveyed certain minerals, including the underlying coal, to The National Coal Company. R. J. Skivolocki, appellant herein, is the present owner of this estate originally deeded to National Coal. The balance of Hawes' fee came, through various parties, to Catherine E. Luczak on November 6, 1959.

On July 20, 1969, Catherine E. Luczak and her husband executed a pipe line right-of-way grant to appellee and cross-appellant, East Ohio Gas Company. Pursuant to this grant, a 12-inch gas line was constructed over a portion of the Luczak property.

Appellant filed a complaint in the Court of Common Pleas of Cuyahoga County on May 10, 1971, seeking damages for the taking of his coal by appellee. By that time appellant had, with the Luczaks' consent, moved his equipment onto the land and begun strip mining for coal. When the mining operations drew dangerously near the newly-constructed gas line, appellee sought and obtained a preliminary injunction, from the Common Pleas Court of Guernsey County, to prevent appellant from mining the land adjacent to its gas line. That injunction, made permanent on May 5, 1972, was not appealed.

The case pending in Cuyahoga County was subsequently transferred to Guernsey County for hearing. At pre-trial conference the parties agreed that 'all issues of title and interests in the subject real estate shall be submitted to the court and determined by the court, together with any questions as to the right of either party to damages from the other and that the trial of these issues other than the amount of damages to be recovered, if at all, by either party against the other, shall be tried to the court on September 12, 1972. * * *'

The trial court found that the 1901 conveyance of a mineral estate by Hawes did not include a relinquishment of the right to subjacent support for his surface estate. Since appellee had demonstrated a legal right to subjacent support for its gas line, the court rejected appellant's claim for damages.

Upon appeal, the Court of Appeals held that appellant had not acquired the right to strip mine by virtue of the 1901 deed, but concluded that he had obtained surface rights pertaining to deep mining, and drilling for oil and gas. Because of the interference of the gas line with these rights, the court reversed the judgment of the Court of Common Pleas and remanded the cause 'for the determination of damages caused plaintiff by the Gas Co. other than the consequences of the absence of any legal right to strip mine.'

Appellant has appealed from that judgment insofar as it denies him recovery for damages occasioned by interference with his alleged right to strip mine coal. Appellee cross-appeals from that portion of the judgment which permits appellant to show damages unrelated to his alleged right to strip mine.

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Sheppard & Agnew, John C. Sheppard, Cambridge, and Alex J. Robertson, Alliance, for appellant and cross-appellee.

Kincaid, Micheli, Geyer & Ormond and R. William Geyer, Zanesville, for appellee and cross-appellant.

STERN, Justice.

This dispute centers about the respective rights of the parties, as those rights are traced to and defined by the 1901 mineral deed from Hawes to The National Coal Company. That deed reads, in pertinent part:

'* * * (I convey) all the coal in and under the following real estate, situated in the County of Guernsey in the state of Ohio * * *.

(Description of property omitted.)

'* * * Together with all necessary rights of way under said premises and through the coal aforesaid for the purpose of removing and shipping said coal and coal from adjacent lands, and the right to construct and maintain all necessary air shafts (Reserving and excepting however one acre in a square from under each dwelling, and under the school house, now on said lands.) and the right to lease and operate for oil and gas. Moreover it is agreed that for any and all surface used by the grantee, its successors and assigns, it or they shall pay at the rate of fifty dollars per acre. Hereby granting also to the grantee, its successors and assigns the right to use the shaft now on said premises as an air-shaft or manway for the benefit of grantees coal workings in the coal fields of which said premises are a part.' (Emphasis added.)

Appellant contends that the abovequoted language, and especially the emphasized portion thereof, either grants him the unqualified right to use the surface (except for those portions specifically excluded) in any manner, for $50 an acre, or at least constitutes a waiver of subjacent support for the surface owner. It is a wellknown principle that contracts are to be interpreted so as to carry out the intent of the parties, as that intent is evidenced by the contractual language. State ex rel. Maher v. Baker (1913), 88 Ohio St. 165, 102 N.E. 732; Travelers Ins. Co. v. Buckeye Union Cas. Co. (1961), 172 Ohio St. 507, 178 N.E.2d 792; Olmstead v. Lumbermen's Mutl. Ins. Co. (1970), 22 Ohio St.2d 212, 259 N.E.2d 123; 4 Williston on Contracts (3 Ed.), 303, Section 601.

Appellant suggests that we not be concerned with whether the right to employ strip mining, per se, is included in the deed, but rather direct our inquiry to the more general question of whether the parties intended the surface estate to be servient to the dominant mineral estate. This is the approach adopted by the Kentucky Court of Appeals in Martin v. Kentucky Oak Mining Co. (Ky.1968), 429 S.W.2d 395. There, the mineral grantee, under a 1905 'broad form' deed, had acquired the right to use the surface 'as may be necessary or convenient to the exercise and enjoyment of the property rights and privileges hereby * * * conveyed.' In addition, the grantor had explicitly waived any right to recover damages for injury to his surface estate caused by the grantee's coal mining operation. The Kentucky court, at page 397, stated:

'* * * Whether or not the parties actually contemplated or envisioned strip or auger mining is not important-the question is whether they intended that the mineral owner's rights to use the surface in removal of the minerals would be superior to any competing right of the surface owner.'

After observing that even customary deep mining would be destructive of the surface land due to accumulation of slag and waste, and operation of tram roads, tipples and mine houses, the court concluded that the deed did show an intent that the mineral estate be dominant. The mineral grantee was judged to have acquired the right to strip mine for coal.

We are unable to accept the Kentucky court's approach. Instead of trying to ascertain the intent of the parties at the time the deed was drawn regarding the right to strip mine, our sister state has chosen to broaden the issue. It may well be true that thinking in terms of dominant and servient estates makes more manageable the inquiry into the right to strip mine. However, it is equally possible that such an approach will lead to a result which negates the real intent of the parties to the deed.

The trial court viewed the issue as whether 'the defendant (East Ohio Gas) is entitled to the subjacent support for the surface use made of the land by it under its right-of-way.' Although this approach comes much closer to dealing with the parties' actual intent, as expressed in the 1901 deed, it is not entirely satisfactory. The right to strip mine for coal and the right to subjacent support for a surface estate cannot co-exist, but that does not necessarily imply that they are co-equal rights. In other words, while a waiver of subjacent support is prerequisite to finding a right to strip mine, it is not per se conclusive of such a right. See Rochez Bros. v. Duricka (1953), 374 Pa. 262, 97 A.2d 825; Note, Construction of Deeds Granting the Right to Strip Mine, 40 Cin.L.Rev. 304, 313 (1971); Note, The Common Law Rights to Subjacent Support and Surface Preservation, 38 Mo.L.Rev. 234, 249 (1973).

Underlying both the position taken by the Kentucky court, and that of the trial court in this case, is a valid assumption that strip mining for coal is a more modern, technologically advanced method to provide the mineral estate owner a fuller enjoyment of his property. Yet we cannot ignore the additional fact that strip mining, although similar to deep mining insofar as both represent a means to a legitimate end, necessarily and unavoidably causes total disruption of the surface estate. Timehonored rules of law, meant to insure the mutual enjoyment of severed mineral and surface estates, cannot be blindly applied to resolve a question involving the right to strip mine. This is true, not because those rules lack present vitality, but because they are dependent upon presumptions wholly irrelevant to strip mining. ¹

The highest courts in two other coal-producing states have had occasion to construe mineral deeds. In Stewart v. Chernicky (1970), 439 Pa. 43, 46, 266 A.2d 259, 261, the Pennsylvania court faced the issue of whether the defendant coal company...