Smith v. Moore
| Decision Date | 31 August 1970 |
| Docket Number | No. 22590,22590 |
| Citation | 474 P.2d 794,172 Colo. 440 |
| Parties | Arthur G. SMITH, Plaintiff in Error, v. Kenneth L. MOORE, Mallie M. Moore, Dora V. Burke Owen, and Dorothy G. Moore, Defendants in Error. |
| Court | Colorado Supreme Court |
Klingsmith & Russell, P. C. Klingsmith, Gunnison, for plaintiff in error.
Seraphine & Alexander, Charles Alexander, Gunnison, for defendants in error.
Davis, Graham & Stubbs, William Hill-house, Denver, for amici curiae.
Since early in the 1900's coal has been removed by the underground mining method from Baldwin Mine located on certain property in Gunnison County. In 1946, L. D. Hardin severed the surface and mineral estates in certain of his property which included the Baldwin Mine and conveyed the surface rights to Otis Moore. The deed to Moore reserved to the grantor the mineral estate together with:
'* * * the right to ingress and egress upon said land for the purpose of mining said coal, oil, gas and other minerals, together with enough of the surface of the same as may be necessary and reasonable for the proper and convenient working of such minerals and substances.'
Hardin subsequently conveyed the mineral estate in that property in 1949 to E. .l. Dutcher who conveyed the same in 1950 to Arthur G. Smith, hereinafter referred to as the plaintiff. Both grants of the mineral estate included the surface rights reserved by Hardin in his deed to Moore.
In 1965, the plaintiff filed a complaint against the defendants, successors in title to Otis Moore, alleging that underground mining is no longer a safe or economical method for extracting the coal from the Baldwin Mine and seeking a declaratory judgment as to his right to strip mine the coal. The defendants answered denying that strip mining was contemplated within the scope of the reservation of the mineral estate and counterclaiming for an injunction against any strip mining by the plaintiff until such time as adequate security would be furnished and the rights of the parties declared.
Following the trial, the judge found that coal has always been removed from the Baldwin Mine by the underground method, and that no clal in Gunnison County, where this mine is situated, has been mined by the strip mine method. The owners of the mineral estate have used the surface for ingress and egress as well as for tipples, storage, buildings, corrals, and other activities in connection with their underground mining. Only in recent years have the operators of the mine become aware of the conditions which method, and that no coal in Gunnison to remove the coal by strip mining. The trial judge consequently held that the rights of the owner of the minerals are limited to underground mining and the use of the surface necessary therefor. The trial court further found that the rights of the owner of the surface are for support for the surface, for no more interruption or displacement of the surface than is necessary in connection with underground mining, and for reimbursement for any damage as a result of use of the surface by the owner of the mineral rights.
The plaintiff takes the position that the deed to the defendants' predecessor in title clearly reserved to the holder of the mineral estate the absolute right to destroy the surface to the extent necessary and reasonable for the proper mining of the underlying minerals. We do not agree that the reservation has the effect argued for by the plaintiff.
This court has held that when the surface and mineral estates have been severed, the owner of the mineral estate may remove the underlying minerals but must support the surface and cannot destroy the surface by strip mining. Barker v. Mintz, 73 Colo. 262, 215 P. 534. While the right to damage or destroy the surface may clearly be a subject for reservation, the rule of construction of a reservation of the minerals in a deed of conveyance is not to imply a right to injure or destroy the surface unless the right to do so is made clear and expressed in terms so plain as to admit of no doubt. Evans Fuel Co. v....
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Belville Min. Co. v. U.S.
...owner's rights to use the surface would be superior to any competing right of the surface owner.' "). See also Smith v. Moore, 172 Colo. 440, 474 P.2d 794, 796 (1970) (where deed contains no express waiver of right to subjacent support by surface estate owner, to permit holder of reserved m......
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Extraction Oil & Gas, Inc. v. Platte River Midstream, LLC (In re Extraction Oil & Gas, Inc.)
...and egress are not real property interests capable of satisfying privity of estate; they are incidental rights. Smith v. Moore , 172 Colo. 440, 474 P.2d 794 (1970) ("Though the privilege to use the surface is recognized at law, this right does not create an ownership interest in the surface......
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City of Northglenn v. Grynberg
...estates have been severed, the mineral estate owner may remove the minerals, but he must support the surface."); Smith v. Moore, 172 Colo. 440, 474 P.2d 794 (1970) (same). Therefore, when Northglenn acquired the surface estate, the obligation of the mineral estate owner to provide subjacent......
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Akers v. Baldwin
...46 (1947); Stewart v. Chernicky, 439 Pa. 43, 266 A.2d 259 (1970); Doochin v. Rackley, 610 S.W.2d 715 (Tenn.1981); Smith v. Moore, 172 Colo. 440, 474 P.2d 794 (1970); and DuBois v. Jacobs, 551 S.W.2d 147 ...
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CHAPTER 1 THE COMMON LAW OF ACCESS AND SURFACE USE IN MINING
...Croley v. Round Mountain Coal Co., 374 S.W.2d 852 (Ky. 1964); Commonwealth v. Fitzmartin, 102 A.2d 893 (Pa. 1954). [57] Smith v. Moore, 474 P.2d 794 (Colo. 1970); State v. Talton, 35 S.E.2d 329 (N.C. 1945); Franklin v. Callicoat, 119 N.E.2d 688, 690 (Ohio Com. Pl. 1954); Brown v. Crozer Coa......
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CHAPTER 1 THE COMMON LAW OF ACCESS AND SURFACE USE IN MINING
...Croley v. Round Mountain Coal Co., 374 S.W.2d 852 (Ky. 1964); Commonwealth v. Fitzmartin, 102 A.2d 893 (Pa. 1954). [57] Smith v. Moore, 474 P.2d 794 (Colo. 1970); State v. Talton, 35 S.E.2d 329 (N.C. 1945); Franklin v. Callicoat, 119 N.E.2d 688, 690 (Ohio Com. Pl. 1954); Brown v. Crozer Coa......
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CHAPTER 3 CHANGING CONCEPTS IN THE DOMINANCE OF THE MINERAL ESTATE
...Co., 278 P.2d 798 (S.Ct. Wyo. 1955). [16] Chartiers Block Coal v. Mellon, 25 Atl. 597 (S.Ct. Pa. 1893). [17] See generally Smith v. Moore, 474 P.2d 794 (Colo. 1970); Frankfort Oil Company v. Abrams, 413 P.2d 190 (Colo. 1966); Barker v. Mintz, 215 P.2d 534 (Colo. 1923); Davis v. Cramer, 793 ......
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CHAPTER 1 REGULATION OF SURFACE USE BY MINERAL DEVELOPERS
...v. Board of County Comm'rs, 270 P.2d 772 (Colo. 1954). [62] Rocky Mtn. Fuel Co. v. Heflin, 366 P.2d 577 (Colo. 1961). [63] Smith v. Moore, 474 P.2d 794, 795 (Colo. 1970), citing Evans Fuel Co. v. Leyda, 77 Colo. 356, 236 P. 1023 (1925). [64] Victor-American Fuel Co. v. Wiggins, 746 P.2d 58 ......