Wardell v. Watson

• Decision Date: 14 November 1887
• Citation: 5 S.W. 605,93 Mo. 107
• Parties: WARDELL v. WATSON.
• Court: Missouri Supreme Court

5 S.W. 605

93 Mo. 107

WARDELL v. WATSON.

Supreme Court of Missouri.

November 14, 1887.

DEED — RESERVATION OF MINING PRIVILEGES — NECESSARY USE OF SURFACE.

Defendant acquired the right of mining, and removing at pleasure, coal and other minerals from under the surface of certain land, of which plaintiff owned the surface. Defendant entered upon the land, sunk a shaft, put up a barn, stables, black-smith shop, and made a pond to gather water for his machinery, but occupying no more of the surface than was necessary for the convenient and profitable operation of the mines. Held, that although defendant owned none of the surface of the land, he had a right to occupy part of the surface, and sink a shaft, and erect hoisting machinery at a convenient place.

Appeal from circuit court, Macon county; ANDREW ELLISON, Judge.

John F. Williams, for respondent. Dysart & Mitchell, for appellant.

BLACK, J.

This was an action of ejectment to recover the surface of 10 acres of land, being that part of the W. ½ of N. W. ¼ of section 14, township 57, range 15, south of the Hannibal & St. Joseph Railroad, in Macon county. On the fifteenth June, 1869, the Central Coal & Mining Company conveyed the surface of the above-described 80 acres to one Tompkins, "reserving to the party of the first part, their assigns and successors, forever, the right of mining, and removing at pleasure, coal and other minerals from under the surface of said land; also, the right and privilege of sinking, if need be, air-shafts for the purpose of working, mining, or removing the same." On the twelfth January, 1871, Tompkins, by quitclaim deed, reconveyed the 10 acres in question to the coal company. The defendant, Watson, acquired his interest in the land through a sale under a deed of trust made by the coal company. The deed of trust bears date October 21, 1873, and the trustee's deed is dated September 9, 1875. The property in both of these deeds is described as the "north-east quarter of the north-west quarter, and the coal under the west half of the north-west quarter," of said section. These deeds also convey other property. Afterwards, and on the twentieth November, 1875, the coal company, by an assignee in bankruptcy, conveyed to Tompkins "the surface of that part of the south end of the west half of the north-west quarter," etc., being the 10 acres in question. The plaintiff has acquired the surface of the whole 80 acres by mesne conveyances.

From the foregoing statement, it will be seen that the defendant, besides the coal under the 80 acres, acquired the surface and coal of the north-east quarter of the north-west quarter of the same sections. This 40 adjoined the 80 on the east of the north half, being the part of the 80 acres furthest from the railroad. In 1876 or 1877, the defendant sold the surface of the 40-acre tract, so that thereafter he did not own the surface of either tract, nor that of any adjoining tract. In 1881, the defendant entered upon the 10 acres, sunk a shaft, put up a barn, stables, blacksmith shop, and made a pond to gather water for his machinery. For the purpose of operating his mines under the surface of the whole 80 acres, he occupies about 2 acres of the surface of the 10 acres. The shaft is 75 feet in depth, and is located 8 feet from the railroad right of way. The evidence shows that he occupies no more of the surface than is necessary for the convenient and profitable operation of the mines. The plaintiff insists that defendant has no right to the possession of any of the surface, even for the purpose of operating the mines beneath. Coal, under the surface of the land, is the subject of a grant or of a reservation. Coal and minerals in place are land, and may be conveyed as such, and when thus conveyed constitute a separate and distinct inheritance. Caldwell v. Fulton, 31 Pa. St. 475. When a thing is granted, all means to attain it, and all the fruits and effects of it, are granted also, without further words. By the grant of mines is granted the power to dig them. Shep. Touch. 89. A reservation of minerals and of mining rights, it is said, is construed as an actual grant thereof; and, though a reservation is to be construed most strongly against the grantor, still there will be retained in him all that it was the clear meaning of the parties to reserve from the conveyance. Marvin v. Mining Co., 55 N. Y. 538. Whether the separate estate, consisting of the coal, was first created by a grant, or by a reservation, is immaterial. In either case the owner of that estate has a right to dig the coal. One who has the right to mine coal, or to take...