Williams v. Gibson

• Court: Alabama Supreme Court
• Writing for the Court: SOMERVILLE, J.
• Citation: Williams v. Gibson, 84 Ala. 228, 4 So. 350 (Ala. 1888)
• Decision Date: 30 May 1888
• Parties: WILLIAMS v. GIBSON.

4 So. 350

84 Ala. 228

WILLIAMS v. GIBSON.

Supreme Court of Alabama

May 30, 1888

Appeal from circuit court, Walker county; S. H. SPROTT, Judge.

This was an action in the nature of ejectment under the statute brought by appellee, Gibson, for the "surface" of certain lands out of which the "minerals," etc had been previously granted, described in the complaint as follows: "The north-east quarter of south-west quarter and all that part of south-east quarter of south-west quarter situate or lying north of the Georgia Pacific Railway section 28, township 15, range 9 west, situate in said county of Walker, state of Alabama, except all the coal and other minerals in, under, and upon said lands; and also except all timber and water upon the same, necessary for the development, working, and mining of said coal and other minerals, and the preparation of the same for market, and the removal of the same; also the right of way and the right to build roads of a description over the same, necessary for the convenient transportation of said coal and other minerals from said land, and the conveying and transporting to and from said land all material and implements that may be of use in the mining and removal of said coal and other minerals, or in the preparation of the same for market." The plaintiff deraigns title to the "surface," as above described, from Green B. Frost; and likewise, the defendant deraigns his title to the "minerals," etc., from the same ancestor, through several mesne conveyances. The witness Smith, mentioned in the last paragraph of the opinion, was one of the intermediary owners of the mineral rights, etc., between said Frost and appellant, Williams. Williams disclaimed all interest in the surface property sued for, excepting three acres, with the structures thereon erected. There was no evidence that any part of said three acres had coking ovens erected thereon, or that appellant was occupying any part thereof for such ovens.

McGuire & Collier and Webb & Tillman, for appellant.

Hewitt, Walker & Porter, for appellee.

SOMERVILLE J.

The present suit, which is one of ejectment under the statute, involves a controversy between the superjacent and subjacent owners of land upon which there is a coal mine, opened and in process of being worked by the defendant. The plaintiff, Gibson, is the owner of the surface, and the defendant, Williams, of the "coal and other minerals," with certain incidental and other rights, derived through various mesne conveyances from one Green B. Frost, the original owner in fee-simple of the premises. In November, 1881, Frost conveyed to one Peters "all the coal and other minerals in, under, and upon" these lands, which are fully described in the deed; "and also all timber and water upon the same, necessary for the development, working, and mining of said coal and other minerals, and the preparation of the same for market, and the removal of the same; and also the right of way, and the right to build roads of any description over the same, necessary for the convenient transportation of said coal and other minerals from said land, and the conveying and transporting to and from said lands all materials and implements that may be of use in the mining and removal of said coal and other minerals, or in the preparation of the same for market." Subsequently, in August, 1884, Frost conveyed the same lands to one C. L. Frost and J. B. Reeves, reserving by exception from the land sold the mineral rights and other interest previously conveyed to Peters, using the same language of description adopted in the deed to him. The defendant is shown to have acquired by deed, through sundry mesne conveyances, the precise interest which Peters owned. This interest may be briefly described under three general heads: (1) A grant of all the coal and other minerals upon or in the land; (2) so much of the timber and water on the land as may be necessary (a) for the development, working, and mining of the coal and other minerals, and (b) for the preparation of the same for the market, and their removal from the soil and premises; (3) the right of way, by roads of any description, to and from the lands, so far as may be necessary for the transportation of all minerals mined, and of materials and implements needed in the business of mining and the preparation of the minerals for market.

The material question is what, if any, surface rights rights pass to the grantee under the first head, which is a grant of all the coal and other minerals upon and in the land. This is dependent in some measure upon the nature and characteristics of the thing granted. Minerals which are unsevered from the soil, or, as sometimes said, which are "in place," are parts of the freehold, and constitute landed property. They are capable of a possession distinct from that of the surface, and may form a separate corporeal hereditament, which is the subject of a distinct inheritance. The title of the soil, as such, including the surface, may be vested in one person; and that of the mines and minerals on it in another. It is only when the minerals are severed from the soil that they become personal chattels, and it is only where the right to dig or to mine them is not exclusive that it may be classed as an incorporeal right or easement merely in the nature of a license. Bainb. Mines, (Amer. Ed.) *3, *261; Massot v. Moses, 3 S.C. 168, 16 Amer. Rep. 697; Caldwell v. Fulton, 31 Pa. St. 475; Melton v. Lambard, 51 Cal. 258; Ryckman v. Gillis, 57 N.Y. 68, 15 Amer. Rep. 464. The express grant of all the minerals or mineral rights in a tract of land is, by necessary implication, the grant also of the right to work them, unless the language of the grant itself repels this construction. This is the result of the familiar maxim that "when anything is granted, all the means of obtaining it, and all the fruits and effects of it, are also granted." 1 Shep. Touch. 89; 11 Coke, 52 a. This involves the incidental right to penetrate the surface of the soil for the minerals, and to use such means and processes for the purpose of mining and removing them as may be reasonably necessary, in the light of modern inventions, and of the improvement in the arts and sciences, but without injury to the support for the surface or superincumbent soil in its natural state.

Marvin v. Mining Co., 55 N.Y. 538, 14 Amer. Rep. 322; Wilms v. Jess, 94 Ill. 464, 34 Amer. Rep. 242; Bainb. Mines, *35, *62, *63. It is said by a standard English autor, touching this subject: "The right to work mines is so inseparable from the grant of them that it has been expressly decided, not only that the right to enter and work mines is necessarily incident to the grant of mines, without any express authority for that purpose, but that this power cannot be restrained by a special power given in the affirmative, which would authorize more acts than would be implied by law, but which will in nowise exclude the full operation of the law." Id. (Amer. Ed.) 34, 35.

It is contended that this incidental right to work the mines on the land is limited by the special grant of certain timber and water privileges, and of the right of way to and from the mines, and that the mention of these privileges under the maxim, erpressio unius, est exclusio alterius, would rebut the grant of any right to occupy the surface of the soil for miners'...