JurisdictionUnited States
Rights-of-Way How Right is Your Right-of-Way?
(May 1998)


Donald N. Zillman *
Russell Tyler **
University of Maine School of Law
Portland, Maine

General Overview of the Law of Surface Access

Donald N. Zillman1

Fourteen years ago, I had the pleasure of leading off the Institute's Special Institute on Rights of Access and Surface Use. I was asked to explore the historical origins of surface use and rights of way from a mineral law perspective. Research sessions at the University of Virginia and the University of Utah Law Libraries allowed me to dig into our historical origins—a mining law version of Roots, if you will.

Historical doctrines continue to influence contemporary law. Property law is some of our most conservative law. We hesitate to upset settled expectations. The document that has worked for years is assumed to continue to be attractive. A page of history is worth a good deal.

At the same time, Anglo-American property law has had over time a flexibility that allows resources to move to their most valued uses and allows public preferences to limit some land uses. Our bag of legal doctrines typically provides the tools to create a relationship that works for both parties to a transaction, and often, for the public interest as well.

Your invitation to revisit 1984 provides a delightful chance to review the familiar and update history. The original paper on historical origins of access and right of way law is still sound. It appears in its original form in the sections that follow. We conclude with an update on the surface access and mineral right of way cases since 1984. We identified over 100 of them in the appellate reporters. Appendices classify some of them in ways that may be useful for your research. The concluding section highlights some recent cases and summarizes our findings.

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I. Introduction

We are pleased to be here with you this morning. Our assignment is to provide an introduction to rights of access and surface use in mineral law. We abbreviate this as surface rights. We confine ourselves to the common law developments in surface rights. These arrangements between private land owners originated surface rights law. As presentations about federal and state ownership and regulation will make clear, the common law developments are by no means the final answer to surface rights concerns.

Our task is focused further by the excellent recent revision of the Access chapter of the American Law of Mining. The authors have done a splendid job of compiling the black letter law of surface rights within one chapter. We will not repeat its findings or organization. Rather, we will spend our time on the origins and development of the common law of surface rights. We will examine the factual and legal areas in which surface rights law has developed over the past century in the United States. Our sources are the several hundred cases in which surface rights law has been considered in the United States.1 In these cases we examine both the fact situations giving rise to litigation and the legal theories that have arisen out of the litigation. We begin with an examination of a half dozen English cases, the first decided in 1568 and the last in 1840. We have omitted a few cases but these decisions form the backbone of the English surface rights law that existed at the time that the first United States cases on the subject appeared. The second part of the section examines half a dozen of the first American surface access cases. These English and United States cases set the groundwork for United States surface rights law.

II. The Origins of Surface Rights Law

A. The English Cases

The origins of English surface rights law in mining dates back to at least the reign of Queen Elizabeth. The venerable case of the Queen and the Earl of Northumberland 2 decided in 1568 examined the royal prerogative placing ownership of gold and silver in the crown. The issue before the court was how the privilege was to be applied when gold and silver were mixed with other minerals. In the course of resolving this issue the court observed that the royal mining privilege was "with liberty to dig and carry away the ores thereof, and with other

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such incidents thereto as are necessary to be used for the getting of the ore."3 The court supplied no citation for the proposition.

Nearly two centuries later the Court of King's Bench decided the case of Wilkes v. Broadbent.4 While the facts are somewhat vague, the dispute resembles many 20th century use and access controversies. The plaintiff surface owners sued in trespass for defendant's action in coming on "their" property to work a coal mine. The reporter's summary of the case charged defendant with "breaking and entering the plaintiff's close at A., treading down the grass, subverting the plaintiff's soil, and for laying wood, slate, and other rubbish on the land,...the plaintiff lost the use of his land."5 Defendant responded that his actions were authorized by a manorial custom that allowed these workings. The court sustained the Court of Common Pleas determination that the custom was unreasonable and void and gave judgment for the surface owner. The court held the asserted custom was too broad and uncertain, and that it "laid such a great burden upon the tenant's land, without any consideration or advantage to him, as tended to destroy his estate, and defeat him of the whole profits of his land, and savours much of arbitrary power...."6 The court further suggested that the "pits may be worked without this custom, for aught that appears to the contrary."7

In 1806 in Hodgson v. Field the court's focus moved from custom to contract.8 In 1747 the predecessors in interest of the parties to the case entered into an agreement for the use of property. Stansfield deeded Marshall the right to build a drain for his coal mining operation across Stansfield's property. The court does not quote the exact language of the deed but the court's summary of it reflects a balancing of the needs of the two landowners. Mine operator Marshall was given the right to conduct the drainage system across Stansfield's land, to make some small pits to assist the operation of the drainage system, to use stones from Stansfield's ground for the purpose and to dump waste on Stansfield's land. Marshall promised to not damage the trees on Stansfield's ground, to allow Stansfield inspection of the drainage system and to repair any damages to Stansfield's fence. Marshall also promised not to remove any coal from under Stansfield's property other than for that incidentally carried by the drainage system.

After a period of operation the mine was shut down and the drainage system fell into disrepair. Half a century later the mine operators' successor in interest wished to start mining again. He entered the property and began a digging to reopen the drainage system. The surface owner's trespass action followed. The surface owner contended that the 1747 grant had

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allowed only a one-time access to the property.

Lord Ellenborough construed the deed to allow continued access to the landowner's property for the purpose of the mining operation. Ellenborough's opinion looked to the implied intention of the parties to the 1747 agreement. He held that it was reasonable to interpret the deed as intending more than a one-time grant of rights involving the drainage system. None of the specific covenants in the deed negated this intent.

In the Earl of Cardigan v. Armitage access rights were again determined by implied agreements.9 The surface owner sued in trespass when the miner entered the property, dug pits and removed coal. The miner traced his right to a 1649 reservation of coals and various access rights. The court determined that defendant did have title to the coal. The court, citing the popular legal treatise Sheppard's Touchstone of Common Assurances, observed that the reservation of the coal also gave as incident "a get the coals, and to do all things necessary for the obtaining of them." This incidental or implied power, however, "would warrant nothing beyond what was strictly necessary for the convenient working of the coals,"10 possibly forbidding such acts as the deposit of material on the surface for longer than necessary or the introduction of potential buyers to inspect the coal. These latter rights, however, were granted by the express terms of the 1649 reservation.

Harris v. Ryding11 decided in 1839 examines the right of support. The mineral owner claimed access rights through a prior reservation. The access rights were defined as "free liberty of ingress, egress, and regress, to come into and upon the premises, to dig, delve, search for, and get &c., the said mines and every part thereof, and to sell and dispose of, take and convey away the same, at their free will and pleasure, and also to sink shafts, and &c., for the raising up works, carrying away and disposing of the same or any part thereof, making a fair compensation to P for the damage to be done to the surface of the premises, and the pasture and crops growing thereon."12 The miners' activity caused the collapse of the land surface. The surface owner brought suit in tort for the wrongful and negligent working of the mine. The miner argued that its use of the land included a right to collapse the surface and that any harm to the premises was controlled by the "fair compensation" clause of the reservation.

The court ruled for the surface owner. The judges interpreted the access agreement as requiring reasonable operation by the miner. One aspect of this reasonable operation was that the surface would not be undercut by the mining. In the words of Baron Parke: "All that the law gives

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a grantor by virtue of the exception, would be a reasonable mode of getting the mines and minerals."13 As in prior cases...

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