CHAPTER 1 THE COMMON LAW OF ACCESS AND SURFACE USE IN MINING
| Jurisdiction | United States |
(Nov 1984)
THE COMMON LAW OF ACCESS AND SURFACE USE IN MINING
Russell Tyler **
University of Utah College of Law
Salt Lake City, Utah
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 sytem 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 right...to 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, the judges focused their attention on the intent of the parties to the instrument. Baron Parke viewed it as "clearly the meaning and intention of the grantor, that the surface shall be fully and beneficially held...." As a consequence "the [miner] can be entitled under the reservation only to so much of the mines below as is consistent with the enjoyment of the surface...leaving a reasonable support to the surface."14 The compensation clause did not change the liability of the miner. The clause applied only to damage done from operations on the surface of the land and was not intended to bar other remedies. Baron Alderson believed the case could be decided by the familiar maxim "that he is to use his own property so as to not to injure his neighbor."15 While all of the coal belonged to the miner, he could not remove it without violating the rights of the surface owner. Baron Maule examined the source of the right to surface use: "Now it has not been very distinctly stated whether the defendants rely simply upon their right of property in the mines, and insist that what they have done was in exercise their right of property in the mineral subtracted, or whether it was done under the right expressly reserved to them in the covenant.16
The final English case is Dand v. Kingscote17 decided in 1840. The 1630 deed conveyed farm land reserving all coal mines "together with sufficient wayleave and stayleave to and from the said mines with liberty in sinking and digging pits." Two centuries later the miner's use of the surface included construction of a railway and various buildings. The surface owner sued in trespass. The miner defended on the language of the reservation and the implied...
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