[862]*862PER CURIAM.
Commerce Union Bank, Trustee of Justin Potter’s Grandchildren’s Trust; Island Creek Coal Company; and Badgett Mine Stripping Corporation appeal from a judgment of the Muhlenberg Circuit Court holding that certain mineral conveyances did not grant the right to mine the coal by the strip or open-pit method.
Commerce Union Bank, Trustee, owns the coal in controversy. Island Creek is lessee of all the coal owned by the bank, and Badgett is sublessee of the No. 11 vein or seam and all veins or seams above No. 11. Kinkade (4 acres), Harper (45 acres), and Gray and Armstrong (35 acres) own the surface over this coal.
In an action filed by the surface owners against the mineral owner and lessees, it was stipulated as follows:
“Plaintiffs do not seek a declaration that the defendants have no rights of any kind in the surface of the real estate. The only issue concerning the mineral severance in this action is whether the grant to the mineral owner precludes the mining of minerals therefrom by the strip method of mining.”
Island Creek conceives the issue to be:
“The principal question to be decided on this appeal upon the record as it now exists is whether the language included in the deeds * * * grants to the appellants, owner, lessee and sublessee, the right to mine the coal within and underlying the appellees’ property by the strip or open pit method of mining, upon the payment of the sum set forth in the severance deeds for each acre used for that purpose.”
The contested mineral severances read in part as follows:
Minerva S. Jarvis to Elijah Bassett, February 21, 1906
“ * * * has bargained and sold and by these presents does bargain sell and convey unto the party of the second part his heirs successors and assigns all the coal and the coal mining privileges in and under the following described tract or parcel of land * *
******
“The party of the second part, his heirs successors and assigns, shall take under this deed the perpetual right to mine and take from under the land hereinabove described all coal that may be in and under the same and dispose of said coal as he or they see proper and is, granted the right, to enter upon said land for the purpose of opening mines and the right to ingress and egress on and beneath the surface to and from any mine opened by the party of the second part, or his successors in title and the right to such surface space as may be necessary in mining operations including the Right of Way for and Railroad that may be necessary for the transportation of said minerals, and for such surface space as it may take for the purpose aforesaid said party of the second part or his successors in title agree to pay before taking same and the party of the first part for herself and her successors in title agrees to accept the sum of thirty dollars per acre if any of said land shall be damaged in mining operations of the party of the second part or his successors he or they shall pay the then owner of the surface of said land at the same rate per acre for the portion so damaged.”
J. F. Gish to Elijah Bassett, June 30, 1906
“ * * * have bargained and sold and by these presents, do bargain sell and convey unto the party of the second part his heirs successors and assigns all the minerals except oil, gas and water with the mining rights and privileges in and under the following described tract of land,' * *
******
“The party of the second part, his heirs successors and assigns shall take under this deed the perpetual right to mine and take from under the land hereinabove described all the minerals heretofore conveyed, and dispose of said minerals as they may see proper, and is granted the [863]*863right to enter upon said land for the purpose of opening mines and the right of ingress and egress on and beneath the surface to and from any mine opened on said land by the party of the second part or his successors in title and the right to such surface space as may be necessary in mining operations including the right of way for any Railroad that may be necessary for the transportation of said minerals under and on said land and for such surface space as it may take for the purposes aforesaid said party of the second part or his successors in title agree to pay before taking same and the parties of the first part for themselves and their successors in title agree to accept, the sum of $fifty per acre if any of said land shall be damaged in mining operations of the party of the second part, or his successors he or they shall pay the then owners of the surface of said land at the same rate per acre for the portion so damaged.”
T. W. Martin to Elijah Bassett, February 23, 1906
“ * * * have bargained and sold and by these presents do bargain sell and convey unto the party of the second part his heirs successors and assigns all the coal and the coal mining privileges in and under the following described tract or parcel of land * *
******
“The party of the second part his heirs, successors and assigns, shall take under this deed the perpetual right to mine and take from under the land hereinabove described all the coal that may be in and under the same and dispose of said coal as he or they see proper, and is granted the right to enter upon said land for the purpose of opening mines and the right of ingress and egress on and beneath the surface to and from any mine opened by the party of the second part, or his successors in title and the Right to such surface space as may be necessary in mining operations including the right of way for any Railroad that may be necessary, for the transportation of said minerals and for such surface space as it may take for the purpose aforesaid. Said party of the second part or his successors in title agrees to pay before taking same and the parties of the first part, for themselves and their successors in title agree to accept the sum of thirty dollars per acre in any of said land shall be damaged in mining operations of the party of the second part or his successors, he or they shall pay the then owner of the surface of said land at the same rate per acre for the portion so damaged.”
Although the early common-law requirement of livery of seisin was inconsistent with the passage of any fee interest in minerals in place as a separate estate, it is now well settled that a conveyance may separate minerals and surface into independent legal estates and that the mineral estates so created may be dealt with as any other fee interest in land. Any deed of minerals carries with it the right to use as much of the surface as may be reasonably necessary to exploit the minerals coupled with the duty of the mineral owner to act with due care to protect the surface owner’s rights. Cf. Wiser Oil Company v. Conley, Ky., 346 S.W.2d 718 (1960).
While it is not unusual for the mineral deed to restrict even these implied rights, the trend within the industry has been to enlarge the grant to the extent that an owner may exploit the minerals on a more efficient and economical basis.
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[862]*862PER CURIAM.
Commerce Union Bank, Trustee of Justin Potter’s Grandchildren’s Trust; Island Creek Coal Company; and Badgett Mine Stripping Corporation appeal from a judgment of the Muhlenberg Circuit Court holding that certain mineral conveyances did not grant the right to mine the coal by the strip or open-pit method.
Commerce Union Bank, Trustee, owns the coal in controversy. Island Creek is lessee of all the coal owned by the bank, and Badgett is sublessee of the No. 11 vein or seam and all veins or seams above No. 11. Kinkade (4 acres), Harper (45 acres), and Gray and Armstrong (35 acres) own the surface over this coal.
In an action filed by the surface owners against the mineral owner and lessees, it was stipulated as follows:
“Plaintiffs do not seek a declaration that the defendants have no rights of any kind in the surface of the real estate. The only issue concerning the mineral severance in this action is whether the grant to the mineral owner precludes the mining of minerals therefrom by the strip method of mining.”
Island Creek conceives the issue to be:
“The principal question to be decided on this appeal upon the record as it now exists is whether the language included in the deeds * * * grants to the appellants, owner, lessee and sublessee, the right to mine the coal within and underlying the appellees’ property by the strip or open pit method of mining, upon the payment of the sum set forth in the severance deeds for each acre used for that purpose.”
The contested mineral severances read in part as follows:
Minerva S. Jarvis to Elijah Bassett, February 21, 1906
“ * * * has bargained and sold and by these presents does bargain sell and convey unto the party of the second part his heirs successors and assigns all the coal and the coal mining privileges in and under the following described tract or parcel of land * *
******
“The party of the second part, his heirs successors and assigns, shall take under this deed the perpetual right to mine and take from under the land hereinabove described all coal that may be in and under the same and dispose of said coal as he or they see proper and is, granted the right, to enter upon said land for the purpose of opening mines and the right to ingress and egress on and beneath the surface to and from any mine opened by the party of the second part, or his successors in title and the right to such surface space as may be necessary in mining operations including the Right of Way for and Railroad that may be necessary for the transportation of said minerals, and for such surface space as it may take for the purpose aforesaid said party of the second part or his successors in title agree to pay before taking same and the party of the first part for herself and her successors in title agrees to accept the sum of thirty dollars per acre if any of said land shall be damaged in mining operations of the party of the second part or his successors he or they shall pay the then owner of the surface of said land at the same rate per acre for the portion so damaged.”
J. F. Gish to Elijah Bassett, June 30, 1906
“ * * * have bargained and sold and by these presents, do bargain sell and convey unto the party of the second part his heirs successors and assigns all the minerals except oil, gas and water with the mining rights and privileges in and under the following described tract of land,' * *
******
“The party of the second part, his heirs successors and assigns shall take under this deed the perpetual right to mine and take from under the land hereinabove described all the minerals heretofore conveyed, and dispose of said minerals as they may see proper, and is granted the [863]*863right to enter upon said land for the purpose of opening mines and the right of ingress and egress on and beneath the surface to and from any mine opened on said land by the party of the second part or his successors in title and the right to such surface space as may be necessary in mining operations including the right of way for any Railroad that may be necessary for the transportation of said minerals under and on said land and for such surface space as it may take for the purposes aforesaid said party of the second part or his successors in title agree to pay before taking same and the parties of the first part for themselves and their successors in title agree to accept, the sum of $fifty per acre if any of said land shall be damaged in mining operations of the party of the second part, or his successors he or they shall pay the then owners of the surface of said land at the same rate per acre for the portion so damaged.”
T. W. Martin to Elijah Bassett, February 23, 1906
“ * * * have bargained and sold and by these presents do bargain sell and convey unto the party of the second part his heirs successors and assigns all the coal and the coal mining privileges in and under the following described tract or parcel of land * *
******
“The party of the second part his heirs, successors and assigns, shall take under this deed the perpetual right to mine and take from under the land hereinabove described all the coal that may be in and under the same and dispose of said coal as he or they see proper, and is granted the right to enter upon said land for the purpose of opening mines and the right of ingress and egress on and beneath the surface to and from any mine opened by the party of the second part, or his successors in title and the Right to such surface space as may be necessary in mining operations including the right of way for any Railroad that may be necessary, for the transportation of said minerals and for such surface space as it may take for the purpose aforesaid. Said party of the second part or his successors in title agrees to pay before taking same and the parties of the first part, for themselves and their successors in title agree to accept the sum of thirty dollars per acre in any of said land shall be damaged in mining operations of the party of the second part or his successors, he or they shall pay the then owner of the surface of said land at the same rate per acre for the portion so damaged.”
Although the early common-law requirement of livery of seisin was inconsistent with the passage of any fee interest in minerals in place as a separate estate, it is now well settled that a conveyance may separate minerals and surface into independent legal estates and that the mineral estates so created may be dealt with as any other fee interest in land. Any deed of minerals carries with it the right to use as much of the surface as may be reasonably necessary to exploit the minerals coupled with the duty of the mineral owner to act with due care to protect the surface owner’s rights. Cf. Wiser Oil Company v. Conley, Ky., 346 S.W.2d 718 (1960).
While it is not unusual for the mineral deed to restrict even these implied rights, the trend within the industry has been to enlarge the grant to the extent that an owner may exploit the minerals on a more efficient and economical basis. Nevertheless, there must be a definite enlargement of specified mining rights in the instrument creating those rights before an owner may conduct mining operations contrary to the rights usually implied in a mineral grant. The enlargement of mining rights may be limited in character; yet at the other end of the spectrum we find some of the grants to be so extensive and all embracing that they are tantamount, in their effect, to grants of all surface rights. There seems to be no happy medium, nor is there any form of grant which may be generally said to reflect the norm of the industry. Realizing the potential fact that no two grants of mining rights may be [864]*864identical, it is necessary that a proper construction of such rights be confined to a deed-to-deed interpretation of clauses in a mineral deed which grant or modify mining rights.
A mineral deed, while embracing the “reasonably necessary” right to use the surface, may further restrict mineral operations to a particular method or methods or, to be more specific, may prohibit mining operations in certain areas or by certain designated methods. If the language of the grant is sufficient to clearly delineate the rights of the surface owner and the mineral owner and thereby establish the method or procedure to be used in the recovery of the minerals, both the surface and mineral owners will be limited to the method or contractual obligation of the parties as thus determined. We have consistently upheld what has been identified as the “broad form” or “Mayo deed” and in so doing have concluded that these deeds grant such overwhelming mining rights that the mineral owner in fact has the right to use the surface of the land, part or all of it, in recovering the coal acquired by the deeds.
This court has reexamined those cases in which we have considered the “broad form” deed and has concluded that the mineral deeds involved in this proceeding, and as quoted herein, do not contain language that is so extensive as to subordinate the rights of the surface estate to the demands of the mineral estate. The language of the conveyances in each of the three deeds is such that it must be readily realized that there was no grant of rights necessary for removing the coal by the open-pit or strip method but rather the language expresses the granting of rights which are primarily those necessary in the conducting of an underground mining operation.
The answer to the question now before us is very well stated in the court’s opinion in Peabody Coal Company v. Erwin, U.S. Court of Appeals, 6th Circuit, 453 F.2d 398 (1971), wherein the court said:
“Our view of the deed in this case indicates that it grants rights impliedly incident to underground mining but that it does not indicate the intention of the parties that the mineral owner bought the right to destroy the surface, or that it was intended that the mineral owner’s rights to use the surface would be superi- or to any competing right of the surface owner.”
The judgment is affirmed.
CLAYTON, LUKOWSKY, PALMORE and STERNBERG, JJ., concur.
STEPHENSON, J., concurs in result only by separate opinion in which JONES, J., joins.
REED, C. J., concurs in result only and files separate concurring opinion.