EDYTHE E. LEYDA brought suit against Mary Clark Steele and the Evans Fuel Company, for damages for the subsidence of her lots in the town of Frederick, Weld county, which she alleges was caused by the defendants operating a mine underneath her lots, without maintaining proper pillars and support.
The plaintiff in error Steele and two others, as the original joint owners of these and other lands, platted and subdivided the same into lots, blocks, streets and alleys, for residence and business purposes, which became a part of the town of Frederick. In December, 1925, plaintiff in error Steele and her co-owners conveyed the lots in question to defendant in error, with the following reservations in the deed of conveyance: "Provided always, and these presents are upon the express condition, that all coal, gas, oil or all other valuable mineral deposits, in or under said premises already, or which may hereafter be found, are reserved and excepted by the first parties hereto, together with the right of underground access thereto, and with full right to mine, remove and appropriate the same. "
Thereafter defendant Steele executed a lease, conveying the coal underneath the lots, with a reservation for royalties, to the Evans Fuel Company, and in pursuance of its terms the company mined and removed the coal, without leaving pillars or support, which caused a subsidence of the surface, to the damage of the plaintiff's residence, garage and other improvements. No question was raised below or here about the buildings contributing to the subsidence of the surface.
The defendants, for an affirmative defense, in substance allege that the uniform custom, for forty years, of mining coal in the Northern coal fields, which embraced these premises, has always been to mine and remove all coal without substituting artificial support for the surface, and that the surface has always subsided following the removal of the coal, and no way has never been known by which coal could be removed by leaving sufficient support, either
of coal or artificial substitute, to sustain the surface, without incurring an expense several times in excess of the value of the coal, and that it has been economically impossible to mine the coal in the condition that sufficient support should be left to maintain the surface in its natural state, and that this custom was notorious and known to the plaintiff at the time of the execution of the deed to her.
A general demurrer was interposed by the plaintiff to this defense, which was sustained by the court.
Upon the trial of the issues raised by the pleadings, the jury returned a verdict in favor of the plaintiff, and to review the judgment entered thereon, the defendants come here on error.
One of the contentions of the plaintiffs in error is that the reservations in the deed to Leyda gives the right to carry on their mining operations and to remove all the coal, without leaving sufficient support to uphold the surface, and without liability for damages for the subsidence of the superincumbent soil.
It is familiar law that there may be two freeholds in the same body of land, that is to say, a freehold in the surface soil and enough of the earth lying beneath the surface to support it, and a freehold in the minerals underneath the surface estate, with a right of access to mine and extract the minerals. It is also well established, by the great weight of authority, that the owner of the surface has a right to have the superincumbent soil supported from below in its natural state, and that such right is an incident to the ownership of the surface. Washburn's Easements and Servitude, p. 631; 2 Snyder on Mines, §§ 1018, 1020, and 1021. In this state the right to surface support has been long recognized by statute. Section 3299, C. L. 1921, enacted in 1874, reads as follows: "When the right to mine is in any case separate from the ownership on right of occupancy to the surface, the owner or rightful occupant of the surface may demand satisfactory security from the miner, and if it be refused may enjoin such miner from working until such security is given." * * *
This court has held: "that when the surface of land belongs to one, an the coal thereunder to another, the owner of the coal cannot remove it without leaving support sufficient to maintain the surface in its natural state." Campbellv. Louisville C. M. Co., 39 Colo. 379, 381, 89 P. 767, 10 L.R.A. (N.S.) 822; Burt v. Rocky Mtn. Fuel Co.,71 Colo. 205, 205 P. 741. And in a later case we said: "It is almost universally held that where the ownership of the surface and the mineral is severed, the owner of the mineral may take it out, but must support the surface. "Barker v. Mintz, 73 Colo. 262, 215 P. 534.
In the instant case the owners of the fee granted the surface and reserved the mineral underneath, with the right to extract and remove the coal. Such a reservation, standing alone, does not imply immunity from damage for the subsidence of the surface caused by the removal of the mineral, Mickle v. Douglas, 75 Ia. 78, 39 N.W. 198;Weaver v. Berwind-White Coal Co., 216 Pa. 195,65 Atl. 545.
The right to damage or destroy the surface is clearly a subject for bargain, grant or reservation, and the rule of construction of a reservation of the minerals in a deed of conveyance, is not to imply a right to injure or destroy the surface, unless the right to do so is made clear, and expressed in terms so plain as to admit of no doubt. Burgnerv. Humphrey, 41 Ohio St. 340; Catron v. So. Butte MiningCo., 181 Fed. 941, 104 C.C.A. 405; Collins v. Gleason CoalCo., 140 Ia. 114, 115 N.W. 497, 118 N.W. 36, 18 L.R.A. (N.S.) 736; Piedmont George's Creek Coal Co. v. Kearney,114 Md. 496, 79 Atl. 1013; Silver Spgs. Co. v. VanNess, 45 Fla. 559, 34 So. 884; Jones on Easement, § 599.
The terms of the reservation in the deed before us import no right to let down or damage the surface. The reservation simply withholds the coal from the grant, with the right of access and to mine and remove the same. InCampbell v. Louisville Co., supra, we held that the law implied a covenant to support the surface, and in the absence
of an express covenant the law would read such a covenant into the instrument of conveyance. If so, let us then, frame a covenant, as nearly as we may, expressing it in the phraseology of Justice Gabbert in his opinion in that case, and read the covenant thus framed and the reservation together, as if they were in juxtaposition in the deed itself, so we may the more readily see the exact terms of the deed before us.
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EDYTHE E. LEYDA brought suit against Mary Clark Steele and the Evans Fuel Company, for damages for the subsidence of her lots in the town of Frederick, Weld county, which she alleges was caused by the defendants operating a mine underneath her lots, without maintaining proper pillars and support.
The plaintiff in error Steele and two others, as the original joint owners of these and other lands, platted and subdivided the same into lots, blocks, streets and alleys, for residence and business purposes, which became a part of the town of Frederick. In December, 1925, plaintiff in error Steele and her co-owners conveyed the lots in question to defendant in error, with the following reservations in the deed of conveyance: "Provided always, and these presents are upon the express condition, that all coal, gas, oil or all other valuable mineral deposits, in or under said premises already, or which may hereafter be found, are reserved and excepted by the first parties hereto, together with the right of underground access thereto, and with full right to mine, remove and appropriate the same. "
Thereafter defendant Steele executed a lease, conveying the coal underneath the lots, with a reservation for royalties, to the Evans Fuel Company, and in pursuance of its terms the company mined and removed the coal, without leaving pillars or support, which caused a subsidence of the surface, to the damage of the plaintiff's residence, garage and other improvements. No question was raised below or here about the buildings contributing to the subsidence of the surface.
The defendants, for an affirmative defense, in substance allege that the uniform custom, for forty years, of mining coal in the Northern coal fields, which embraced these premises, has always been to mine and remove all coal without substituting artificial support for the surface, and that the surface has always subsided following the removal of the coal, and no way has never been known by which coal could be removed by leaving sufficient support, either
of coal or artificial substitute, to sustain the surface, without incurring an expense several times in excess of the value of the coal, and that it has been economically impossible to mine the coal in the condition that sufficient support should be left to maintain the surface in its natural state, and that this custom was notorious and known to the plaintiff at the time of the execution of the deed to her.
A general demurrer was interposed by the plaintiff to this defense, which was sustained by the court.
Upon the trial of the issues raised by the pleadings, the jury returned a verdict in favor of the plaintiff, and to review the judgment entered thereon, the defendants come here on error.
One of the contentions of the plaintiffs in error is that the reservations in the deed to Leyda gives the right to carry on their mining operations and to remove all the coal, without leaving sufficient support to uphold the surface, and without liability for damages for the subsidence of the superincumbent soil.
It is familiar law that there may be two freeholds in the same body of land, that is to say, a freehold in the surface soil and enough of the earth lying beneath the surface to support it, and a freehold in the minerals underneath the surface estate, with a right of access to mine and extract the minerals. It is also well established, by the great weight of authority, that the owner of the surface has a right to have the superincumbent soil supported from below in its natural state, and that such right is an incident to the ownership of the surface. Washburn's Easements and Servitude, p. 631; 2 Snyder on Mines, §§ 1018, 1020, and 1021. In this state the right to surface support has been long recognized by statute. Section 3299, C. L. 1921, enacted in 1874, reads as follows: "When the right to mine is in any case separate from the ownership on right of occupancy to the surface, the owner or rightful occupant of the surface may demand satisfactory security from the miner, and if it be refused may enjoin such miner from working until such security is given." * * *
This court has held: "that when the surface of land belongs to one, an the coal thereunder to another, the owner of the coal cannot remove it without leaving support sufficient to maintain the surface in its natural state." Campbellv. Louisville C. M. Co., 39 Colo. 379, 381, 89 P. 767, 10 L.R.A. (N.S.) 822; Burt v. Rocky Mtn. Fuel Co.,71 Colo. 205, 205 P. 741. And in a later case we said: "It is almost universally held that where the ownership of the surface and the mineral is severed, the owner of the mineral may take it out, but must support the surface. "Barker v. Mintz, 73 Colo. 262, 215 P. 534.
In the instant case the owners of the fee granted the surface and reserved the mineral underneath, with the right to extract and remove the coal. Such a reservation, standing alone, does not imply immunity from damage for the subsidence of the surface caused by the removal of the mineral, Mickle v. Douglas, 75 Ia. 78, 39 N.W. 198;Weaver v. Berwind-White Coal Co., 216 Pa. 195,65 Atl. 545.
The right to damage or destroy the surface is clearly a subject for bargain, grant or reservation, and the rule of construction of a reservation of the minerals in a deed of conveyance, is not to imply a right to injure or destroy the surface, unless the right to do so is made clear, and expressed in terms so plain as to admit of no doubt. Burgnerv. Humphrey, 41 Ohio St. 340; Catron v. So. Butte MiningCo., 181 Fed. 941, 104 C.C.A. 405; Collins v. Gleason CoalCo., 140 Ia. 114, 115 N.W. 497, 118 N.W. 36, 18 L.R.A. (N.S.) 736; Piedmont George's Creek Coal Co. v. Kearney,114 Md. 496, 79 Atl. 1013; Silver Spgs. Co. v. VanNess, 45 Fla. 559, 34 So. 884; Jones on Easement, § 599.
The terms of the reservation in the deed before us import no right to let down or damage the surface. The reservation simply withholds the coal from the grant, with the right of access and to mine and remove the same. InCampbell v. Louisville Co., supra, we held that the law implied a covenant to support the surface, and in the absence
of an express covenant the law would read such a covenant into the instrument of conveyance. If so, let us then, frame a covenant, as nearly as we may, expressing it in the phraseology of Justice Gabbert in his opinion in that case, and read the covenant thus framed and the reservation together, as if they were in juxtaposition in the deed itself, so we may the more readily see the exact terms of the deed before us. Such an implied covenant would be in substance as follows: The parties of the first part covenant and agree to find with the parties of the second part, that the party of the first part will so "conduct mining operations" underneath said premises so as "to leave and supply such support as will prevent the superincumbent soil from subsiding" and so "as not to damage the surface by undermining," and will "only remove so much coal as it can get without injury to the surface" Such is the implied covenant which we held the law would read into the instrument of conveyance. It is apparent that the terms of such a covenant cannot be tortured by construction into a covenant of immunity against damages for undermining and letting down the surface.
From what we have said in the former cases, the right to surface support in the absence of express or implied waiver, is an absolute right, and the owner of the surface estate has the right to demand this support even if, to that end, it becomes necessary to leave every foot of coal untouched under her estate, unless the subjacent owner gives security for damages. Section 3299, C. L. 1921.
Of course the owner of the mineral estate has a right to all the coal under these lots, but they have no right to take any of its to the injury of the surface estate, without giving security for damages. The measure of the enjoyment of their mineral estate must be determined by the measure of their absolute duty to protect the owner of the surface from injury. If the cost of operating the mineral estate is prohibitive, no rule of right arises therefrom to operate it in their own way at the expense of another to estate.Bibby v. Bunch, 176 Ala. 585, 58. 916; Miles v. Pa. Coal Co., 217 Pa. 449, 451, 66 Atl. 764. 10 Ann. Cas. 871.
Plaintiff's in error further contend that the uniform custom to those engaged in mining in the Northern Coal fields was to extract all the coal from the mine without leaving any artificial support of the surface, which the plaintiffs well knew, and that a deed executed under such circumstances must be construed in the light of the uniform custom then in vogue in that locality. This contention, in the circumstances of this case, cannot be sustained. It is well established by the authorities, that a custom relating to a particular business, in order to be available for the purposes of determining the rights of the parties to an agreement, must be uniform, notorious and reasonable. Savagev. Pelton, 1 Colo. App. 148, 27 P. 948; Heistand v.Bateman, 41 Colo. 20, 91 P. 1111. The custom contended for in this case is repugnant to the established law of this state. Campbell v. Louisville Coal Co., supra; Burt v.Rocky Mtn. Fuel Co., supra; Section 3299, C. L. 1921. Furthermore, this alleged custom lacks the element of common consent, and therefore is wanting in uniformity. Both of the cases of Campbell v. Louisville Co., supra, andBurt v. Rocky Mtn. Fuel Co., supra, arose in the Northern coal fields, which conclusively establishes the absence of common consent in that locality. The rights of the parties in the one case were adjudicated in 1906, and in the other in 1920, and they were resolved adversely to the contention made here by plaintiff in error The alleged custom then was not uniform by common consent. To undermine and let down the superincumbent soil owned by another is a legal wrong. The continued practice of a class of persons in committing wrongful acts destructive of the property rights of others cannot give rise to a right to overthrow the statutes or to nullify the law of adjudicated cases and thereby establish a rule of law contrary to legislative enactments and judicial decisions. the alleged uniform custom has no existence in fact and is unreasonable, because repugnant to and inconsistent with existing law.
Greenleaf says: A custom or usage is "not * * * permitted to have effect, when they contravene any established general rule of the law." 2 Greenleaf Ev. Sec. 249.
"A right so to work mines as to injure the surface by removing its subjacent support cannot be claimed by custom, a custom to that effect being unreasonable." 18 Am. Eng. Ency. of Law (2d Ed.) P. 556.
And it has been held that "a custom among miners is not allowed to destroy the surface support by removing the pillars. Such a custom would be void." Railroad v. MiningCo., 138 Mo. App. 129, 133. See also Snyder on Mines, §§ 1018, 1019; Horner v. Watson 79 Pa. 242, 21 Am. Rep. 55; Hilton v. Granville, 5 Q. B. 701; Randolph v. Halden,44 Ia. 327; Coleman v. Chadwick, 80 Pa. 81, 21 Am. Rep. 93: Fleming v. King, 100 Ga. 449, 28 S.E. 289; 3 Ency. Ev. 957.
The answer to the contention of the plaintiff in error, that the words of the reservation, to mine without surface support, were inserted in the deed in view of the custom alleged in the affirmative defense, and that the reservation must be interpreted accordingly, is that no such custom in face existed in the Northern coal fields, or could have existed, because of is unreasonableness, in that it was in contravention of established, law, and therefore it could not have entered into the terms of the deed as made by the parties.
Finding no prejudicial error in the record, the judgment of the court below will be affirmed.
MR. CHIEF JUSTICE ALLEN and MR. JUSTICE DENISON. dissent.