CULLEN, Commissioner.
Under standard “broad form” mineral deeds of the character commonly employed in the Appalachian region in the early 19Q0’s in the acquisition of mineral rights, the Kentucky River Coal Corporation owns the coal rights in a large acreage in eastern Kentucky. Coal mining operations on various of its lands are carried on, under leases, by Kentucky Oak Mining Company, Oak Branch Mining Company, Midland Mining Company and North Fork Coal Company.
LeRoy Martin and his wife own a 10-acre parcel of land in Knott County which in former ownership was part of a larger, 90-acre tract. Most of the parcel is hillside land but there is a small area of bottom land which is occupied by the Martins’ dwelling house, outbuildings, and garden. In 1905 the mineral rights under the entire 90-acre tract were conveyed by the then owners to the predecessor in title of the Kentucky River Coal Corporation, under a “broad form” deed.
In September 1965 the Martins, alleging that the Kentucky River Coal Corporation and its lessee-operators were proposing the commencement of strip or auger mining operations on the Martins’ land, brought the instant action seeking a declaration that under the mineral deed the owner of the minerals had no right to remove the coal by strip or auger mining. The coal companies answered asserting that they did have such right, and setting forth various other defenses. Ultimately, judgment was entered declaring that the mineral owner has the right to remove the coal by strip or auger mining but must pay damages to the surface owner for any destruction of the surface.
The Martins have appealed, maintaining that the judgment is erroneous in holding that the right to use strip or auger methods exists, and Kentucky River Coal Corporation, Kentucky Oak Mining Company and Oak Branch Mining Company have cross-appealed, contending that the judgment is in error in imposing upon the mineral owner the obligation to pay damages.
This is not a new problem. In Buchanan v. Watson, Ky., 290 S.W.2d 40, this court held squarely that under the broad form deed coal may be removed by strip mining without any obligation to pay damages except for those caused by oppressive, arbitrary, wanton or malicious action. (Ten years before Buchanan, in Treadway v. Wilson, 301 Ky. 702, 192 S.W.2d 949, the court in effect held that strip mining can be done under the broad form deed so long as it is not done “oppressively”.) This ruling was adhered to, and extended to include auger mining, in Bevander Coal Co, v. Matney, Ky., 320 S.W.2d 301; Blue Diamond Coal Co. v. Neace, Ky., 337 S.W.2d 725; Kodak Coal Co. v. Smith, Ky., 338 S.W.2d 699; Ritchie v. Midland Mining Co., Ky., 347 S.W.2d 548; Wright v. Bethlehem Minerals Co., Ky., 368 S.W.2d 179; Blue Dia[397]*397mond Coal Co. v. Campbell, Ky., 371 S.W.2d 483; and Croley v. Round Mountain Coal Co., Ky., 374 S.W.2d 852. So the issue in the instant case is simply whether the court shall stay with Buchanan v. Watson and the subsequent cases based upon it. (Other issues are raised in the briefs, as to whether there is in fact an actual controversy, whether there is a defect of parties, and whether the Attorney General properly was permitted to intervene in the lower court, but we do not consider it necessary to pass upon them because our decision on the merits of the main issue will render the other issues moot.)
The court has been favored with briefs amicus curiae on behalf of the Kentucky Civil Liberties Union, the Commonwealth, The Appalachian Group to Save the Land and People, Inc., the Kentucky Members of the National Council of Coals Lessors, Inc., the Sierra Club, and the Big Sandy-Elkhom Coal Operators Association. The briefs have been most helpful and have presented ably and forcefully (as have those of the parties) the arguments pro and con.
The court is fully aware of the great public concern with the conservation problems attendant upon strip and auger mining, and the urgent necessity to protect the soil and the water courses from destruction and pollution. However, counsel for the landowners, and for those amicus curiae who side with them in arguing that the broad form deed does not permit strip or auger mining, frankly concede that a decision of this court upholding their contention as to the construction of the deed will not stop strip or auger mining. They admit that in Pennsylvania and West Virginia, where the courts have held that the broad form deed does not authorize strip or auger mining, that type of mining is even more prevalent than in eastern Kentucky. And of course it is common knowledge that strip mining has been done on a large scale in western Kentucky where the broad form deed was not commonly used.
So conservation is not in issue. The issue is whether the owners of minerals, who clearly have the right to remove the coal by deep mining processes, must purchase from the landowner the right to use strip or auger processes.
The arguments by the landowners and their adherents are that (1) the parties to the mineral deeds could not reasonably have intended that the surface could be “destroyed” in the removal of the minerals, because there would have been no point in the landowners’ retaining surface title if it could be rendered worthless by the mineral owner; (2) it is unfair, unjust and inequitable to construe the deeds to allow “destruction” of the surface; (3) the parties to the deeds did not contemplate the development of strip and auger mining; (4) the word “mining” in the deeds embraces only mining by underground workings; (5) the right to “use” the surface granted to the mineral owner does not include the right to “destroy”; (6) the mineral owners should be estopped from strip or auger mining any area upon which they have permitted the surface owner to make improvements.
We think the first five arguments can be refined into one basic argument, that the broad form deed does not mean, and could not reasonably have been intended to mean, when it grants to the mineral grantee the right to use the surface of the land “as may be necessary or convenient to the exercise and enjoyment of the property rights and privileges hereby * * * conveyed,” that the use, regardless of old or new methods, could be such as to destroy the value of the surface for agricultural or residential purposes. Whether or not the parties actually contemplated or envisioned strip or auger mining is not important — the question is whether they intended that the mineral owner’s rights to use the surface in removal of the minerals would be superior to any competing right of the surface owner.
Of course in endeavoring to find the intent of the parties we must consider the situation and circumstances existing when the deeds were made. Of significance, we think, are the following circum[398]
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CULLEN, Commissioner.
Under standard “broad form” mineral deeds of the character commonly employed in the Appalachian region in the early 19Q0’s in the acquisition of mineral rights, the Kentucky River Coal Corporation owns the coal rights in a large acreage in eastern Kentucky. Coal mining operations on various of its lands are carried on, under leases, by Kentucky Oak Mining Company, Oak Branch Mining Company, Midland Mining Company and North Fork Coal Company.
LeRoy Martin and his wife own a 10-acre parcel of land in Knott County which in former ownership was part of a larger, 90-acre tract. Most of the parcel is hillside land but there is a small area of bottom land which is occupied by the Martins’ dwelling house, outbuildings, and garden. In 1905 the mineral rights under the entire 90-acre tract were conveyed by the then owners to the predecessor in title of the Kentucky River Coal Corporation, under a “broad form” deed.
In September 1965 the Martins, alleging that the Kentucky River Coal Corporation and its lessee-operators were proposing the commencement of strip or auger mining operations on the Martins’ land, brought the instant action seeking a declaration that under the mineral deed the owner of the minerals had no right to remove the coal by strip or auger mining. The coal companies answered asserting that they did have such right, and setting forth various other defenses. Ultimately, judgment was entered declaring that the mineral owner has the right to remove the coal by strip or auger mining but must pay damages to the surface owner for any destruction of the surface.
The Martins have appealed, maintaining that the judgment is erroneous in holding that the right to use strip or auger methods exists, and Kentucky River Coal Corporation, Kentucky Oak Mining Company and Oak Branch Mining Company have cross-appealed, contending that the judgment is in error in imposing upon the mineral owner the obligation to pay damages.
This is not a new problem. In Buchanan v. Watson, Ky., 290 S.W.2d 40, this court held squarely that under the broad form deed coal may be removed by strip mining without any obligation to pay damages except for those caused by oppressive, arbitrary, wanton or malicious action. (Ten years before Buchanan, in Treadway v. Wilson, 301 Ky. 702, 192 S.W.2d 949, the court in effect held that strip mining can be done under the broad form deed so long as it is not done “oppressively”.) This ruling was adhered to, and extended to include auger mining, in Bevander Coal Co, v. Matney, Ky., 320 S.W.2d 301; Blue Diamond Coal Co. v. Neace, Ky., 337 S.W.2d 725; Kodak Coal Co. v. Smith, Ky., 338 S.W.2d 699; Ritchie v. Midland Mining Co., Ky., 347 S.W.2d 548; Wright v. Bethlehem Minerals Co., Ky., 368 S.W.2d 179; Blue Dia[397]*397mond Coal Co. v. Campbell, Ky., 371 S.W.2d 483; and Croley v. Round Mountain Coal Co., Ky., 374 S.W.2d 852. So the issue in the instant case is simply whether the court shall stay with Buchanan v. Watson and the subsequent cases based upon it. (Other issues are raised in the briefs, as to whether there is in fact an actual controversy, whether there is a defect of parties, and whether the Attorney General properly was permitted to intervene in the lower court, but we do not consider it necessary to pass upon them because our decision on the merits of the main issue will render the other issues moot.)
The court has been favored with briefs amicus curiae on behalf of the Kentucky Civil Liberties Union, the Commonwealth, The Appalachian Group to Save the Land and People, Inc., the Kentucky Members of the National Council of Coals Lessors, Inc., the Sierra Club, and the Big Sandy-Elkhom Coal Operators Association. The briefs have been most helpful and have presented ably and forcefully (as have those of the parties) the arguments pro and con.
The court is fully aware of the great public concern with the conservation problems attendant upon strip and auger mining, and the urgent necessity to protect the soil and the water courses from destruction and pollution. However, counsel for the landowners, and for those amicus curiae who side with them in arguing that the broad form deed does not permit strip or auger mining, frankly concede that a decision of this court upholding their contention as to the construction of the deed will not stop strip or auger mining. They admit that in Pennsylvania and West Virginia, where the courts have held that the broad form deed does not authorize strip or auger mining, that type of mining is even more prevalent than in eastern Kentucky. And of course it is common knowledge that strip mining has been done on a large scale in western Kentucky where the broad form deed was not commonly used.
So conservation is not in issue. The issue is whether the owners of minerals, who clearly have the right to remove the coal by deep mining processes, must purchase from the landowner the right to use strip or auger processes.
The arguments by the landowners and their adherents are that (1) the parties to the mineral deeds could not reasonably have intended that the surface could be “destroyed” in the removal of the minerals, because there would have been no point in the landowners’ retaining surface title if it could be rendered worthless by the mineral owner; (2) it is unfair, unjust and inequitable to construe the deeds to allow “destruction” of the surface; (3) the parties to the deeds did not contemplate the development of strip and auger mining; (4) the word “mining” in the deeds embraces only mining by underground workings; (5) the right to “use” the surface granted to the mineral owner does not include the right to “destroy”; (6) the mineral owners should be estopped from strip or auger mining any area upon which they have permitted the surface owner to make improvements.
We think the first five arguments can be refined into one basic argument, that the broad form deed does not mean, and could not reasonably have been intended to mean, when it grants to the mineral grantee the right to use the surface of the land “as may be necessary or convenient to the exercise and enjoyment of the property rights and privileges hereby * * * conveyed,” that the use, regardless of old or new methods, could be such as to destroy the value of the surface for agricultural or residential purposes. Whether or not the parties actually contemplated or envisioned strip or auger mining is not important — the question is whether they intended that the mineral owner’s rights to use the surface in removal of the minerals would be superior to any competing right of the surface owner.
Of course in endeavoring to find the intent of the parties we must consider the situation and circumstances existing when the deeds were made. Of significance, we think, are the following circum[398]*398stances which relate particularly to the execution of the deed here in issue but which are typical of the circumstances attending’ the execution of a great many of the broad form deeds. In 1900 only 17 percent of the land in Knott County was improved agricultural land. A great percentage of the land (as was the case with .the 90-acre tract of which the Martin parcel was a part) was hillside land of no productive value. The average value per acre of land in Knott County (in 1900) was only $2.90 per acre. The predecessors in title to the Martin land were paid $3.00 per acre in 1905 for the mineral rights only.
So the argument that no farmer reasonably would have intended that his fields be destroyed by mining operations must be weighed in the light of the fact that there were very few farmers and very few fields involved in the mineral deed transactions. It is of course true that in a number of instances (as in the case before us) there was some bottom land embraced in the deed, and it reasonably can be argued that the owner would not have intended that his bottom land be destroyed. But on the other hand it can just as reasonably be argued that in order to obtain the best price for the mineral rights in his hillside land the owner had to throw in the rights in the bottom land also, and he was willing to take the chance on future destruction of his bottom land to get the immediate money. Otherwise, why did not the landowners simply exclude their bottom land from the deeds ?
Certainly there were various sources of potential . destruction of bottom land, in 1905, even from customary deep mining methods. Slag and waste could have been piled on the land; tram roads requiring land fills could have been built and slides could have been caused (see Wells v. North East Coal Co., 255 Ky. 63, 72 S.W.2d 745); springs could have been filled with dirt and muck, stones and other debris could have been deposited so as to destroy the land for agricultural purposes (see United Carbon Co. v. Webb, 282 Ky. 79, 137 S.W.2d 733); tipples and mine houses could have been built. Under the deeds, use of the land by the surface owner for agricultural purposes was reserved only so far as was consistent with the rights and privileges of the mineral grantee; in other words, agricultural values were specifically subordinated to mineral values.
The argument that the landowners would not have undertaken to sever the mineral title from the surface title, and retain the latter, instead of simply deeding the whole title to the mineral buyers, if they had not contemplated that the surface would retain its value for agricultural and residential uses, is not fully persuasive. We think the fact that in many instances, as here, the landowner was being paid, for the mineral rights alone, practically the full value of his land, might well indicate that the landowner chose to retain the hare title simply for what little value, if any, it might have.
If, as appears well may have been the case, the landowners who executed the broad form mineral deeds at the turn of the century were paid prices which substantially or in large part equaled the full value of the land (at least of the hillside land) we see nothing unfair, unjust or inequitable in construing the deeds in favor of the grantees. Certainly the fact that the surface of the land is worth much more today than it was in 1905 is not a valid reason for saying that the landowners should be paid again.
As concerns the matter of estoppel, we find no basis for an estoppel in the fact that an owner of thousands of acres of mineral rights does not advise a surface owner who is commencing to make improvements that the latter’s rights are subordinate by law to those of the mineral owner, and that some day the mineral owner may reach that land in his mining operations. If there were any estoppel in this case it would be against the Martins, in that they built their improvements after Buchanan v. Watson had been decided, advising the public that strip mining could be done under the broad form deed.
[399]*399We do not mean to discredit the arguments on behalf of the landowners. They have elements of merit and a degree of persuasiveness. However, they do not have the overwhelming force necessary to prevail against the long entrenched rule of our previous cases in reliance upon which property rights have vested. See Blue Diamond Coal Company v. Neace, Ky., 337 S.W.2d 725.
It is suggested that the court in Wiser Oil Company v. Conley, Ky., 346 S.W.2d 718, did depart from the principles of Buchanan v. Watson, in respect to oil rights, and that there is no reason why a similar departure could not be made with respect to coal rights. On its face Wiser purports to be consistent with Buchanan, because the opinion in Wiser undertakes to distinguish Buchanan on the ground that in the broad form mineral deeds there is a waiver-of-damage clause. However, in Croley v. Round Mountain Coal Co., Ky., 374 S.W.2d 852, the court said that the waiver-of-damage clause was not a controlling factor in the Buchanan decision. Perhaps Wiser is distinguishable from Buchanan on some basis other than that stated in the opinion in Wiser, or perhaps it is a departure from Buchanan. In any event we do not feel compelled in this opinion to explain, justify, reconcile or distinguish Wiser. The court has decided to adhere to Buchanan whether or not it conflicts with Wiser.
There remains for consideration the cross-appeal attacking that portion of the judgment which requires the mineral owner to pay damages for destruction of the surface caused by legitimate strip or auger mining operations. The appellants, as cross-appellees, do not undertake with any enthusiasm to argue that this portion of the judgment is correct. ' It appears to us that if, as we in substance are holding, the mineral owner bought and paid for the right to destroy the surface in a good faith exercise of the right to remove the minerals, then there is no basis upon which there could rest an obligation to pay damages for exercising that right. Certainly it could not rest upon any tort principle, and the only other possible basis — a contractual one — does not exist in the terms of the deed. So in our opinion the judgment is erroneous in declaring the obligation to pay damages (except of course for arbitrary, wanton or malicious acts).
On the direct appeal the judgment is affirmed ; on the cross-appeal the judgment is reversed with directions to enter judgment in conformity with this opinion.
WILLIAMS, C. J., and MONTGOMERY, PALMORE and STEINFELD, JJ., concur.
HILL and MILLIKEN, JJ., jointly dissent.
OSBORNE, J., separately dissents.