S. H. Banks v. Tennessee Mineral Products Corp.

BeogdeN, J. The plaintiffs own the surface of a tract of land and the defendants oiyn the minerals or feldspar beneath the same. Hence the question of law presented is: What are the relative rights of the parties ? “That mineral substances beneath the surface in the earth may be conveyed by deed distinct from the right to the surface itself is now well settled.” Outlaw v. Gray, 163 N. C., 325, 79 S. E., 676; Hoilman v. Johnson, 164 N. C., 268, 80 S. E., 249. This Court has not been called upon to consider many questions growing out of the mining-industry, and hence no decision has been called to our attention indicating that the principle of sublateral or subjacent support has ever been adopted in this State, or that occasion had ever arisen to discuss the proposition. The general principle deduced from the decisions of states where the mining industry has flourished is that the owner of the surface has the right of subjacent support unless such right has been waived in specific terms or terms reasonably implying such waiver. 40 C. J., p. 1195, et seq.; Hall v. Harvey Coal & Coke Co., 108 S. E., 491; Continental Coal Co. v. Connellsville By-Products Coal Co., 138 S. E., 737; Georgia Iron Ore Co. v. Jones, 111 S. E., 372; Cole v. Signal Knob Coal Co., 122 S. E., 268; Goody Koontz v. White Star Mining Co., 119 S. E., 862; Griffin v. Fairmont Coal Co., 53 S. E., 24. The various opinions in the Griffin case, supra, present every phase of the question together with the authorities supporting the various conclusions and deductions relating to the subject. In the case at bar the final solution of the question involved must rest upon a construction of the deed in order to determine the intention of the parties to the conveyance. The deed held by the plaintiffs recites that “said land, as above described, being sold subject to said mineral rights and privileges,” etc. The original deed from Smith to the grantor of the plaintiffs not only reserved the absolute ownership of the mineral or feldspar beneath the surface of the land and the right of ingress, egress and regress, but also “the necessary mining privileges for the operation of said mineral rights.” A feldspar operation, as described in the evidence, is properly conducted by a method known as pit mining. It is not a process of tunneling beneath the surface for substantial distances, but apparently consists of digging horizontal holes in the *411 ground. Indeed, tbe evidence tends to show that upon tbe tract of land in question tbe feldspar was frequently found close to tbe surface. Hence tbe expression in tbe deed “operation of said mineral rights” must be construed in tbe light of accepted and prevailing methods of mining feldspar, and such operation does not involve tbe principle of subjacent support, provided, of course, that tbe mining operation is conducted in a careful and reasonable manner so as to prevent interference with tbe surface of tbe land except insofar as such interference may be necessary in tbe reasonable and careful prosecution of tbe mining operation. Indeed, tbe plaintiffs did not contemplate tbe application' of tbe principle of subjacent support. One of tbe plaintiffs was asked tbe following question: “Do you think it would be practical to go in there and put a roof over tbe spar when tbe feldspar comes within a foot or two of tbe surface?” Tbe witness answered: “No sir, I don’t. I didn’t do it when I mined and was interested in tbe property and tbe surface. I dug just tbe same as anybody else and what I wanted was to get tbe spar with tbe least expense.” Tbe practical construction placed upon a written instrument by tbe parties thereto before a controversy arises, is ordinarily given great weight by tbe courts in arriving at tbe true meaning and intent of tbe language employed in tbe contract. Wearn v. R. R., 191 N. C., 575, 132 S. E., 576. Furthermore, tbe deed of plaintiffs for tbe surface expressly provides that such surface is held “subject to said mineral rights and privileges.” There was evidence that tbe plaintiffs bad erected about 2,000 feet of wire upon tbe land and that said wire bad been destroyed during tbe time tbe defendant Smith was conducting mining operations thereon, but there is no evidence that said wire was destroyed by Smith or with bis knowledge, consent or procurement. Upon tbe whole case, tbe Court is of tbe opinion that tbe judgment of nonsuit was properly entered. Affirmed.