Baltzley v. Wiseman

PARKER, Judge. The question presented is whether North State Gem Mining, Inc., as the present owner of the mineral rights conveyed by the 1899 severance deed, has the right to conduct on the land or to grant to another the right to conduct thereon a “rock-hound” business such as is contemplated by paragraph 5 of the lease from North State to Baltzley. We agree with the trial court that it does not. When mineral rights in land are by deed or reservation severed from the surface rights, two distinct estates are created, and the estate in the mineral interests, being part of the realty, is subject to the ordinary rules of law governing the title to real property. Vance v. Guy, 223 N.C. 409, 27 S.E. 2d 117 (1943). Each estate is a freehold estate of inheritance separate from, and independent of, the other. 54 Am. Jur. 2d, Mines and Minerals, § 116. Due to the unique nature of these independent estates in the same land, the owner of the surface and the owner of the minerals must each necessarily exercise the rights which go with his separate title with due regard for the rights of the other. “The surface owner may use and deal with his property in any legitimate manner not inconsistent with the rights acquired by the owner of the minerals. . . . Conversely, the owner of the minerals has a limited right to use the surface in reaching and removing the minerals.” 54 Am. Jur. 2d, Mines and Minerals, § 148, p. 330. In the present case the parties stipulated that whatever rights Passmore, the grantee in the 1899 severance deed, may have received pursuant to that deed were subsequently conveyed to North State. Those rights were the “Mineral Right” in the three-acre tract here in question together with the privilege of using timber growing on the tract “for mining Purposes only & for fire Wood Building houses for Mine and tools Store houses [683] etc.,” together with a right-of-way to the public highway. Clearly, the parties to the 1899 deed contemplated that the grantee or his assigns might conduct on the land a conventional mining operation, and there was evidence that such an operation was conducted on the land during the decade following execution of the deed. Necessarily the separate estate retained by the owner of the surface was subject to and burdened by such uses of the surface as were entailed in the conduct on the land of such a conventional mining operation. Now, however, North State, or more accurately its lessee, Baltzley, seeks to conduct on the land a totally different business, that of selling daily permits to “rockhounds” (i.e., any persons who for whatever reasons of their own, are interested in searching for and collecting mineral specimens of various types), to come upon the land to search for and take mineral specimens therefrom. The success of such a business depends on the number of such persons who can be induced to buy permits to come upon the land, and there was evidence that a substantial number of persons were attracted daily to come upon this three-acre tract in a rural area. Certainly such an activity relates to the “Mineral Right” in the land, and no person, whether a “rockhound” or another, could lawfully remove minerals from the land without permission from the owner of the mineral estate. But that ownership alone does not give to the owner of the minerals the right to subject the estate of the owner of the surface to the burden of a use radically different in nature and extent from anything contemplated by the parties when the ownership of the two estates was severed by the 1899 deed. “Rockhounding” is a wholesome activity which in recent years has grown rapidly in popularity and has attracted to its ranks an increasing number of persons. Certainly nothing in this opinion is intended to denigrate that activity or those who engage in it. We are here concerned only with the legal question of whether the present owner of the mineral estate granted by a particular 1899 severance deed has the legal right, without the concurrence of and over the objections of the owner of the surface, to grant to rockhounds the right to go upon the land. We agree with the trial court that it does not. The judgment dismissing plaintiffs’ action is Affirmed. Judges Martin and Morris concur.