THE LAW OF MINES AND MINING (PART 2) RIGHTS AND LIABILITIES OF MINE SURFACE RIGHTS 1. The term mine owner is particularly applicable to the owner of the mineral estate-not to the owner of the soil. Ordinarily, the question of the rights and the liabilities. of mine owners can only arise when the owner of the mine is not the owner as well of the soil in or under which the mine is situated. When a person is given the right to a mineral estate, by purchase, lease, or otherwise, such estate thereby constituting a distinct possession from that of the soil, the right to use the surface in a certain specified manner is also given to such person; yet, often such right is not expressed in the grant of the mine. It is evident, however, the mine owner must have some rights in the surface, or he could not enjoy the rights of his mine. The general rule of law is that a grant of minerals, or a grant of a mine, carries with it the right to dig the mine and remove the mineral. It follows that the owner of the mine is entitled to such surface rights as are reasonably necessary for working and getting the mineral from the mine. These include the right to penetrate through the soil by pits or shafts, or by wells, in order to reach the mineral; also, the right to affix on the soil such machinery as is necessary For notice of copyright, see page immediately following the title page to work the mine and such structures as are needed for that purpose, the right to erect hoisting machinery at a convenient place and air-shafts for the ventilation of his mine, and the right to the surface for the purpose of drainage. He may keep pace with the progress of invention and ingenuity, so far as is necessary for a profitable working of his mine in competition with rivals. Hence, he may adopt new and improved methods that are usually employed in the same business when the use of them is necessary to him. In other words, he may have only what is necessary for the operation of his mines, but he may have it in a convenient way.' Rights to use the surface being confined to the working of the mine and the removal of the mineral, in no case has the mine owner the right to use it for any other purpose. Thus, he cannot use the surface to manufacture the mineral produced from the mine; he cannot smelt the ore he has gotten from the mine or construct coke ovens for converting the coal of the mine into coke. The owner of a lead mine cannot use the surface of the soil to prepare the ore into lead. If this were allowed, the land of the lessor or grantor might with equal propriety be entirely taken up for manufacturing articles from the product of the mine on the premises. But it seems that the right to quarry stone carries with it, as a necessary incident, the right of hewing the stone and preparing it for use.❜ 2. The lessee or owner of the mine cannot use the surface to develop the minerals of an adjoining tract. Where, however, the contract provides that the lessee of a coal mine may use the surface for the mining of the coal from the adjoining land, the lessee has the absolute right to do so provided he fulfils the covenants of his lease. The law gives this right to the surface of the soil to the owner of the mine where nothing to the contrary appears either in the grant or the reservation of any other instrument by which the right to 184 Ala. 228 (1887); (1895) 1 Q. B. (Eng.) 459, 466; 93 Mo. 107 (1887); 55 N. Y. 538 (1874). 28 Cush. (Mass.) 21 (1851). 3 97 Cal. 97 (1892). mine is given to such owner. But, where it is expressly provided in the instrument of grant that the owner of the mine shall not exercise any or all of these surface rights, he is, of course, bound by such provision. Thus, where the grantor of land reserved for himself the mining rights, and expressly provided in that grant that he would not intentionally open any mine from the surface, or dig any air-shaft, or establish any mining fixtures on the surface of the land, he is bound by the provisions, and neither he nor his successors in title can erect such mining fixtures on the land." The right to the surface is often expressly granted to the grantee of the mining estate. Where this is the case, the owner of the mine need not exercise it if he do not desire to do so. He can work the mine by instroke or from an adjoining mine, although he has the express right under the grant of the mine to sink shafts and to use the surface for working his mine; and, where the lessee has the privilege to deposit the refuse from the leased mine upon the surface of the leased land, he is not obliged to do so, but can deposit it on the adjoining land." Where a lease to work coal grants to the lessee the liberty of erecting such buildings as are necessary and proper for the purpose of working the coal, the extent of the right is that which is usual among mine workers. Whatever cannot be dispensed with, if the mine. is to be worked with reasonable efficiency and success, is included under the terms necessary and proper. It does not mean that which is absolutely necessary and without which the work of the mine could not be carried on, but that which, according to the usage of miners working with ordinary skill, is necessary for carrying on the work. For instance, the construction of cottages for the workmen is often necessary for carrying on the work. If the mines be far removed from any habitable dwellings, it would be impossible for the miners to walk a distance in the evening, exhausted from their day's labor, and, therefore, it would be necessary to provide nearer habitation for them.' 4 122 N. Y. 509 (1890). 5 187 Pa. 500 (1898). 6163 Pa. 84 (1894). 73 H. & N. (Eng.) 437 (1858). RIGHTS OF WAY 3. What we have said as to surface rights is equally applicable to rights of way. Where the mining rights are granted or reserved and no provision is made as to the right of way to convey the minerals gotten from the mine, the law will imply that the grantee of the mining rights has the right of way to get to the mine and to haul the minerals to the market or elsewhere for the purpose of disposing of them. The right of way of the mine owner, under these circumstances, is called a way of necessity. It will be limited strictly to that which is necessary for him to exercise his rights in the mineral estate. Therefore, the question is not what is most profitable or convenient, but what is necessary. It may happen that the minerals can be more conveniently or profitably removed and put upon the market by an underground, rather than an overland, way; yet, that fact does not determine that the grantee of the mines is to have an underground way. The necessity, if it exist, is of an overland road, and to that alone the grantee is entitled. This doctrine of the right of way by necessity has no application to the case of a grant of mineral rights by the state on unsettled land." Usually there is granted in express terms a right of way together with the grant of the mineral rights. The right of way in such a case is more extended than the right of way of necessity. The true question in such a case is not whether the road have been made in the manner and in the direction which rigid necessity would point out, but whether it be one of convenience. Thus, where there is a right of way granted to construct a road to convey the products of the mine, the owner is not bound to choose the shortest possible course, if in the exercise of his judgment he, in good faith, find it expedient to adopt a more circuitous road." For the purpose of getting the coal, the owner is not confined to the manner of conveyance used at the time the grant was made; 101 John. (Eng.) 255 (1859). 8 90 Tenn. 619, 627, 629 (1891). |