CATRON et al. v. SOUTH BUTTE MINING CO., 181 F. 941

GILBERT, Circuit Judge (after stating the facts as above). The assignments of error bring in question the correctness of the decree in giving the appellee the right of subjacent support for the surface of its land and 20 feet thereunder, and requiring the appellants so to conduct their mining operations as not to injure the same.

The appellants, the Largey heirs, owning two-thirds of the lode claim, and the Hopkins heirs, owning the other one-third, deeded by separate conveyances, at different dates, their interests in the surface ground to the grantors of the appellee, reserving in each deed the minerals and the right to extract the same, and covenanting not to mine or excavate nearer to the surface than 20 feet; the Hopkins heirs covenanting to conduct their mining operations so as not to injure the surface rights conveyed, and so as to protect the surface with a depth of 20 feet thereunder, and the Largey heirs covenanting to “leave twenty feet below the present surface of the ground for support,” but declaring that they did not obligate themselves to support or maintain the said 20 feet by timber or otherwise.

The appellants contend that by the insertion of this last clause in their deed they are absolved from any positive duty of protecting the surface. When the surface of land is owned by one, and the mineral beneath, with the right to extract the same, is owned by another, it is immaterial whether the two interests have been created by a conveyance of the surface with a reservation of the mineral, or by a grant of the mineral with a reservation of the surface. In either case the obligation to protect the surface is the same. Dand v. Kingscote, 7 M. & W. 174; Marvin v. Brewster Iron Min. Co., 55 N. Y. 538, 14 Am.

Rep. 322; Lord v. Carbon Iron Mfg. Co., 42 N. J. Eq. 157, 6 Atl. 812. And it is well settled that the grant of the surface, with a reservation of the minerals and the right to extract the same, does not permit the destruction of the surface, unless the right to do' so has been expressed in terms so plain as to admit of no doubt. Madden v. Lehigh Valley Coal Co., 212 Pa. 63, 61 Atl. 559; Williams v. Hay, 120 Pa. 485, 14 Atl. 379, 6 Am. St. Rep. 719; Coleman v. Chadwick, 80 Pa. 81, 21 Am. Rep. 93; Jones v. Wagner, 66 Pa. 429, 5 Am. Rep. 385; Burgner v. Humphrey, 41 Ohio, St. 340; Livingston v.

Moingona Coal Co., 49 Iowa, 369, 31 Am. Rep. 150; Collins v. Gleason Coal Co., 140 Iowa, 114, 115 N. W. 497, 18 L. R. A. (N. S.) 736; 2 Lindley on Mines, § 818; 27 Cyc. 687, 788. 8- In Williams v.

Hay it was held that a covenant to protect the surface will be implied in the ab'sénce ,of all words to that effect, and solely from the nature of the transaction.' In that case the deed provided that the grantor, in mining and removing mineral, "shall do as little damage to the surface as possible.” It was contended that by these words there was granted the power to destroy the surface; but the court said that an absolute right to surface support was not to be taken away by a mere implication from language which did not necessarily import such a result. So in Burgner v.

Humphrey the court held that a mining lease, in which it was stipulated that no mining operations should extend to or be so near the dwelling house or barn on the leased land as to injure the same, did not by implication give the lessee the right to injure the surface elsewhere; and in Livingston v.

Moingona Coal Co., where there was a reservation of minerals and the right to mine the same, “without thereby incurring in any event whatever any liability for injury caused or damage done to the surface of the land in working coal mines, minerals,” etc., the court held that the grantors were bound to support the surface, and that the intention to dispense with subjacent support had not been manifested by clear and. unequivocal language. In Davis v.

Treharne, 6 Law Reports, 460, Lord Watson said: “When a proprietor of the surface and the subjacent strata grants a lease to the whole or part of his minerals to a tenant, I think it is an implied term of that contract that support shall be given in the course of working to the surface of the land.

If it is not intended that that right should be reserved, the parties must make it very clear upon the face of the contract.” Upon a careful consideration of the language of the deed of the appellants, in the light of the authorities, we are not convinced that the trial court erred in holding that the grantors therein were not absolved from the obligation to support the surface. That obligation, as we have seen, was implied in the grant itself.

To qualify that obligation, the grantors stipulated that they did not bind themselves or their representatives or assigns to support or maintain the said 20 feet by timbers or otherwise, but only not to mine or excavate within 20 feet of the present surface. All that they can claim from these words of the deed is that they shall not be called upon to support by timbers or other artificial means the superincumbent 20 feet. They are not thereby absolved from their obligation, which is implied in the grant of the surface, so to conduct their mining operations that the surface shall at all times be sustained.

This is all that the decree requires them to do. The appellant contends that the decree is not supported by the bill, that the appellee seeks by its bill a decree quieting its title to the surface of the land in controversy, and that a complainant cannot, in a suit to quiet title to the surface only, obtain a decree enjoining defendants, who are admitted to own the minerals beneath the surface, from extracting the same in any way, especially in the absence of special allegations to justify such relief.

It is true that the bill, so far as the Otisco mining claim is concerned, seeks only to quiet the appellee’s title to a portion of the surface;, but the court, in rendering a final decree, could properly look to all the pleadings in the case, and the issues thereby created.' In the answer of the appellants to the amended and supplemental bill, they alleged their ownership to the minerals lying beneath that portion of the surface of the Otisco claim described in the bill, with the right to mine and extract all ores therefrom, “provided that, in the exercise of such right, the surface of said ground shall not be damaged or in any wise interfered with”; and in its answer to the cross-bill of the appellants the appellee alleged its right to the surface, and all country rock underlying the same, and all of the ground within 20 feet underlying the same, “undisturbed, damaged, or in any way interfered with by any mining operations which may be carried on,” etc., beneath the said 20 feet.

The trial court, therefore, did not go beyond the issues in the case in awarding the appellee the relief which is specified in the decree. The decree is affirmed.