r `- 70-19
January 12, 1970 'KEY WORDS:
MEMO .L -.........a.
Re: Mineral Rights ---
"Minerals" -include all inorganic matter containing metallc or
non-metallic substance. Under Florida Statute 69.20 peat and
clay are excluded from the category of minerals.
After aLmineral "veranap two fee simple estates exist, one
in the minerals and one in the surface. Each are taxable
separately. Florida Statute 19 gg.
The grant of a right to remove minerals carries with it by
Implication the opportunity to enter upon the land and remove
the minerals. In Gulf Refining Company vs. Davis, 224 Miss. 464,
80 So. 2d 467; Harper vs. Jones, 35 Ohio Op. 524, 74 N. E. 2d 397
thecoourts held that a grant of minerals gives an implied right
for entering, occupying and making such use of the surface as ,-
reasonably necessary to explore, mine, remove and market minerals.
The general rule is that it creates an implied easement. The
servitude of the surface is subject to the requirement that the
mineral estate be reasonably exercised with regard to the rights
of surface owners so as not to negligently injure the surface
estate. General Crude Oil Co. vs. Aiken, 344 S.W. ?d 668
( A conveyance of the mineral rights creates by implication the
right to use as much of the surface of the land as may be
necessary and beneficial for the proper operation of removal
of the minerals. General Refractories Co. vs. Iwetman 197 S.W.
2d 769. In Schuster vs. Pennsylvania TPK, Comm. 149 Al. 2d 447,
the Court held that the right to use the surface is a legal
incident to a mining lease and is not an oil license, hence it
is compensable: in condemnation of the surface.
Every express grant or reservation of minerals or mineral right
in a tract of land by necessary implication passes to the grantee
or reserves to the grantor certain rights incident thereto. The
most important of these rights are: to open the mines by sinking
Shafts or running tunnels; to use such means as are necessary in
getting out and removing the minerals; and generally to employ
all the necessary appliances requisite to the proper working of
the mines. Yates vs. Gulf Oil Corp., 182 Fed 2d 286. After
severance of ownership of the mineral rights from the surface,
the owner of the former cannot use or occupy the surface except
in a way that is reasonably necessary for mining and removing
the minerals. The Court stated in Young vs. Young 270 SW. 653:
With the ownership of the mineral rights goes the right to enter
and take possession, even as against the owner of the soil, and
to hold such possession and to use the surface, so far as is
necessary to carry on the mining operations without any express
authority therefore. A way of access to property granted or
reserved will be implied only when necessary to give effect to
the grant or reservation, but never merely as a matter of convenience.
Fiedline Vs. Hoffman 115 Atl. 845
The surface owner has the right to make reasonable i
surface though this may result incidently in damage
ise of the
A person owning minerals in land has as incidental .o his owner-
ship the rights and privileges necessary for the profitable
production of such minerals including use of salt water on land
as is reasonably necessary. Holt vs. SW Antioch Said Unit,
292 Pac. 2d 998.
Where a grantor in a deed reserving minerals did no-
reserve the right to mine and removement minerals,
imply a grant of the right to enter for such purpose,
Gulf Oil Corp. 182 Fed. 2d 286
The owner or grantee of minerals, who does not own
has no right to use the surface or the materials of
the purpose of changing the character of the minera
he is entitled, such as for converting coal into co
into bricks. Williams vs. Gibson, 4 So. 350
;he law will
. Yates vs.
the land for
Ls to which
te or clay
The surface owner has the right to enjoy and use the lands free
from annoyance, except as reasonably arises from the opening,
exploration, mining and marketing of the minerals granted.
Imperial Elkhorn Coal, Co. vs. Webb 225 S.W. 1077 He may build
a house on a location which does not interfere with the mining
Where the ownership of the surface has been severed from the
ownership of the minerals under it, the owner of the surface
has an absolute right to necessary support for his land. lf the
owner'-of the minerals removes them entirely, so that injury results
from a subsidance of the soil, he will be liable fo: the damage
resulting, however, carefully or skillfully he may ave conducted
his mining operations. In otherwords the owner of the minerals
is entitleed~gnly to so much of them as he can get w thout injury
to the sunerT nciumbhnt soil. He must either leave illars or
ribs of the mineral itself, or put in artificial su norts- sufficient
to sustain the soil. Williams vs. Gibson, 4''6. 353 Ts )
The mineral operator is under a duty not to negligently injure
the surface of the land or the underlying water strap. General
Crude Oil, Co. vs. Aiken 335 S.W. 229
1 0 1
C.J.S Mines and Minerals
The general rights of an owner of minerals in lands are not
limited by a power or privilege particularly mentioned in the
grant or reservation, but include such rights and privileges
as are necessarily implied from those expressly granted and
unless provided otherwise, the general rule is that a grant of
mines or minerals gives to the owner of the minerals the
incidental right of entering, occupying, and making such use
of the surface lands as is reasonably necessary in exploring,
mining, removing and marketing the minerals; and such right
does not require or depend upon any covenant for compensation.
Marvin vs. Brewster Iron Mining Co. 55 N.Y. 538. The
reason for this rule is because a grant or reservation of
minerals would be wholly worthless if the grantee or reserve
could not enter upon the land in order to explore for and
extract the minerals granted or reserved. Harris vs. Currie
176 S.W. 2d 302, 305. This incidental right of entering,
occupying and making such use of the surface as is reasonably
necessary exists in the case of a reservation as well as a
The mineral owners rights are subject to the limitation that
he does not use the surface in such a way as unnecessarily
destroys or injures it, although the right to remove minerals ,
by the usual or customary method of mining exists even-though //
surface ground may be wholly destroyed as a result thereof.
MacDonabll vs. Capital Co. 130 F. 2d 311
The mineral owner has no right to use appliances and facilities
belonging to the surface owner even though such will cause the
latter no inconvenience. Imperial Elk Horn Co. vs. Webb
225 S.W. 1077 Generally a mine owner cannot justify the usd
of the surface for the lengthend keeping of his mineral products,
the long continued deposit of rubish from the mine, the erection
of buildings for the storage of materials or the housing of
animals, unless asch right is expressly granted, nor can ihe
pdlute a water course on the land. Nebo Cons. Coal and Coking Co.
vs. Lynch 133 S.W. 763
In the absence of an authorization contained in the grant or
reservation, the mineral owner may not destroy thesurface of the
land by strip mining. West Virginia Pittsburgh Coal Co. vs.
Strong 42 S.W. 2d 46
The owner of a mine or mining claim is not liable for damages
resulting where livestock running at large fall into a pit or
mining shaft, but he may be liable Where animals grazing on the
surface fall into an opening caused by subsidence due to the
excavation of the underlying strata. Cole vs. Signal Knob Coal,Co.
122 S.E. 268
Florida Statute 768.10-.11 provide that it is unlawful for a
person to leave open any pit or other hole that is outside of
an inclosure and of a greater depth and breath than 2 feet.
violation of this law can be escaped by enclosing such a pit
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with a fence or other enclosure that will prevent domestic
animals falling into it.
As a general rule, persons engaged in ordinary mining operations
are not responsible for damages caused by diverting of destroying
the flow of percolating waters. West Kentucky Coal Co. vs. Dilback
294 S.W. 478
If waters are drained without reasonable need or are willfully
or negligently wasted, w actionable claim may arise therefrom.
Sloss Sheffield Steel and Iron Co. vs. Wiles 181 So. 276
The holder of the mineral rights has the dominant estate and
is permitted to occupy such space and do such damage as is
reasonably necessary to conduct the mining operation.
If damage is caused to the owner of the surface and if such
damage is considered reasonably necessary for the production
of the oil, the owner of the surface cannot recover for such
damage. Gulf Refining vs Davis, 80 So 2d 467 (1955)in re \\nS-
Salt Water Disposal)Pits). The Court assumes that as many
pits can be constructed as are needed and does not raise the
issue whether some other method of disposal that would not
involve as much use of the surface might be feasible. Likewise,
if oil or salt water escapes over the surface of the land
or polutes a stream, it is generally held that negligence must
be shown in order to establish liability. Phoenix vs Graham
110 N. E. 2nd 669 (1953).
The question of whether the use which is being made of the surface
is reasonable is one of fact for the jury. This is so only
if there could be a reasonable difference of opinion about the
particular conduct in issue. In Robinson Drilling Company vs
Moses, 256 S. W. 2d 650, the Court permitted the lessee to go
in and drill just before a cotton crop matured.
Where substances escape,,the prevailing view is that the
operator of the mine is not liable for the damages caused
thereby without proof of negligence. Phoenix vs Graham
110 N. E. 2nd 669.
ehsteStatute 828.11 imposes liability for failure to
fence the washings or other refuse of a phosphate plant;
to the extent of the value of the live stock that may be
killed or injured in consequence of such failure.
The leaving open of a pit or hole of a depth and breadth greater
than 2 feet is prohibited by Florida Statute 768.10 and is
punishable by the infliction of damages in an amount double
the actual damages sustained. Fla. Jur. Mines and Minerals
It is only where a showing is made of negligence or the
actions of the mineral holder werecnot reasonably necessary
that damages can be recovered.
The general rule is that the surface owner is entitled to
subjacent support of his land. Therefore, mining that would
involve the destruction of the surface, for example strip
mining, would be prohibited in the absence of an authorization
to the contrary.