Occasionally, we venture beyond the comfortable red-state confines of Texas to visit swing states and discuss mineral activity other than oil and gas drilling; and we go back in time. This is one of those journeys, as we go to Ohio, where the court relied on a decision from the time when Chester A. Arthur was president.
In Snyder v. Ohio Department of Natural Resources, mineral reservation language in a deed to 651 acres included “reasonable surface right privileges”. Sixty years later, the court ruled that those privileges did not include the right to strip mine.
The mineral owners wanted to strip mine ten percent of the land, arguing that such a small amount was a reasonable portion of the property to use. The state refused, no doubt because surface estate was now part of the Brush Creek Wildlife Area in Jefferson County.
The court considered whether the deed language was ambiguous. The court concluded that the right to strip mine must be clearly expressed in the reservation of mineral rights. In this case, it was not.
In Ohio, absent an agreement to the contrary the mineral estate owner has the right to use as much of the surface as is reasonably necessary to reach and remove the minerals. This is the law in all producing states I am aware of. But that right does not include the right to destroy the surface altogether.
The court referred to an 1884 case to show that Ohio courts have long held that the holder of mineral rights cannot destroy the surface unless a waiver of the right to an intact surface is expressed in the deed. Deed language granting “reasonable surface right privileges” neither authorizes strip mining nor releases the right to surface support. According to the court, strip mining is not a reasonable use of the surface estate, even if it is the only way to obtain the minerals.
One suspects that the mineral owner knew the state of the law when he proposed to mine only ten percent of the land. But his proposal could not overcome the limitations of his contract – strip mining was not expressly reserved in the deed. The total disruption of ten percent of the surface could not be considered “reasonable use” of the surface estate. The court found that the same test would apply to auger mining because strip mining is statutorily defined to include auger mining. (No, I don’t know what auger mining is. I guess it is a lot like strip mining).
The musical interlude returns:
Special thanks to Lydia Webb for her contibution to this entry.