IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

June 18, 2008 Session

The State of Tennessee (“the state”) sued Lahiere-Hill, L.L.C. (“the company”), seeking a

declaratory judgment defining the scope of the company’s rights with respect to the minerals on

several tracts of land in Hamilton County. The state, which owns the surface rights to the land in

question, also stated causes of action for trespass, ejectment and public nuisance. The severance

of the mineral rights from the surface rights occurred in 1951, when the parties’ common grantor

reserved the mineral rights for itself while conveying the surface rights to a grantee who wished

to use the land for its timber. The state eventually acquired the surface rights previously owned

by timber companies, and has designated most of the land as part of the Cumberland Trail State

Park. The parties’ dispute focuses on how to interpret the 1951 deed, specifically whether the

grantor’s reservation of “other minerals” includes the right to mine sandstone. The state

contends that sandstone is not a mineral, and that, in any event, the company’s “surface mining”

is too destructive to the surface and should not be allowed absent an explicit provision in the

deed permitting such mining. The company argues that sandstone is a mineral, and that the

mining techniques at issue are not so destructive as to deprive the state of its surface rights. The

trial court granted the company’s motion for summary judgment, holding that the term

“minerals” unambiguously includes sandstone; determining that there are no disputed issues of

material fact in this case; and concluding that the material facts before the court support

summary judgment for the company. We disagree with the trial court’s determination that there

are no genuine issues of material fact. We hold that, absent an explicit provision so stating, the

1951 deed cannot be read as waiving the surface owner’s right to use the property for its

reasonable or intended purpose. We further hold that the company has not demonstrated the

absence of a disputed issue of material fact on the question of whether its mining techniques are

impermissibly destructive. Accordingly, we vacate the trial court’s grant of summary judgment

and remand for further proceedings.

C

P.J., and D. M

Elizabeth P. McCarter, Senior Counsel, Office of the Attorney General, Environmental Division;

Wilson S. Buntin, Assistant Attorney General, Office of the Attorney General, Environmental

Division; Michael E. Moore, Solicitor General; and Robert E. Cooper, Jr., Attorney General and

Reporter, Nashville, Tennessee, for the appellants, State of Tennessee ex rel. Robert E. Cooper,

Jr., in his official capacity as the Attorney General and Reporter of Tennessee, and James H.

Fyke, Commissioner of the Tennessee Department of Environment and Conservation.

Frederick L. Hitchcock and Michael J. Stewart, Chattanooga, Tennessee, for the appellee,

Lahiere-Hill, L.L.C.

Sarah A. Francisco, Charlottesville, Virginia, and Gregory Buppert, Nashville, Tennessee, for the

amici curiae, the Cumberland Trail Conference, the Tennessee Citizens for Wilderness Planning,

Save Our Cumberland Mountains, the Sierra Club, the Tennessee Clean Water Network, the

Nature Conservancy, the Obed Community Watershed Association, the American Hiking

Society, the Tennessee Parks and Greenways Foundation, the Tennessee Forests Council, the

Land Trust for Tennessee, the National Parks Conservation Association, Cherokee Forest

Voices, and the Tennessee River Gorge Trust.

I.

In August 1951, the parties’ common grantor, Durham Land Company, conveyed title to

the surface rights in the subject property to Efim Golodetz.

the subject property, known as the “Deep Creek Tract,” the deed lists four “exceptions” and then

states:

Durham Land Company hereby also expressly saves and excepts

out of the property hereinabove described and from the grant

thereby made, and reserves to itself, its successors and assigns, all

mines, coal, iron, oil, gas and

free power to take all usual, necessary and convenient means for

searching for, mining, working, getting, preparing, carrying away,

and disposing of said mines and minerals; and excepting all

existing public roads and the easements of public utility companies

across said above described property; and excepting and reserving

to Durham Land Company, its successors and assigns, full and free

rights and liberty at all times hereafter in and to rights of way over

and across said above described property for ingress and egress for

1 A total of eight tracts were conveyed in the deed, three of the tracts – including the subject property,

described in the deed as the “Durham Land Company–Deep Creek Tract” – from Durham Land Company to Mr.

Golodetz, and the other five from C. W. and Claudia Hoffman to Mr. Golodetz. The eight tracts were sold for a

combined $300,000, “payable to the order of Durham Land Company and C. W. Hoffman.” (Capitalization in

original omitted.)

all purposes connected with the use, occupation, and enjoyment of

the property and rights hereinabove saved, excepted and reserved.

(Emphasis added.)

Having reserved the Deep Creek mineral estate for itself, Durham Land Company

subsequently conveyed that estate to Joseph and Josephine Lahiere in 1963.

portions of the 1963 deed

rights under the surface” of the conveyed properties, as well as “[a]ll of the mineral, mining

rights, powers, privileges, easements, rights-of-way, and all other rights of whatsoever extent,

kind, and character as reserved and kept by Durham Land Company” in the 1951 deed .

Subsequently, in 1973, Elmer Hill obtained a partial interest in the Lahieres’ mineral estate, thus

resulting in the estate’s joint ownership by what eventually became the Lahiere-Hill partnership,

and later, Lahiere-Hill, L.L.C., the defendant and appellee herein.

Meanwhile, Efim Golodetz, the 1951 surface-estate grantee, conveyed

subject property to Namarib Timber Company in 1973, which in turn conveyed the same estate

to the Hiwassee Land Company in 1974, another timber company. Hiwassee later merged into

Bowater Inc., which subsequently conveyed its interest in the subject property to the state.

2004, the state owned the surface estate covering all of the Deep Creek Tract property at issue

herein. Much of that property is now part of the Cumberland Trail State Park, which the state

describes as “Tennessee’s only linear park.” There is no dispute regarding the chain of title, and

the parties agree that the 1951 deed accurately describes the parties’ interests in the property in

question.

2 The trial court stated in its memorandum opinion and order that the subject property was included in an

earlier Durham-to-Lahiere conveyance, in 1962. This appears to be incorrect, however. The 1962 deed included

some of the tracts covered by the 1951 deed, but our review of the record indicates that the Deep Creek Tract was

not conveyed until 1963. In any case, it makes no material difference to the outcome of the case, as the wording of

the 1962 and 1963 deeds is essentially identical, and there is no dispute that the parties’ interests are described

accurately by the 1951 deed.

3 The 1963 deed conveyed not just the subject Deep Creek Tract, but also various other mineral and surface

estates owned by either the Durham Land Company or the Mary Glen Land Company. The Deep Creek Tract is

included within the portion of the deed described as “Mineral Tract No. 1,” which itself comprised “the mineral and

mining rights of various tracts being consolidated into an overall contiguous tract.” The Deep Creek Tract is also

mentioned under “Miscellaneous Item No. 1,” which essentially reiterates and clarifies the rights conveyed in earlier

portions of the deed. (Capitalization in original omitted.)

4 This is a slight simplification of a more complex series of transactions. In 2001, Bowater conveyed

various properties to the state, and conveyed various other properties to The Conservation Fund. Then, in 2004, the

Conservation Fund conveyed various properties to the state. It is not clear from the trial court’s opinion, the parties’

briefs, or our review of the record, precisely when and how the Deep Creek Tract – which is not identified as such in

the deeds to the state – changed hands. Again, however, this detail is immaterial, as there is no dispute over the

chain of title.

5 The state argues that the 1963 grant, although it “included the very same mineral interest that was reserved

by Durham in 1951,” is significant because it uses the phrase “under the surface” rather than the original phrase

found in the 1951 deed, “in and under [the] property.” We do not regard this difference in wording as significant.

Both deeds clearly refer to

Both parties and the trial court focus their attention on the interpretation of the language

in the 1951 deed that describes the reserved mineral rights as covering “all mines, coal, iron, oil,

gas and

property.” (Emphasis added.) The company argues that sandstone, which it mines to make

dimension stone,

state also argues that, even if the company has the right under the deed to mine for sandstone on

the subject property, it is creating a public nuisance by doing so. Because the issues implicated

by the nuisance claim are in some senses different from the issues implicated by the other claims,

we will discuss that claim separately at the end of this opinion. In any event, the company was

granted summary judgment on all claims. The state timely appealed.

II.

A.

Summary judgment may properly be granted only where the moving party demonstrates

that, viewing the evidence in the light most favorable to the nonmoving party and making all

reasonable inferences in the nonmoving party’s favor, no genuine issue of material fact exists.

entitled to a presumption of correctness on appeal.

S.W.3d 528, 534 (Tenn. 2002). Instead, we must determine for ourselves whether the moving

party has satisfied the requirements of Tenn. R. Civ. P. 56.

50-51 (Tenn. 1997);

This determination is based upon “the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any.” Tenn. R. Civ. P. 56.04. The grant of

summary judgment may be upheld only if “the moving party is entitled to a judgment as a matter

of law on the undisputed facts.”

The moving party, in this case the company, has the initial burden, and “must either

affirmatively negate an essential element of the non-movant’s claim or conclusively establish an

affirmative defense.”

In the instant case, the company seeks to affirmatively negate the state’s claim that its surface

estate includes the right to prevent the company from mining sandstone on the subject property.

Only if the company has succeeded in negating that claim is the state required to produce

evidence to support its position, whether by rehabilitating its evidence, pointing to new or

overlooked evidence, or proving that further discovery is necessary.

the facts presented by the company in support of its motion for summary judgment are sufficient

to establish that the company’s mineral estate includes the right to mine sandstone by the

proposed method, the motion must fail, regardless of whether the state has presented any

contrary evidence.

6 As stated in the company’s brief, “[d]imension stone is stone selected or cut to specific sizes for use in

building or landscaping. The parties agree that the resource being removed is sandstone dimension stone.”

7 This is an essential element of all the state’s causes of action except its public nuisance claim, which, as

noted earlier, we will discuss separately at the end of this opinion.

B.

Courts have struggled over the years to find a sensible approach to interpreting deeds that

reserve a broadly defined set of “mineral” rights. The United States Supreme Court in 1903

noted that “[t]he word ‘mineral’ is used in so many senses, dependent upon the context, that the

ordinary definitions of the dictionary throw but little light upon its signification in a given case.”

Supreme Court – in a decision upon which the state relies heavily – discussed a variety of factors

that might be relevant in determining whether the parties to a deed regarded limestone as a

mineral when they agreed to a reservation of “all the mines or minerals contained or imbedded in

or on said tract.”

The Court noted that limestone “had no commercial value” at the time of the subject deed, a fact

which the Court regarded as militating against the substance’s classification as a mineral.

Indeed, the Court mused that “[u]nder modern conditions . . . [a] case might arise where”

limestone, having become commercially valuable, would be considered a mineral.

However, the Court

factor that would

wrote:

If this reservation be construed to include limestone, it destroys the

conveyance, for by quarrying the limestone the entire surface

would be made way with. This being wholly a limestone

proposition, it is most reasonable to suppose that Mr. King would

have reserved same by express terms, had such been his intention.

concluded that they are in conflict with one another:

The word ‘mineral’ standing by itself might, under a broad,

general, popular definition, embrace the soil and all that is to be

found beneath its surface. Under a strict definition it might be

limited to metallic substances, and under a definition coupling it

with mines it covers all substances taken out of the bowels of the

earth by the process of mining.

without stating its precise rationale, that “[u]nder the facts of the present cause, we are clearly of

the opinion” that limestone was

deed at issue in that case.

upon its peculiar facts” – including “the language of the grant or reservation, the surrounding

circumstances and the intention of the grantor, if it can be ascertained” – rather than a formulaic

or technical definition of the terms involved.

Both parties in this case, however, leaned heavily in their summary judgment evidence on

what might be called technical definitions. In its Statement of Material Facts accompanying its

Motion for Summary Judgment, the company supported its assertion that “sandstone . . . is a

mineral” with the testimony of Linda Main, a geologist, who stated in part that “the definition of

a mineral is a naturally-occurring substance that’s inorganic, but the characteristics of it are like

they are a chemical compound” – a definition, she says, that includes sandstone. The state

responded with an affidavit from its own geologist, Peter J. Lemiszki, asserting that sandstone is

sedimentary rock that consists of individual grains of sediment held together by cement,” the

“size and composition” of which may vary. This, according to Dr. Lemiszki, is in stark contrast

to minerals, which are “homogeneous in nature and are distinct from mixed heterogeneous

assemblages, such as rock.”

The company also offered as evidence a report prepared by the state’s Division of

Geology titled “The Mineral Industry of Tennessee,” apparently published in 1998. This report,

in the company’s words, “lists dimension stone and quartzite sandstone as minerals located in

Tennessee and processed commercially.” Asked about its contents, the company’s expert, Dr.

Main, said the report “kind of affirms that [sandstone] is considered a mineral, because it’s a

commodity where [sic] they produce for money.”

The latter definition of mineral – a subsurface commodity with financial value – appears

to have been the one adopted by the trial court, which stated in its memorandum opinion and

order:

From the deed’s particular language, the types of parties involved,

and the commercial context of the transaction, it seems “mineral

rights” were probably understood, in a generic sense, to include

rights in

(Emphasis and footnote added.) In announcing this definition, however, the court did not

explicitly rely upon Dr. Main’s testimony, nor upon the Division of Geology report. Instead, the

court stated that it was deciding “a question of law . . . rather than a factual question,” and

declared that sandstone is

provision because “the popular understanding of ‘mineral’ includes sandstone.” In support of

this conclusion, the court cited a dictionary definition of “mineral” from 2007, and also

referenced earlier deposition testimony by Dr. Lemiszki in which the geologist had

acknowledged that, notwithstanding his own contrary scientific opinion, some textbooks and

state and federal geology documents refer to sandstone as a mineral. “It would be fair to say,”

the court wrote, “that a [layperson] would believe sandstone to be a mineral if they relied upon

the USGS Mineral Industry Summary to determine where commercially viable mineral[s]

exist[].”

8 The court’s opinion, as typed, uses the phrase “from or under.” This, of course, does not make

grammatical sense, and is presumably a typographical error. We assume the court intended to mirror the “in and

under” language of the deed by using the phrase “from in or under.”

The trial court also cited the Tennessee Mineral Surface Mining Law of 1972, Tenn.

Code Ann. § 59-8-202(7)(b), as advancing a broad definition of “mineral” that would include

sandstone. In addition, the court cited Attorney General Opinions from 1997 and 2004, which

interpreted statutes written in 1982 and 1984, respectively, as endorsing a similarly broad

definition of the word mineral. Tenn. Op. Atty. Gen. No. 97-068, 1997 WL 289935 (May 12,

1997); Tenn. Op. Atty. Gen. No. 04-152,

Private Acts of 1982; Tenn. Code Ann. § 67-7-202(a). As for the geologists, the court dismissed

Dr. Lemiszki’s affidavit as advancing a “super-technical, scientific definition” that is “not . . .

helpful in understanding what the intentions of the parties to the 1951 deed were.” The court did

not address whether the portions of Dr. Main’s competing testimony regarding the scientific

definition of “mineral” are likewise overly “super-technical [and] scientific.” Indeed, Dr. Main’s

testimony regarding the definition of “mineral” is not mentioned at all in the court’s opinion,

though the court had previously relied upon it in an earlier opinion denying the state a temporary

injunction, in part on the ground that “it appears that the State has not proved that the [sand]stone

is not a mineral.”

We agree with the court that a broad reservation of “other minerals” should not be

artificially constrained to include only those particular materials that the grantor and grantee had

specifically in mind when they wrote the deed. The phrase in question is, after all, worded as a

“catch-all,” intended on its face to include any and all minerals that the original parties to the

deed did

The “catch-all” is not unlimited; it applies only to

somehow. Given the lack of direct evidence of the original parties’ intent, we think the court

was right to focus on whether “the popular understanding of ‘mineral’ includes sandstone” – or,

more precisely, on whether the popular understanding of “mineral”

or substances similar to sandstone – rather than basing its judgment on “super-scientific”

definitions. The question, after all, is what “mineral” means in the particular context of the deed

in question –

stated in

678. So unless there is some reason to believe that the grantor and grantee relied upon a “supertechnical,

scientific definition,” such a definition is not dispositive or even terribly relevant, and

the “popular” definition is much more important, as it represents the “plain and ordinary

meaning” of the words in question.

By the same token, we are not entirely certain of the relevance of statutes and Attorney

General opinions from the 1970s and later, nor that of various modern textbooks, state and

federal documents, and so forth. It could perhaps be argued that these sources can shed light in a

very general sense on what the popular definition of “mineral”

that are more closely contemporaneous to the 1951 deed would certainly be more helpful.

Furthermore, we have grave doubts regarding the court’s conclusion that the definition of

“mineral” in this context is

9 This opinion was erroneously cited by the trial court as No. 04-142.

10 This conclusion follows naturally from the wording of the reservation: “coal, iron, oil, gas and other

minerals.” The parties to the deed listed four particular minerals – coal, iron, oil and gas – that they specifically

intended to include in the reservation. Then they added the phrase “other minerals,” to include any and all minerals

that they had

This is particularly so given that the court cited factual evidence in support of its conclusion.

That said, ultimately we need not reach these issues, as will be seen.

C.

Regardless of how one defines “mineral,” the court clearly erred in concluding that there

is no disputed issue of material fact as to whether the particular method of sandstone extraction

at issue herein falls within the ambit of the deed’s mineral reservation. The case law, while

somewhat muddled on the question of how to define “mineral,” is clear on this different but

related point: general mineral reservations in a deed will not be construed so broadly as to

include extraction methods that destroy the surface rights conveyed in the same deed. If a

grantor wishes to retain the right to obtain minerals through destructive surface extraction, he

must explicitly reserve that right within the deed; a general mineral reservation will not suffice.

This rule is announced not only by

earlier, states that limestone quarrying

proposition” would “destroy[] the conveyance” – but also by several later cases related to the

practice of “strip mining” for coal.

(deciding, as a threshold question to a constitutional challenge, that “neither the plaintiffs nor

their predecessor in title was ever conveyed the legal right to strip mine,” despite a broadly

worded mineral reservation);

1946) (excluding strip mining from general mineral reservation because “the owner of the

surface is entitled to subjacent support . . . unless the right to such support has been waived or

relinquished by the surface owner,” and “such a . . . waiver should not be implied unless the

language of the instrument of conveyance is appropriate therefor and clearly indicates such to be

the intention of the parties”). These cases, as well as basic common sense and equity, compel the

conclusion that,

will not be interpreted as implicitly granting the company the right to destroy the state’s surface

rights.

The above-cited cases are not distinguishable from the instant case on the basis of

divergent deed language. Of course the language of the deeds in the various cases is not

identical, but we do not find the differences to be significant. For instance, we disagree with the

trial court’s assertion that the mineral reservation in

reservation in the instant case because the

minerals,” 265 S.W. at 674, whereas the deed in the case now before us includes “all mines . . .

and other minerals of whatsoever kind and character.” We think the word “all,” standing alone,

necessarily denotes “of whatsoever kind and character”; the latter is basically surplusage in this

context, and certainly does not make the

herein. The deed in

grantor’s rights to “mineral[s] of all kinds . . . with sufficient privilege to operate and market the

11 We recognize that the instant case involves mining rather than quarrying. However, we believe that

any mineral extraction method that would “destroy[] the conveyance,” regardless of whether that method is labeled

as “mining” or “quarrying.” Of course, whether the extraction at issue in the instant case is such a method is a

separate question, one that we will address in more detail shortly.

same.” Again, we see no substantive difference between that deed and the one at issue in this

case. Nor does deed language distinguish

terms, including reservations of “all oil, gas, coal and any other minerals or mineral substances,”

and of “all oil, gas, saline and mineral substances of any nature whatsoever.” 610 S.W.2d at 716.

The

land], explore for, mine or otherwise procure any such minerals by any proper or necessary

means with all necessary rights and ways to remove such products therefrom,” or “right of

ingress and egress into, over, and under the said land for the purpose of exploring for, producing

and removing any of such substances.”

equivalent language in the deed herein – which grants “full and free power to take all usual,

necessary and convenient means for searching for, mining, working, getting, preparing, carrying

away, and disposing of said mines and minerals” and also “full and free rights and liberty at all

times hereafter in and to rights of way over and across said above described property for ingress

and egress” – that we think it is clear these deeds are reserving essentially the same rights. Thus,

the prohibition on implied surface-rights waivers found in

In view of these precedents, the trial court’s explication of the company’s extraction

rights is clearly too broad. The court’s memorandum opinion states, in pertinent part, as follows:

In this case, the method by which Lahiere-Hill, via Mr. Daggett,

removes the sandstone does not exceed the scope of the 1951

reservation. The reservation language regarding removal broadly

allows the mineral rights holder “full and free power to take all

usual, necessary and convenient means for searching for, mining,

working, getting, preparing, carrying away, and disposing of said

mines and minerals.” The plain reading of the reservation (“all

usual, necessary and

1951 deed intended to allow the mineral rights holder almost

limitless freedom to remove resources from the Property. The

sandstone is removed from shallow depths beneath the surface of

the land by a bulldozer, but it is mined by shaft. The State does

not dispute that this is the method used to extract the sandstone on

the Property. Surface mining is the easiest way to remove

sandstone. The 1951 reservation allows removal methods that are

convenient. Thus, the removal method currently used is one that is

consistent with the intention of the parties to the 1951 deed.

(Emphasis in original; citations omitted.) The trial court, having found sandstone to be a mineral

under the subject deed, concludes that the deed gives the company “almost limitless freedom” to

extract it (or any other mineral) by any method that is “convenient” for the company. Yet this

conclusion

formulation fails to allow for any consideration of how the state’s surface rights affect the scope

of the reservation. If, hypothetically speaking, “the easiest way to remove sandstone” were a

method that destroys the surface entirely – the sandstone equivalent of “strip mining” for coal –

the company would necessarily, according to the trial court’s logic, have the right to employ this

method, since it would be a “convenient means” of removing a “mineral,” and “[t]he 1951

reservation allows removal methods that are convenient.” Yet such a conclusion would clearly

be contrary to the holdings of the strip-mining cases just cited, unless one concludes that this

deed’s use of the word “convenient” – emphasized by the court – is tantamount to an explicit

waiver of surface rights by the grantee. We do not think this is a reasonable interpretation of that

term.

D.

The trial court’s analysis, then, is in error. But our inquiry does not end there. The

company argues strenuously that its method of sandstone extraction is

mining,” let alone to quarrying. We are told that the proposed “surface mining” method only

minimally disrupts the surface, and therefore is

state’s surface rights. If the company had established these facts for summary judgment

purposes, then the trial court’s analytical error in neglecting the surface-rights exception to

general mineral reservations would be a harmless mistake.

Before proceeding to determine whether the company has met this burden, it may be

helpful at this point to take a step back and briefly review the procedural posture of this case. In

moving for summary judgment, the company sought to prove that it has the right, by way of the

1951 deed, to engage in the proposed mineral extraction. If the company could prove this, it

would negate an essential element of the state’s claims for declaratory judgment, trespass and

ejectment. However, in accordance with the above-cited strip-mining precedents, the company

must do more than demonstrate that sandstone is a “mineral” and that the proposed extraction

method is “usual, necessary and convenient.” The company must

extraction method does not unduly interfere with the state’s surface rights. Otherwise, the

company has not negated any essential element of the state’s claims, because it has not proven

that the state lacks grounds, under the deed, to halt the company’s activity.

We emphasize that the inquiry into the extraction method’s intrinsic destructiveness is

analytically distinct from any potential inquiry into whether, in a particular instance, unexpected

or unforeseen damage may have occurred (though individual examples of damage may certainly

be pertinent to the broader inquiry). Moreover, the destructiveness inquiry is

distinct from the question of whether the company is employing the “usual, necessary and

convenient means for searching for, mining, working, getting, preparing, carrying away, and

disposing of said mines and minerals.”

begins only

By contrast, the inquiry into whether the extraction method inherently violates the state’s surface

rights is part and parcel of the

the extraction of the substance in question – in this case sandstone – is necessarily so destructive

of the mined surface area as to essentially “destroy[] the conveyance” of the surface rights to that

12 Consequently, the recitation in

principle that “the mineral estate carries with it the right to use so much of the surface as may be reasonably

necessary to reach and remove the minerals,” is inapposite. The matter at issue herein is the

estate.

area,

proposed extraction at all, regardless of whether the substance is a “mineral,” and regardless of

whether the extraction method is the “usual, necessary and convenient means” of removing said

mineral. Even if, on such facts, the company only intends to extract sandstone from a very small

percentage of the property (and thus destroy only a very small percentage of the surface area), it

still cannot do so because the deed, in such a scenario, does not convey any right to do so.

A crucial question, of course, is what it

rights –

surface rights. Certainly, some minor, repairable damage and general, temporary interference

with the surface owner’s rights must necessarily be allowed, as the “usual, necessary and

convenient means” and the “ingress and egress” clauses make clear. But, just as clearly, there

must be some upper limit to the extent of surface damage that can be tolerated without a specific

waiver of surface rights. We believe the proper standard is one of reasonableness, as seen

through the prism of the original parties’ intentions. The intent of the parties, after all, remains

the lodestar of deed interpretation, and is the reason for this whole surface-rights inquiry: we are

trying to obey the original parties’ intentions by declining to retroactively infer an implicit

waiver of surface rights that the surface owner cannot reasonably have intended. Accordingly, it

is sensible to return to the parties’ intent in defining the scope of permissible surface damage.

The mineral owner does not have the right, under a general mineral reservation such as

this one, to extract substances in a manner that would cause serious, long-term interference with

the uses of the surface that the original parties to the deed intended, or with the uses that a

reasonable landowner in the surface owner’s position would be expected to make of the property.

Thus, in general, since “ ‘[s]urface’ means that part of the land which is capable of being used

for agricultural purposes,”

unreasonable to presume (again, absent a specific provision to the contrary) that the surface

grantee intended to accept a conveyance that would deprive him of reasonable agricultural use of

his land. More specifically, in the instant case, given that the court found that “[t]he basic

intention of the parties was to sever the surface and mineral rights to the real property in order to

develop the timber and mineral resources separately,” we will not interpret the deed as allowing

the company to destroy the very timber resources that the grantor conveyed to the grantee. If the

proposed sandstone extraction would, by its nature, result in significant damage or destruction to

trees in the mined area, then it is clearly outside the scope of what the original parties intended,

and we must conclude that the deed does not allow it.

There is some suggestion in the record that the extraction method in question may in fact

seriously harm trees on the surface. The state attached, as an exhibit to its supplemental answers

to the company’s first set of interrogatories,

and Conservation which states that “[p]erhaps the most quantitative loss” caused by the

company’s activities is the

complete destruction of the forest in rock ‘extracting’ areas (as

observed), the trees are pushed aside and the soil left in a condition

13 These supplemental answers were filed after the company’s motion for summary judgment and the state’s

response thereto, but before the court heard oral argument on the motion and before it granted the motion.

where specimen trees cannot return for lack of soil depth and

nutrients. In just one 100-foot section of harvest area, [eleven]

timber sized trees with at least two sawlogs in each were pushed

aside to rot[.]

* * *

The potential for new hardwood growth has also been reduced or

destroyed completely so any future worth of the forest has also

been taken away from the surface owner. When all tree values are

counted per acre, the amount of timber value is staggering.

The company disputes the factual accuracy of this assessment, and also contends that the report

was untimely filed and should not be considered for purposes of the summary judgment motion.

We express no opinion on either point. We simply quote this portion of the record as an

of the type of evidence that, if true, would certainly demonstrate impermissible damage (though

we do not imply that it is necessarily the best, or only, such evidence). For present purposes,

however, we need not even consider the state’s evidence, because the company has not met its

summary judgment burden, and thus the state’s duty to produce evidence in support of its

position has not been triggered.

As stated earlier, in order to negate an essential element of the state’s claim, the company

must show that the proposed extraction method does not impermissibly interfere with the state’s

surface rights. Unless the

and making all reasonable inferences in the state’s favor, establishes the

issue of material fact on this point, the inquiry ends and summary judgment must be denied. As

will be seen, the company has failed to meet this burden. The company’s argument that the

has not presented sufficient evidence on this issue therefore misses the point.

The company’s Statement of Material Facts does not even attempt to address the issue of

destructiveness to the surface. The only references to the extraction method in that document

read as follows:

9. Sandstone dimension stone is mined from the surface or from

just below the surface. Sandstone cannot be mined by a shaft

method due to the inability to stabilize the shaft wall or hole dug to

extract the sandstone. Testimony of Marty Daggett, Transcript at

pp. 76-77; Testimony of Linda Main, Transcript at pp. 96, 99-100;

April Opinion at p. 9.

* * *

14. Daggett’s operations on the Lahiere-Hill Property are

employing the usual, necessary and convenient means for

searching for, mining, working, getting, preparing, carrying away,

and disposing of sandstone dimension stone on the Lahiere-Hill

Property. Testimony of Marty Daggett, Transcript at pp. 75-93;

Testimony of Linda Main, Transcript at pp. 95-104.

Although these statements tend to support the trial court’s finding that the extraction method in

question is “convenient,” they do not speak to the issue of whether that method is so destructive

of the surface as to “destroy the conveyance.” Nor does the cited evidence address that crucial

question. Accordingly, we hold that the company failed to meet its initial burden as the moving

party seeking summary judgment, and the grant of summary judgment as to the state’s

declaratory judgment, trespass and ejectment claims must therefore be reversed.

We also reject the company’s argument that the state’s actions suggest it is engaging in a

surreptitious “condemnation” of a mineral estate that it once considered purchasing. Even if the

company could prove that it previously rejected an unreasonably low purchase offer for this land

by the state, and that this rejection played a role in motivating the state’s present actions, such

proof would not change the fact that the language of the 1951 deed controls – and has always

controlled – the parties’ rights to this land. This case turns on a deed interpretation question, not

a condemnation question.

III.

That leaves the state’s nuisance claim, which requires a far shorter discussion, in light of

our findings above. Unlike the claims for declaratory judgment, trespass and ejectment, the

success of the state’s claim for public nuisance does not necessarily

that the company lacks the right to mine for sandstone on the subject property – but certainly,

now once again at issue. This is particularly true given that the trial court’s dismissal of the

nuisance claim relied in part on the notion that “the removal of sandstone comports with the

mineral reservation,” and on the related conclusion that “the Defendants have been reasonable,

and legal, with regard to their activities.”

Furthermore, in any event, the company’s aforementioned failure to demonstrate the

absence of a factual dispute over the destructiveness of its extraction methods also necessarily

dooms its motion for summary judgment on the nuisance claim, since the same facts are equally

material to that claim. Accordingly, the grant of summary judgment on this issue was also

improper.

IV.

The judgment of the trial court is vacated. Costs on appeal are taxed to the appellee,

Lahiere-Hill, L.L.C. This case is remanded to the trial court for further proceedings, pursuant to

and consistent with this opinion.

_______________________________

CHARLES D. SUSANO, JR., JUDGE