1. Where an owner of the entire estate in land by warranty deed conveyed "all the right and title to all the minerals and mineral interests in" such land, "with the right to enter thereon and to open. dig into and remove the surface in order to mine said minerals, together with rights *Page 67 of way over said land, and the right to divert watercourses in order to conduct said mining operations, and all incidental mining privileges as provided in the laws of Georgia; to have and to hold the said bargained premises together with all and singular the rights, members, and appurtenances thereof, to the same being, belonging, or in anywise appertaining, to the only proper use, benefit and behoof of him the said party of the second part, his heirs, executors, administrators, and assigns, in fee simple: Held:
(a) Such deed of conveyance severed the title to the minerals and mineral rights from all other rights in the land and conveyed the same to the grantee in fee simple.
(b) In such case the rights conveyed would not be lost by mere non-user for any period of time, and one who purchased the land subject to such conveyance of the minerals and mineral rights would never acquire title thereto upon the theory that the mineral rights and privileges were terminated by failure to exercise them within a reasonable time.
2. Where the owners of such minerals and mineral rights in conducting their mining operations removed soil, dirt, and timber away from the tract of land as to which such minerals and mineral rights were conveyed, the owner of the surface could not recover damages for such removal, in the absence of any averment to show that the mining operations were conducted in a negligent or improper manner, or that the acts complained of were not reasonably necessary to obtain the minerals conveyed.
3. The original deed which conveyed the title to the minerals and mineral interests having granted also the right "to open, dig into, and remove the surface in order to mine said minerals," one who purchased the land subject to such deed was not entitled to subjacent support for the surface under which mining operations were conducted, since under the terms of the deed the surface itself could be removed in order to obtain the minerals. From the allegations of the petition as amended, it did not appear that the plaintiff as the owner of the surface was entitled to any of the relief prayed, either legal or equitable: and the suit was properly dismissed on general demurrer.
No. 13890. OCTOBER 25, 1941. On June 18, 1941, George W. Brooke filed a suit for injunction and damages against New Riverside Ochre Company, a partnership composed of J. R. Dellinger and others. Georgia Peruvian Ochre Company, and J. R. Dellinger as an individual. The plaintiff alleged that he was the owner of a described tract of land in Bartow County, on which the defendants were conducting a mining business under certain deeds beginning with a deed from a common propositus, purporting to convey the mining rights, but that the rights claimed by the defendants had expired by failure to exercise *Page 68 the same within a reasonable time and are now vested in petitioner. The defendants filed a general and special demurrer, which the court sustained on all grounds, and the plaintiff excepted.
The land in controversy, of which the plaintiff now claims to be the absolute owner, is the west half of lot of land 530 in the 4th district and 3d section of Bartow County, consisting of twenty acres. The petition alleged in effect that the entire estate in this tract was formerly vested in B. G. Howard and others. In the main, the controversy depends upon the effect of the deeds under which the defendants claim, relating to mineral rights, and the deeds under which the plaintiff claims, purporting to convey the remaining interest.
From the allegations and exhibits the following facts appear: On May 30, 1896, B. G. Howard and other executed and delivered to Garrett B. Linderman a certain deed, the consideration of which was stated as $4500, conveying five acres of land in Bartow County described by metes and bounds; also "all the right and title to all the minerals and mineral interests in the following property situated, lying, and being in the fourth (4th) district and third 3d section of Bartow County, State of Georgia, and known as the `Howard farm' consisting of land lots five hundred and thirty (530), five hundred and thirty-one (531) [besides the whole of two other lots and parts of five others described], with the right to enter thereon and to open, dig into, and remove the surface in order to mine said minerals, together with rights of way over said land, and the right to divert watercourses in order to conduct said mining operations, and all incidental mining privileges as provided in the laws of Georgia;" a further clause in the deed being, "To have and to hold the said bargained premises, together with all and singular the rights, members, and appurtenances thereof, to the only proper use, benefit, and behoof of him the said party of the second part, his heirs, executors, administrators, and assigns, in fee simple." The deed contained a general warranty of title. This deed was duly recorded on March 21, 1898.
On June 18, 1897, Garrett D. Linderman executed and delivered to the Georgia Peruvian Ochre Co., a corporation, for a stated consideration of $68.043.25. various tracts of land in Bartow *Page 69 County; also "all minerals and mineral interests of every kind and nature whatsoever, together with all incidental mining privileges as provided by the laws of Georgia, in and to the following land lots and parts of lots viz.: numbers five hundred and thirty (530), five hundred and thirty-one (531) [and other lands]. To have and to hold the said bargained premises, together with all and singular the rights, members, and appurtenances thereof, to the same being, belonging, or in anywise appertaining, to the only proper use, benefit, and behoof of the Georgia Peruvian Ochre Company, the said party of the second part, its heirs, executors, administrators, and assigns." This deed was recorded on July 7, 1897.
The petition after amendment alleged that the defendants other than the Georgia Peruvian Ochre Company are lessees of that company, and that "the above said purported conveyances and provisions comprise all claims of right under which the defendants are acting or attempting to act in mining on said 20 acres of land," the whole title to which is claimed by plaintiff.
The chain of title under which the plaintiff claimed as remote grantee of B. G. Howard and others began with a deed from B. G. Howard and others to Thomas C. Crenshaw, dated May 30, 1896, consideration $3,000, describing and conveying the same lots 530 and 531 in Bartow County, and other lands, except a described tract of five acres, and "excepting also the right and title to all the mineral and mineral interest in said property with the right to enter thereon, and to open, dig into, and remove the surface in order to mine said minerals, together with rights of way over said entire land, and the right to divert watercourses in order to conduct said mining operations, and all incidental mining privileges as provided in the laws of Georgia. Which said five (5) acres above described, as to which no interest whatever is hereby conveyed, and which said minerals, mineral interests, and rights have this day been deeded by the parties of the first part to Garrett B. Linderman of the County of Northampton, State of Pennsylvania, which deed is hereby referred to for a fuller description thereof." Other deeds were from Crenshaw to Munford, and Munford to the present plaintiff. It is under these three deeds that the plaintiff now asserts title to all of the west half of lot of land 530. In the deed from Munford to the plaintiff was the following clause: *Page 70 "all mineral interest and mining privileges are excepted in said lots of land numbers 530 [and other lots described]."
As to this tract of twenty acres, the plaintiff alleged that a part of the same is open and in cultivation, the rest "being in timber," and that all of same is located in the City of Cartersville and is valuable for building lots. The petition further alleged: "The defendants are in the mining business, and, by means of a steam shovel and large trucks, have recently entered upon the said 20 acres of land and are engaged in mining barytes therefrom, and in doing so have dug a large excavation thereon, covering one acre of land, ranging from 5 to 40 feet deep, and have carried all of the surface, dirt, and mineral so mined off of said 20 acres of land, thereby confiscating all of the same. Petitioner says that more than 3,000 tons of barytes ore has been mined and carried from said 20 acres and more than 22,000 tons of dirt, rock, and soil have been carried away therefrom and deposited in a mud pond more than one mile away on the property of New Riverside Ochre Company, and all of the balance of the soil, rock, dirt, and timber coming out of said mining cut has been carried from the west half of lot number 530 and deposited on the east half of said lot, which east half does not belong to petitioner. The defendants, in mining as aforesaid, are removing dirt which lays on top of ore, but the top covering contains no ore. The soil, rock, and dirt which the defendants are carrying entirely off of the lands embraced in the deed from B. G. Howard et al. to Garrett B. Linderman and in deed from said Howards to Thomas C. Crenshaw is such soil and dirt as is mined with said ore and intermingled with same and washed out of said ore in the plant of said New Riverside Ochre Company and then deposited on its property one mile from said 20 acres. All of the aforesaid products are valuable to petitioner and his property."
Petitioner is the owner of said twenty acres of land in virtue of the chain of title last above described, beginning with the deed from B. G. Howard and others to Thomas C. Crenshaw, dated May 30, 1896, and ending with the deed from Munford to himself, dated May 2, 1902, all duly recorded; and "petitioner and his predecessors in title have been in the peaceful, exclusive, and uninterrupted possession of said 20 acres of land under said claim of right for 45 years." "The possession which petitioner and his *Page 71 predecessors in title have exercised on said 20 acres of land during the past forty-five years has been limited to agricultural cultivation, about 15 acres of same and the cutting of timber on the remainder, petitioner not claiming that he has done any mining or exercised any mining rights on said 20 acres. Defendants and their predecessors in title, likewise, have never mined or been in actual possession of the mineral on said 20 acres, prior to April 1st, 1941." Under the aforesaid conveyances to and by Linderman, the grantees and their assigns did not have an unlimited time in which to mine said minerals and exercise said mineral rights, but had a reasonable time only. Said mining operations of the defendants first began on April 1, 1941, about 45 years after the deed from Howard and others to Linderman, and that a reasonable time had already elapsed within which to mine said minerals, "especially said barytes," and "Georgia Peruvian Ochre Company and its assigns are now divested of any title they may have had in said mineral and mining rights. Likewise all persons other than petitioner are divested of such titles and rights and same are vested in the owner of the surface and soils of said lands, the petitioner herein."
"Petitioner charges further, that defendants, even were they now possessed of the titles to said minerals, barytes, and mining rights, they are not possessed of the right to confiscate the surface, the soils, and growing timber on said 20 acres of land, and in removing the said minerals they must so exercise their purported rights as not to destroy the same, and as not to remove the subjacent supports thereof, but would be required to so mine said minerals as to leave said surface, soils, and timbers intact for the use of petitioner for agricultural and building and other purposes. Even could defendants remove said trees, timbers, and soil, they have no right to take the same entirely off of the said 20 acres of land and the said Linderman property, and wash and deposit the same on other lands where they may not be recovered for the purpose of filling up said large excavation; all of which acts of the defendants in trespassing on said land, mining thereon, opencut mining, and carrying the said property of petitioner onto lands a mile or more away and off of the said Linderman lands, is an invasion of petitioner's rights and injurious to him." "The removal of said soil, dirt, rocks, and timber is being accomplished *Page 72 in the way and manner [hereinbefore stated]. With respect to the cutting of timber, petitioner says that such cutting by defendants is being accomplished by cutting down the trees over an area about 16 feet wide and about 16 feet ahead of said steam shovel, mining in said cut, the bodies and tops of trees are left on said 20 acres, but the stumps and roots are carried to said dump pile about 200 yards off of said 20 acres."
"Petitioner and his predecessors in title have for forty-five years been in actual, notorious, and exclusive possession of said land. His damages are irreparable, and there is no method whereby petitioner can ascertain the amount of mineral that has been or will be taken from said lands and its value, and the amount of soil and timber taken or to be taken therefrom. Defendants' acts in so mining constitute a continuing trespass, and will necessitate a multiplicity of suits unless injunctive relief is granted him."
The petition contained prayers for injunction, damages in the sum of $10,000, accounting. a decree of title in the plaintiff as to the mining and mineral rights, and general relief. 1. It appears from the petition that the plaintiff and the defendants claim under a common source of title, namely, B. G. Howard and other, who on May 30, 1896, made two deeds: one to Garrett B. Linderman conveying the minerals and mining rights in described lands, including the twenty-acre tract now owned by the plaintiff, and the other to Thomas C. Crenshaw, conveying this tract and other lands but excepting the minerals and mining rights so conveyed to Linderman. The defendants claim under the deed to Linderman, while the plaintiff claims under the deed to Crenshaw.
The first and basic contention of the plaintiff is that the first deed did not convey the minerals and mining rights forever, but that under the terms and conditions of this deed the right to use the land for mining purposes was determinable on failure to exercise it within a reasonable time: and that such time. approximately forty-five years having expired, the estate in the minerals was divested so far as the defendants were concerned, and became the property of the plaintiff as the owner of the remaining estate. There is no merit in this contention. *Page 73
The owner of the entire estate or interest in land may sever an estate in the minerals and convey the same absolutely in fee simple. This was clearly done by the deed from B. G. Howard and others to Garrett B. Linderman. In fact, words more appropriate to such purpose could hardly be found in any instrument. It conveyed "all the right and title to all the mineral and mineral interests" in the land described, "to have and to hold the said bargained premises, together with all and singular the rights, members, and appurtenances thereof to the same being, belonging or in anywise appertaining," to the grantee, in fee simple. It also contained a general warranty of title. When mineral interests have been conveyed separately from the surface, title to such minerals will not be lost by nonuser. Neither will it be lost by prescription, where there is no adverse user of the minerals themselves, as distinguished from the surface. Davison v. Reynolds, 150 Ga. 182, 184 (103 S.E. 248). See Houser v. Christian, 108 Ga. 469 (34 S.E. 126, 75 Am. St. R. 72);Georgia Peruvian Ochre Co. v. Cherokee Ochre Co., 152 Ga. 150 (108 S.E. 609); Scott v. Laws, 185 Ky. 440 (215 S.W. 81, 13 A.L.R. 369, 372); Claybrooke v. Barnes, 180 Ark. 678 (22 S.W.2d 390, 67 A.L.R. 1436, 1440); Uphoff v. Trustees of Tufts College, 351 Ill. 146 (184 N.E. 213, 93 A.L.R. 1224, 1232).
The plaintiff relies upon cases dealing with title to timber and timber rights, such as Morgan v. Perkins, 94 Ga. 353 (21 S.E. 574), and Jones v. Graham, 141 Ga. 60 (80 S.E. 7); and while cases of this type have been treated as analogous in several decisions by this court relating to minerals and soil, the analogy was recognized because of the terms of the conveyances and the attendant circumstances. Grant v. Haymes,164 Ga. 371 (1, 4) (138 S.E. 892); McCaw v. Nelson,168 Ga. 202 (3) (147 S.E. 364); Moxley v. Adams, 190 Ga. 164 (8 S.E.2d 525). It is insisted by the plaintiff that these three decisions are absolutely controlling, in that they refer to minerals and soil and apply the rule as to reasonable time for removal, as enunciated in the timber cases. We can not agree that the rulings made in these cases are applicable in the case at bar. In the Grant case, the owner of the land executed a bond for title in which he referred to a sand bank on the property to be conveyed, and reserved the right to remove the sand, together with the right to remove the timber growing over said bank, "so as to *Page 74 the better enable him to get the sand." It was held that the grantor did not have an unlimited time in which to remove the sand, having only a reasonable time; but the decision appears to have been based on the particular language in which the reservation was "couched."
In the McCaw case, the deed was not general as to minerals, but conveyed specific minerals, to wit: all of the kaolin and clay properties in and upon the land owned by the vendor, with right to enter upon the land, and "to mine said kaolin and clay properties, and for that purpose to have free ingress and egress over and upon any and all lands of said [vendor], said right to continue until said kaolin and clay properties are fully mined and exhausted." It thus appears that the right was not granted forever in fee simple, as in the case at bar. Still other facts appeared, including findings of an auditor, which should be considered in construing that decision.
In the Moxley case, the lessee was not given an unlimited right to remove the soil from the land and use it on the leased premises, but such right was in terms limited to the "filling in" of the leased premises for the purpose for which they were to be used; that is, the construction of a filling-station, which according to the contract was to be done "within a reasonable time."
In none of these cases was there a deed of conveyance purporting, as here, to convey "all the right and title to all the minerals and mineral interests . . in fee simple." An owner of land may convey the fee-simple title even in trees growing thereon, with an interest in the soil sufficient for their continued growth, at the same time retaining in himself the fee in the soil; and where an instrument contains apt words for these purposes, the estate in the trees will not be terminated by a failure to remove them in a reasonable time. North Georgia Co. v. Bebee, 128 Ga. 561 (57 S.E. 873). It has been held that the rule which may bar the right to remove timber from another's land by lapse of time does not apply to the removal of minerals the right to which has been severed from the surface; this upon the theory that minerals, unlike trees, do not draw upon the soil for sustenance, and failure to remove them would not interfere with the use of the surface. Bodcaw Lumber Co. v. Goode,160 Ark. 48 (254 S.W. 345, 29 A.L.R. 578). *Page 75
The nature of the subject-matter may, of course, be an important factor in construing a deed or other instrument, when the language is such as to require interpretation, and the distinction drawn in the Bodcaw case might be sound and applicable in some instances; yet the paramount rule in all cases is to ascertain the intention of the parties, considering the language of the agreement and "the attendant and surrounding circumstances." Code, § 20-704; North Georgia Co. v. Bebee, supra. Under this rule, we conclude that the deed from B. G. Howard and others to George B. Linderman, under which the defendants claim, conveyed a separate and independent estate in the minerals and mineral rights, with the further right to enter and remove the same, forever in fee simple, and that the plaintiff was entitled to no relief based upon the theory that the right of removal was limited to a reasonable time.
2. The plaintiff further contends that even if the title to the minerals and mining rights was still in the defendants, they would not have the right to confiscate the soil, dirt, rock, and growing timber by removing the same entirely off the tract of twenty acres owned by the plaintiff, a part of which being carried more than two hundred yards from plaintiff's land and other parts more than a mile therefrom. As to these matters, however, the plaintiff's claim was based on an alleged trespass, the petition alleging in paragraph 2 that the defendants had damaged the plaintiff in the sum of $10,000 or other large sum by trespassing on the real estate of petitioner, "as will more fully hereinafter appear." There was no allegation that the removal of such substances was unnecessary to the proper enjoyment of the thing granted, or that there was negligence on the part of the defendants in conducting their mining operations. Under the grant to their predecessor in title conveying the minerals and mineral rights, they had authority to exercise these rights "in such way as would be reasonably necessary to enable [them] to mine the designated minerals, or in other words to enjoy the thing granted." Georgia Iron Ore Co. v. Jones, 152 Ga. 849 (111 S.E. 372). So, in the absence of any averment that the mining operations could be reasonably conducted in any other manner than as shown, the petition did not state a cause of action for damages. See, in this connection, Spencer v. Gainesville,140 Ga. 632 (79 S.E. 543).
3. Finally, it is contended that the plaintiff as the owner of the *Page 76 surface is entitled to subjacent support, so that the surface will remain intact for agricultural, building, and other uses. Ordinarily an owner of the surface is entitled to such support, either natural or artificial (Collinsville Granite Co. v.Phillips, 123 Ga. 830, 51 S.E. 666), but such right may be conveyed by the owner of the surface, and in this instance it was conveyed by the deed from B. G. Howard and other to Linderman, to which the plaintiff's title is subject; in other words, the deed expressly granted the right to open, dig into, and remove the surface, in order to mine said minerals. In the circumstances there was no implied right to support of the surface under which the mining operations were being conducted, the right to remove even the surface itself having been conveyed. See, in this connection, Griffin v. Fairmont Coal Co., 59 W. Va. 480 (53 S.E. 24, 2 L.R.A. (N.S.) 1115); Edsall v. Lehigh Valley Coal Co., 32 Pa. Co. Ct. 545; Graff Furnace Co. v. Scranton Coal Co., 244 Pa. 592 (91 A. 508); Gordon v. Delaware c. R. Co.,253 Pa. 113 (97 A. 1033).
The court did not err in sustaining the general demurrer and dismissing the action.
Judgment affirmed. All the Justices concur.