dissenting:
I respectfully dissent from the majority’s holding as set forth in syllabus pt. 3, which indicates that the rights and duties of independent contractors, carrying out work at the instance and under the direction of landowners, may be analyzed in terms of privity of contract and privity of estate. In my view the majority’s discussion concerning privity of contract and privity of estate both misses the point and is wrong.
The facts are not in dispute. On June 1, 1956, the New River and Pocahontas Consolidated Coal Company conveyed certain parcels of surface land in Berwind to Paul W. Jones, Trustee. By the terms of this conveyance the grantor reserved all mineral rights, as well as certain appurtenant rights relating to the mining, production, and transportation of minerals. Further, the grantor conveyed the surface rights subject to a broad exculpatory clause releasing grantor from all liability for damage that mineral production might cause to the surface itself, improvements to the surface, crops, and water. The surface property interest acquired by Paul W. Jones, Trustee, was thus quite limited, as Paragraphs First and Fifth of the deed, set out in the majority opinion demonstrate. Nevertheless, no one contends that the owner of land cannot convey the surface subject to restrictions and limitations which enhance his enjoyment of the retained mineral interest.
*275On August 15, 1956, the plaintiffs in this action, Lonnie and Hattie Johnson, acquired one parcel of surface land from Paul W. Jones, Trustee. Their deed recited that they took the property subject to the “conditions, exceptions, reservations, and limitations as contained in all prior deeds conveying the said real estate same as though they were set out herein in extenso.” Accordingly, the property interest acquired by the Johnsons was limited by the reservation of mineral rights in their chain of title as well as by certain convenants and restrictions, related to the mineral reservation, which ran with the land.
By agreement dated August 18, 1961, Consolidation Coal Company acquired New River’s mineral estate by lease. Subsequently, on September 1, 1961, Consolidation made arrangements with Junior Pocahontas Coal Company to serve Consolidation as an independent contractor and to operate upon the leased property, including the property involved in this case.
Plaintiffs Lonnie and Hattie Johnson instituted this action against Junior Pocahontas, alleging it conducted mining operations negligently or in willful and wanton disregard of the rights of others, and further alleging that their property was damaged as a proximate result of the mining operations. Defendant denied that its mining operations were conducted in a negligent, careless and reckless manner. The complaint and answer thus appear to set up genuine issues as to material facts. The trial court, however, granted summary judgment to defendant on the basis of its affirmative defense, namely, the exculpatory clauses in the plaintiffs’ chain of title. The question whether such exculpatory clauses are valid has therefore been squarely presented to this Court.
I would rather see the Court confront this issue head-on than sidestep it by creating an independent contractor exception to limit the applicability of exculpatory clauses in certain situations. This ad hoc solution may stem from an understandable aversion to exculpatory clauses, but it tends to produce irrational results. In *276effect the majority is saying that mineral owners producing their own coal may enjoy the benefit of exculpatory clauses, while those mineral owners who want to employ independent contractors to produce coal may not enjoy the benefit of exculpatory clauses. This arbitrarily drawn distinction will make it impossible for owners of mineral interests to avail themselves of the economical means of extraction which independent contractors now provide.
In this case Junior Pocahontas, as servant of Consolidation Coal Company, is attempting to hold the plaintiffs to a promise of exculpation from liability made by plaintiffs’ predecessors in title. This presents the classic question of whether the burden of a promise respecting the use of land runs with the land so as to bind successors in title to the original promisor. The Restatement of Property § 530 (1944) provides the basic answer:
“Subject to the rules stated in §§ 531 to 537, the successors to land respecting the use of which the owner has made a promise become bound upon the promise as promisors.”
The qualifying rules stated in §§ 531 to 537, Id., do not remove this particular case from the ambit of the general rule stated in § 530. Section 531, Id., states as follows:
“The successors in title to land respecting the use of which the owner has made a promise are not bound as promisors upon the promise unless it was intended by the parties to the promise that they should be so bound.”
Intention can be manifested in many ways, and in this case it is manifested most clearly and directly. The original deed of June 1, 1956, conveying the surface interest to Paul W. Jones, Trustee (party of the second part) states:
“As a part of the consideration for this conveyance, the party of the second part covenants and agrees with the party of the first part as follows. ... That all of the covenants, agreements and restrictions herein contained shall be bind*277ing upon the party of the second part and successors in title, and that all of said covenants shall run with the title to and be binding upon the property hereby conveyed.”
This language certainly satisfies the requirement that there be manifest intention that the promise shall run.1
Section 532, Id., deals with the formalities surrounding the making of the promise. It states:
“The successors in title to land respecting the use of which the owner has made a promise cannot be bound as promisors upon the promise unless it is made in such form as to be binding upon the promisor and is in writing under seal.”
In this case the required formalities have been sufficiently observed with a deed written by grantor and accepted and recorded by grantee. The Restatement’s seal requirement need not be observed, since West Virginia has eliminated the necessity for seals in land conveyances. TV. Va. Code, §§ 36-3-1 and 36-3-3 (1923).
The Restatement of Property § 533 (1940) is concerned with the effect of recording acts:
“The successors in title to land respecting the use of which the owner has made a promise are, as against the claim that they are bound as promisors upon the promise, entitled to the protection of the recording acts.”
No one has alleged that there are any irregularities in connection with the recording of the deed conveying the surface interest to Paul W. Jones, Trustee, or the deed conveying the surface interest to the Johnsons. The defendant in this action, Junior Pocahontas Coal Company, Inc., in its affirmative defense alleges that the Jones *278deed is recorded in the Office of the Clerk of the County Court of McDowell County, West Virginia in Deed Book No. 224 at page 34. This allegation is not controverted in the record. Plaintiffs in their complaint acknowledge that their deed to the property from Paul W. Jones, Trustee, is recorded in the same clerk’s office in Deed Book No. 225 at page 458. It is worth noting at this point that the latter deed, attached as an exhibit to the Motion for Summary Judgment, specified that it
“... is made subject to all and singular, the conditions, restrictions, exceptions, reservations and limitations as contained in all prior deeds conveying the said real estate same as though they were set out herein in extenso.”
Section 534, Id. establishes the requirement of privity between the promisee and promisor:
“The successors in title to land respecting the use of which the owner has made a promise are not bound as promisors upon the promise unless
“(a) the transaction of which the promise is a part includes a transfer of an interest either in the land benefited by or in the land burdened by the performance of the promise; or
“(b) the promise is made in the adjustment of the mutual relationships arising out of the existence of an easement held by one of the parties to the promise in the land of the other.”
The facts of this case bring it within the scope of § 534(a), Id.
Section 535, Id., is concerned with privity as between promisor and successor:
“The successors in title to land respecting the use of which the owner has made a promise are not bound as promisors upon the promise unless by their succession they hold
“(a) the estate or interest held by the promisor at the time the promise was made, or
*279“(b) an estate or interest corresponding in duration to the estate or interest held by the promisor at that time.”
Both Paul W. Jones, Trustee, and the Johnsons held the same estate in the property, although the Johnsons parcel was only a part of the larger parcel acquired by Jones. Section 536, Id., takes this apportionment problem into consideration:
“The successor to the estate or interest of the promisor in any part of the land respecting the use of which he has so made a promise that it is capable of running with the land becomes proportionally liable as a promisor upon the promise.”
As Comment (a) of § 536, Id., makes clear, “... it is not a prerequisite to the running of the promise that there be a succession to the whole of the land with which the promise is capable of running. If there is a succession to a part of that land there is a succession to the obligation of the promise.”
Finally, § 537 establishes a requirement that there be a relation between the benefit and burden:
“The successors in title to land respecting the use of which the owner has made a promise can be bound as promisors only if
“(a) the performance of the promise will benefit the promisee or other beneficiary of the promise in the physical use or enjoyment of the land possessed by him, or
“(b) the consummation of the transaction of which the promise is a part will operate to benefit and is for the benefit of the promisor in the physical use or enjoyment of land possessed by him,
and the burden on the land of the promisor bears a reasonable relation to the benefit received by the person benefited.”
This section sets forth in formal language the requirement that the promise must “touch and concern” the *280land with which it runs. It is clear that the exculpatory clause directly touches and concerns the property respecting the use of which the promise was originally made.
There is also a question in this case whether the benefits of a promise respecting the use of land run with the land so as to entitle successors to the original promisee to enforce the promise. In property law this question is traditionally less controversial than the question whether the burdens of a promise run with the land. The general rule is stated as follows in § 542, Id.:
“(1) A person other than one initially entitled to enforce the obligation of a promise respecting the use of land may acquire the ability to enforce the obligation of the promise by succession to the land of one initially entitled to the benefit of the promise.
“(2) When succession to the ability to enforce a promise occurs in the manner described in Subsection (1), the promise is said to run with the land.”
Since the qualifications in subsequent sections do not change the operation of the general rule in the case, and since many of the qualifications are similar to those discussed in connection with the running of burdens, I will forego further discussion at this point.2 See, §§ 543-553, Id.
*281Representative West Virginia cases applying these principles include Hurxthal v. Boom Co., 53 W. Va. 87, 44 S.E. 520 (1903); Parsons v. Baltimore, etc., Loan Ass’n., 44 W. Va. 335, 29 S.E. 999 (1898); Lydick v. Baltimore & O. R. Co., 17 W. Va. 427 (1880); and Ballard v. Kitchen, 128 W. Va. 276, 36 S.E.2d 390 (1945).
I might be more receptive to the majority’s view in this case if it were supported by persuasive and well-reasoned precedent which seemed to dictate the result reached, or at least seemed to undermine the traditional analysis I have set forth above. The decision, however, is based primarily upon public policy analysis, and the citation of authority is unconvincing. The majority opinion turns upon the distinction between privity of estate and privity of contract and cites the following passage from Am. Jur. 2d in that connection:
“A distinction is made between privity of contract and privity of estate, and the rule is that privity of contract alone is insufficient to carry the benefit of a covenant to subsequent owners of the property. Similarly, a difference is indicated between the benefit and the burden with respect to the necessity for privity of estate. Thus, while the benefit, upon a transfer of land, will pass with the property to which it is incident, the burden or liability will be confined to the original covenantor, unless the relation of privity of es*282tate exists or is created between the covenantor and the convenantee at the time when the covenant is made.” 20 Am. Jur. 2d, Covenants, Conditions, and Restrictions § 34 (1965).
A careful reading of this passage, as well as the text preceding and following it in Am. Jur. 2d, shows clearly that the passage has no application to the facts at hand. Privity of estate is defined in Am. Jur. 2d as “a mutual or successive relationship to the same rights of property.” Id., § 34. This definition and my discussion of the law of covenants both indicate that the benefit of the exculpatory clause has run from the original convenantor, New River and Pocahontas Consolidated Coal Company, to its successor, Consolidation Coal Company, while the burden has similarly passed from the original covenantee, Paul W. Jones, to his successors, including the plaintiffs in this action. Therefore, all parties having rights to this particular property are bound by the exculpatory clause. The privity of contract distinction has been thrown into the analysis as a red herring. The contractual relationship between Consolidation Coal Company and Junior Pocahontas does not involve land covenants or rights to property, but rather is an employment relationship in which Junior Pocahontas as employee has undertaken to perform work for Consolidation, employer. The following example illustrates the flaws in the majority’s analysis. Suppose Mr. Smith sold a piece of his property to Mr. Jones for a building lot and Mr. Jones convenanted to observe a 50' setback line. Subsequently, Mr. Jones has the XYZ Construction Company begin a house on the building lot with only a 25' setback. Mr. Smith seeks to enforce the covenant, only to be told that under the reasoning of this case the covenant cannot be enforced against an independent contractor such as the XYZ Construction Company.
This could not actually happen, since the rule of this case is limited to exculpatory clauses. The limitation obviously springs from the most compelling necessity. Were the logic of the independent contractor exception to be applied to covenants other than exculpatory *283clauses our law of property would be thrown into mass confusion. Again, I repeat, if we are going to give exculpatory clauses special treatment, let us do so directly and straightforwardly. Let us develop a special rule which deals with the peculiar and unique characteristics of exculpatory clauses. Why turn to a general rule, such as the independent contractor exception, and then limit its application to one special situation because its universal application would be unsound and unwise?
Among all the branches of the law, property law may have the highest requirements for stability. In the factual context under consideration a reasonable compromise must be made between adequate respect for the sanctity of contracts and the public policy against grossly inequitable oppression of the weak by the strong. If we met this issue directly, we would probably be concerned with the allegations in the complaint that the work was done negligently and with indifference to injury to the surface. To what extent are exculpatory clauses which may have been dormant for three quarters of a century still valid in light of the need to use the surface of the land in a growing State? What are the responsibilities of the extractors of minerals to protect their fellow human beings from misery and destruction? What is the effect on industry and the eminently legitimate enterprise of mineral extraction of not enforcing exculpatory clauses upon which generations of businessmen have relied? Ultimately we must reach these issues.
Much of the foolishness in the law finds its origin in attempts by judges to find general rules for the disposition of peculiar cases. The majority opinion is an example of this process in action. Technicality upon technicality have been released upon an unsuspecting bar by the inveterate predilection of judges to use technique, i.e., nice'legal distinctions which give the appearance of applied logic, instead of cogent functional analysis. When urgent public policy requires a change in settled law, that is what should be done. If the opinion will not write honestly (in the sense of intellectual integrity), it should not be written.
In this respect, see, also W. Va. Code, § 36-4-1 (1923) which states:
“When the words ‘the said ... covenants,’ are used in a deed, such covenant shall have the same effect as if it was expressed to be by the covenantor, for himself, his heirs, personal representatives and assigns, and shall be deemed to be with the covenantee, his heirs, personal representatives and assigns.”
There is only one question that might arise in connection with the running of benefits in this case. That is whether the running of the benefits would be affected in any way by the fact that Consolidation, as lessee, succeeded to only part of the estate held by New River, the original promisee. Again, the Restatement of Property (1944) provides the answer. Section 547, Id., states as follows:
“The benefit of a promise respecting the use of land of the beneficiary of the promise can run with the land only to one who succeeds to some interest of the beneficiary in the land respecting the use of which the promise was made.” (Emphasis added)
By comparing this section with § 535, Id., (set out in the text of the opinion) one can see that the rule as to the running of benefits is less stringent than the rule as to the running of burdens. The *281liberality of § 547, Id. is well explained by Comment (c) of § 547, the pertinent part of which states:
“The concept of identification, upon which the running of both the burden and the benefit of promises respecting the use of land is based, presupposes a succession to an interest in the land with which the promises run. Historically, such a succession meant a succession to the interest of the predecessor in that land. This historical rule is still applicable in the case of the running of the burden (see § 535). It is no longer true with respect to the running of the benefit. The benefit will run with any part of the interest of the beneficiary of the promise if the part succeeded to is of such a character that performance of the promise will be of benefit to the owner of it.”
The illustration given in Comment (c) Id. lays to rest all doubt that a lessee succeeds to the benefits of a promise and is entitled to enforce the promise.