concurring.
I agree' with much that the Court has written on motion for rehearing; and I particularly agree with the Court’s conclusion that if lignite lies at the surface of the land, no further proof would be required to establish the title of Reed to the lignite as against Wylie’s claim under the 1950 reservation.
I also agree that under our practice, there was a lack of summary judgment proof as to the location of the lignite; and so I agree with the judgment of remand by the Court.
I disagree, however, with an important holding of the Court which is expressed in its writing that the “surface estate owner must prove that, as of the date of the instrument being construed, if the substance near the surface had been extracted, that extraction would necessarily have consumed or depleted the land surface.” [emphasis supplied]. By this statement, the Court requires, or at least infers, that the surface owner must show that the only method of extracting the mineral, at the time the instrument was executed, would have destroyed or substantially depleted the surface.
Although I agree that the instrument should be construed as of the date of its execution, I believe that the surface owner should prevail if he shows that any reasonable method of production would have destroyed or depleted the surface estate. The Court’s more onerous burden is not required by the holding in Acker v. Guinn, and I believe that the less burdensome requirement I would impose is more in keeping with the reasoning in that case.
The rule of Acker is based on the Court’s reasoning that, “It is not ordinarily contemplated, however, that the utility of the sur*174face for agricultural or grazing purposes will be destroyed or substantially impaired [by production of the minerals conveyed].” 464 S.W.2d at 352. The Court, therefore, stated the general rule to be that when the substance must be produced by surface-destroying methods, then the term “minerals” should not be construed to include that substance absent a showing of an intent to the contrary. Since it was undisputed that the only way to produce the iron ore in Acker was by open pit or strip mining, the Court concluded that as a matter of law the iron ore had not been conveyed in the mineral deed.
In Acker v. Guinn, therefore, this Court did not decide the question of whether a substance passes as a mineral if that substance may be, but does not have to be, mined by surface-destroying methods. In this case, however, the Court has decided that question. By holding or implying that the surface owner must show that the only method of producing the substance would have destroyed the surface, this Court here holds that if there were two methods of production at the time of the instrument, one of which would have destroyed the surface, and the other which would have not, then the substance is a “mineral” which was conveyed to the mineral owner.
Under the reasoning of Acker, I would reach a different conclusion. I would think that a surface owner would not intend to convey away an unnamed substance as a “mineral,” when any reasonable method of producing that substance would destroy or deplete his estate. If strip mining was a reasonable method of recovery at the time of the execution of the instrument, then the surface owner could reasonably expect that method to be used to extract the substance; and he would not intend to convey it as a “mineral” to the mineral owner. Therefore, I would hold that the surface owner need only show that a reasonable method of extraction would have entailed the destruction of the surface. Upon such a showing, the substance would be deemed not to be a “mineral”; and therefore it would not have passed to, or have been retained by, the mineral owner in the instrument.
DANIEL, J., dissents.