dissenting.
Dissenting Opinion of May 25, 1977.
I concur in the holding of the Court that lignite and coal were not included in the terms of the reservation of a portion of “all oil, gas and other minerals on and under the land” in question, but for additional and different reasons. First, I would apply the rule in Acker v. Guinn, 464 S.W.2d 348, (Tex.1971), to the near-surface coal and lignite which form a part of the surface. I would not extend it, however, to require factual or legal findings as to whether the substance must be mined only by surf ace-depleting processes.1
At the outset it should be noted that the plaintiff, Bette Reed, Trustee, sued the defendants, W. C. Wylie and wife, only for the title to “all of the coal and lignite that may be mined and removed by open pit or strip mining methods.” Defendants raised the broad issue of title to deeper coal and lignite by asserting title to Vi of all lignite and coal under the reservation in the deed from Wylie and wife to J. F. Baker and wife, predecessors in title to the plaintiff.
I would hold that Acker v. Guinn should be applied as to the near-surface coal and lignite which may be’ mined and removed from the premises by open pit or strip min*175ing methods without any requirement that the surface owner must prove that such method of extraction was the only method of removing this near-surface mineral at the time of the deed. In my opinion the intention of the parties in Acker was determined by this Court on the basis of the near-surface ore being so much a part of the surface estate that it, like gravel and limestone, “should be considered as belonging to the surface estate and not as a part of the minerals,” rather than because its only method of production must consume or destroy the surface. The latter was only one test of ownership of the ore as part of the surface. The controlling principle was the iron ore’s existence so near the surface that it formed a part thereof rather than a part of the “minerals.”
Further, as to this near-surface ore as well as the deep-basin ore (200 to 5,000 feet below the surface), I would hold that coal and lignite were not included in the reservation of lU of “all oil, gas and other minerals,” because neither was named along with oil and gas in the specific enumeration and neither falls within the “catch-all” general phrase “and other minerals.” The latter obviously applies only to oil and gas related minerals which may be extracted through wells drilled into the subsurface of the soil. Not only is lignite coal a solid or hard mineral, different from oil and gas in various characteristics, but its near-surface (from 1 to 200 feet) production by open pit mining necessarily interferes with the other uses of the surface owner, and from this record it is apparent that underground shaft mining of both near-surface and the deep-basin (200 to 5,000 feet below the surface) would place a substantially different burden on the surface owner than the drilling and producing of oil, gas, sulphur and related minerals through well bores.2
The phrase “all oil, gas and other minerals” is a common term lifted from oil and gas lease forms used in this State as early as 1919. See Producer’s and other forms in the Appendix to Thuss, Texas Oil and Gas, 2nd Ed. 1929, 453-478. The phrase is frequently used in fee “oil, gas and other mineral” reservations and conveyances. Petitioner Wylie, claiming that “other minerals” in his reservation covers coal, fails to cite any Texas case so holding, and I have found none. The majority of other jurisdictions which have considered the question have held that the phrase “all oil, gas and other minerals” does not include coal. Besing v. Ohio Valley Coal Co., 155 Ind.App. 527, 293 N.E.2d 510 (1973); Wulf v. Shultz, 211 Kan. 724, 508 P.2d 896 (1973); Panhandle Cooperative Royalty Co. v. Cunningham, 495 P.2d 108 (Okl.1971). Cf. Collins v. Coastal Petroleum Co., 118 So.2d 796 (Fla.App.1960).3
In Wulf v. Shultz, supra, the Supreme Court of Kansas was called upon to decide whether a mineral lease “grants to the lessee the right to extract coal, clay, gypsum, limestone . . . from the leasehold as well as oil and gas and their derivatives” when the lease is framed as a grant “to dig, drill, operate for and procure natural gas, petroleum and other mineral substances.” The court concluded as follows:
“An examination of the lease leads us to but one conclusion: That the intention of the original parties to the lease was to restrict the scope of the lease to the exploration and production of oil, gas and related minerals.
* * * * ‡ *
“. . . Surely, if the parties had contemplated that the lease was to cover minerals other than oil and gas, or relat*176ed substances, they would have mentioned them specifically in the lease.”
After making the above holding, the court added that “the rule of ejusdem gen-eris has been applied in cases similar to this both in Kansas and other jurisdictions,” but it recognized that “courts generally have not limited their construction of leases and deeds containing the language ‘oil, gas and other minerals’ to an application of the rule of ejusdem generis,” and the court did not do so in that case. Rather, it used the rule only to test and support its previous construction of a lease which was not contended to be ambiguous by either party.
The question in Panhandle Cooperative Royalty Co. v. Cunningham, supra, was whether a conveyance of an undivided interest “in and to all oil, gas and other minerals” included copper, silver, gold or any other types of metallic minerals or metallic ores lying in, upon or under the land covered by the conveyance. The Oklahoma Supreme Court answered in the negative, stating that the deed granted “the right to prospect for, discover, produce and own oil, gas and other minerals produced as oil or gas or produced as a component or constituent thereof, whether hydrocarbon or non-hydrocarbon, and does not grant any other mineral or the right to produce any other mineral including copper, silver, gold or any other types of metallic ores or metallic minerals.” Concluding that the intention of the parties was unambiguous, the court said: “We did not use ‘ejusdem generis ’ in our interpretation of this deed . . . ,” although the rule was recognized as a proper and useful rule of construction to interpret words of doubtful meaning.4
In Besing v. Ohio Valley Coal Co., Inc. of Kentucky, 155 Ind.App. 527, 293 N.E.2d 510 (1973), the question was whether a deed covering “all gas and other minerals” included coal deposits underlying the land described in the deed. The Indiana court considered the phrase “and other minerals” to be ambiguous enough to permit extrinsic evidence which showed that the parties were primarily involved in the oil and gas business and that coal, although known to be present in the area, was not generally considered to be commercially recoverable. Besing, the grantee, cited Acker v. Guinn, supra, for the position that “. . . a general grant or reservation ... of all minerals without qualifying language *177should be reasonably assumed that the parties intended to sever the entire mineral estate from the surface estate . The court answered this argument in its final conclusion as follows:
“In the instant case there was not a grant of all minerals without qualifying language, but rather a grant of ‘other minerals’ as qualified by the words ‘oil, gas, and’ immediately preceding ‘other minerals’.”
The Indiana court held that the term “and other minerals” was not meaningless, citing the lower court’s finding:
“That as a natural adjunct to the production of oil or natural gas from a drilled oil and/or gas well, certain hydrocarbons which are known as casing head gasoline and casing head gas are also sometimes produced, and in addition to these hydrocarbons, on some occasions sulphur, helium, brine, and carbon dioxide are also naturally produced along with the production of oil and gas from a drilled oil or gas well.”
Professor Kuntz, whose writings were partially followed in Acker v. Guinn, supra, addresses the above stated rule as follows:
. . Since minerals may be severed piecemeal, i. e. both as to type and location, if the language of the instrument indicates a specific intention to do so, then that intention must be given full effect. For example, where the purposes of the grant indicate that a specific type of mineral was intended to be covered, or where there is an enumeration of certain minerals having characteristics in common followed by ‘etc.’, or where the description of the rights or removal are sufficiently specific to indicate that only a certain character of mineral was intended to be covered, then, in such cases, there is a specific intent present and it is expressed, although perhaps not with the desired clarity.”5
Although coal of every type and nature is a mineral in the geologic sense, so is every other inorganic species having a definite chemical compound. The term in its general sense has such a broad significance that it could include “any constituent of the earth’s crust.” Gladys City Oil, Gas & Mfg. Co. v. Right of Way Oil Co., 137 S.W. 171, 177 (Tex.Civ.App.1911), affirmed Right of Way Oil Co. v. Gladys City Oil, Gas & Mfg., 106 Tex. 94,157 S.W. 737 (1913). The scientific or technical definition of minerals is so broad as to embrace not only metallic minerals, oil, gas, stone, sand, gravel and many other substances, but even the soil itself. Heinatz v. Allen, 147 Tex. 512, 217 S.W.2d 994 (1949). That is why cases have continued to arise as to what mineral substances are considered to be a portion of the surface when there has been a severance in general terms or in specific terms followed by general “and other minerals.” A windfall of great proportions often occurs in favor of one who obtains title under unrestricted general terms, but my opinion refers only to the language before us in the Wylie reservation of Vi of the “oil, gas and other minerals.” I fully recognize that a reservation, conveyance, or lease in the terms of “all minerals of whatsoever kind or character,” or similar unrestricted terms would include all minerals (with the exception of those which comprise a part of the surface). Psencik v. Wessels, 205 S.W.2d 658 (Tex.Civ.App.1947, writ ref’d).
Minerals have been a blessing to Texas, but the term has plagued our courts in efforts to determine what is covered by the term in various leases, reservations and conveyances. Much of this is because of the failure to enumerate specific minerals intended to be dealt with, especially when the parties probably had no subjective intent at all concerning minerals known or unknown to them at the time of their dealings.
There was little doubt about what was encompassed in the term “mines and minerals” when they were owned by the sovereign separate and apart from the soil under the civil law of Mexico, which remained in effect in Texas until 1866. The Mining Ordinances of May 22, 1783, promulgated for Mexico by the King of Spain, enumerat*178ed the minerals owned by the sovereign and subject to exploration as
“. . . not only the mines of gold and silver, but also those of precious stones, copper, lead, tin, quicksilver, antimony, calmine, bismuth, rock salt and other stoney matter (fossils), be they ores or semi-minerals, bitumen, and liquids (juices) of the earth . . . .” Chapter 6, Section 22. (Rockwell’s Spanish and Mexican Law 54-55).6
If the parties to the deed in question had intended that the mineral known as lignite or coal was to be included in the reservation, it would have been an easy matter to say so.7 Despite the fact that this particular solid mineral had been mined in the area previously and was at the time under a lignite lease, Wylie, the reserving grantor, did not specify the substance in the reservation. As the deed was written, the reservation should be construed to cover the stated fraction of all oil, gas and other related minerals such as sulphur, helium, carbon dioxide, casing head gas, and distillate, but not lignite, coal, gold, silver or other solid minerals.
Although I reach the same result as the majority with respect to the particular tract under consideration, my reasoning as to non-inclusion of lignite and coal would apply to all leases, reservations, and conveyances which do not mention these substances and which rely solely on the meaning of “all oil, gas and other minerals,” regardless of the depth of lignite or coal. As heretofore indicated, my opinion is limited to the construction of these particular words of the particular instrument under consideration.
With due respect, I question the soundness of the manner in which the majority reached its result and believe that it will lead to ownership uncertainties and litigation almost on a tract-by-tract basis whenever and wherever title to lignite coal is concerned. Land titles will be decided more by inspection for near-surface out-croppings and proof of the necessary method of producing the substance at the time of the deed or lease than by reading the instruments of conveyance or lease.
The rule of the majority would also lead to inequities. For instance, under the majority’s reasoning a reservation, conveyance or lease of oil, gas and other minerals would include coal and lignite if nothing to the contrary was stated and if there was no coal or lignite near the surface, the production of which could be accomplished only by open pit strip mining on the date of the instrument being construed. To demonstrate the problem with this rule, let us suppose that two farmers owned adjoining tracts of 1,000 acres each. Both signed the same form of lease or conveyance of %ths of “all of the oil, gas and other minerals in and under and that may be produced from said land,” to the same grantee or lessee for the same consideration per acre. Assume that both had deep lignite or coal deposits which could be extracted through shaft mining. Assume further that farmer A had no coal or lignite near the surface of his 1,000 acres which could be produced by strip mining, but farmer B had fifty acres of his 1,000 acres on which lignite was close to the *179surface and could be commercially produced only by depletion or consumption of the surface of that particular fifty acres.
Under the reasoning of the majority, the grantee or lessee would get from farmer A title not only to %ths of his oil and gas but %ths of his coal and lignite. Prom farmer B, his neighbor, the grantee or lessee would get %ths of his oil and gas but none of his coal and lignite — not even any of the deep strata on 950 acres of the land which was not overlaid by lignite on or near the surface. This seems to be an instance of the tail wagging the dog. I suppose the rule would be the same even on a 50,000 acre tract, if any part of the tract had near-surface lignite or coal which could be mined only by open pit or strip mining at the time the instrument was executed. If the lease or deed is worded as in the present case, the title examiner cannot tell from the instrument whether the surface owner or the mineral lessee or grantee has title to the lignite and coal until certain factual determinations are made on the ground and possibly in the courtroom.
My reasoning may not please the mineral owners under “oil, gas and other mineral” conveyances or reservations, but at least it would provide a clear and simple test which can be made by reading the instrument; it is applicable to old as well as new instruments; and it does not depend on factual proof or changing times.
I especially disagree with that portion of the majority opinion which requires as a test of ownership a finding as to whether the near-surface lignite must be recovered by strip or open pit mining. The majority holds that in order to prevail, the surface estate owner must prove that, as of the date of the instrument being construed, the only method of extraction of the substance at near surface depths would have consumed or depleted the surface estate. It is this must prove requirement which places a heavy burden on the surface owner and which will result in lawyers going to the courthouse more often to examine witnesses than to examine deed records.
This case is of such great importance that each of the parties has filed multiple briefs, and fourteen amicus briefs have been filed by prominent law firms from every section of the State. Ten of the amicus briefs support the surface owner in general, but neither they nor the petitioner advocate that the Acker near-surface rule be extended to cover the deeper deposits, and all of them object with vigor against any requirement of proof that surface-destructive processes must be proved as the only means of production in order for the surface owner to prevail as to shallow ore which is part of the surface. Legal issues should not be decided by numbers of briefs filed, but the content of the majority of the briefs is highly convincing on this point. Furthermore, it accords with Professor Kuntz’s statement on this phase of the problem, as follows:
“A rule which requires consideration of the contemporaneous factual or legal setting would create the impossible situation of requiring the title examiner to inquire into the local folk-lore of the area or of requiring the examiner to retain a cata-logued knowledge of the law as to dates of development. In either event, he could never be confident of his conclusion.” 8
I would reverse the judgment of the Court of Civil Appeals and remand the case to the trial court with instructions to enter a judgment in favor of plaintiff, Bette Reed, Trustee, in accordance with this opinion.
. Lignite is a low-rank, brownish-black coal that is intermediate in coalification between peat and bituminous coal. Potential statewide quantities at depths of less than 200 feet available to conventional surface mining are estimated at 10.4 billion tons. Deep-basin lignite, at depths of 200 feet to 5,000 feet below the surface, available through in situ recovery methods, brings the total known Texas lignite resources to more than 100 billion tons, with an equivalent on a BTU basis to 277 billion barrels of oil. Kaiser, Texas Lignite: Near-Surface and Deep-Basin Resources, University of Texas Bureau of Economic Geology 1974, Report No. 79, 1-3. It was one of the first mineral resources utilized by early settlers. See “mine de charbon terre” on map accompanying L’H’eritier, Le Champ D’Asile Tableau Topographique et Historique du Texas . . . (Paris, 1819).
. It was noted in Acker v. Guinn, supra, at p. 352, that hard-mineral mining conducted by the sinking of shafts or tunnels may also require destruction of the surface through the deposit of waste and debris removed to gain access to the ore, but the Court reserved that question, saying that it “will be considered when it arises.” See Clark, Uranium Problems, 18 Tex. B.J. 505.
. Cases to the contrary are found only in North Dakota, where statutory provisions have played an important part in the conclusions reached. See Christman v. Emineth, 212 N.W.2d 543 (N.D.1973); Abbey v. State, 202 N.W.2d 844 (N.D.1972); MacMaster v. Onstad, 86 N.W.2d 36 (N.D.1957); Adams County v. Smith, 74 N.D. 621, 23 N.W.2d 873 (1946).
. Although not relied upon in this opinion, the rule ejusdem generis has been used on occasion in Texas cases dealing with mineral rights. See Justice Norvell’s opinion in Knight v. Chicago Corporation, 183 S.W.2d 666 (Tex.Civ.App.) affirmed 144 Tex. 98, 188 S.W.2d 564 (1945), holding that the term “undivided interest,” as used in the provision of a mineral lease would be given a restricted meaning rather than a generic meaning under the rule of ejus-dem generis. See Fleming Foundation v. Texaco, 337 S.W.2d 846 (Tex.Civ.App.1960, writ refd n. r. e.), which applies the rule to a mineral reservation and holds that water is not a mineral included in the reservation. The rule was also applied in Right of Way Oil Co. v. Gladys City Oil, Gas and Mfg. Co., 106 Tex. 94, 157 S.W. 737 (1913), holding that a conveyance of “all the timber, earth, stone and mineral” did not include oil. The rule is recognized as viable in Kuntz, The Law of Oil and Gas, § 13.3 (1962) wherein it is said: “If two or more minerals are enumerated which do have sufficient characteristics in common to provide the genus, then only minerals having such common characteristics will be included.” See Hortenstine, Coal Included in A Grant or Reservation of “Oil, Gas, or other Minerals”?, 30 S.W.L.J. 481, 490-491 (1976), and Note, “Has Ejusdem Generis As Applied to Mineral Deeds Been Accepted in Texas’’?, 2 Tex.Tech L. Rev. 164 (1971). The doctrine of ejusdem generis is a general rule of statutory construction in Texas. See Stanford v. Butler, 142 Tex. 692, 181 S.W.2d 269 (1944); Fowler v. Hults, 138 Tex. 636, 161 S.W.2d 478 (1942); Shook v. All Texas Racing Assn., 128 Tex. 384, 97 S.W.2d 669 (1936); Farmers’ and Mechanics’ Nat. Bank v. Hanks, 104 Tex. 320, 137 S.W. 1120 (1911); Clynch v. Bowers, 164 S.W.2d 768 (Tex.Civ.App.1942, no writ); Maryland Casualty Co. v. Scruggs, 277 S.W. 768 (Tex.Civ.App.1925, writ ref’d); Galveston, H. & H.R. Co. v. Anderson, 229 S.W. 998 (Tex.Civ.App.1920, writ refd). It was applied also to the construction of a water contract in Combs v. United Irrigation Co., 110 S.W.2d 1157 (Tex.Civ.App.1937, writ dism’d); to construction of a judgment in Stevenson v. Record Pub. Co., 107 S.W.2d 462 (Tex.Civ.App.1937, writ dism’d); interpretation of a deed restriction in Bryan v. Darlington, 207 S.W.2d 681 (Tex.Civ.App.1947, writ refd n.r.e.); and in construction of a will in Erwin v. Steele, 228 S.W.2d 882 (Tex.Civ.App.1950, writ ref’d n.r. e.).
. Kuntz, The Law Relating to Oil and Gas in Wyoming, 3 Wyo.L.J. 107, 114 (1949).
. Sovereign ownership remained in effect when Mexico achieved its independence from Spain in 1821 and when Texas won its independence from Mexico in 1836. When the Republic of Texas adopted the common law in 1840, it specifically provided that such adoption did not apply to “such laws as relate to the reservation of islands, salt lakes, licks and salt springs, mines and minerals of every description . . . .” 2 Gammel’s Laws of Texas 177, 1840. It was not until the Constitution of 1866 that these mines and minerals were released to the owners of the soil. Article VII, Section 39, Constitution of 1866; 5 Gammel’s Laws of Texas 880. Cowan v. Hardeman, 26 Tex. 217 (1862). The same provision was carried forward in the constitutions of 1869 and 1876. State v. Parker, 61 Tex. 265 (1884); Cox v. Robison, 105 Tex. 426, 150 S.W. 1149 (1912). See Hawkins, El Sal del Rey (1947).
. Affidavits in the present case assert that the parties to the deed in question intended the reservation to include lignite, which was then under a recorded lignite lease, but there was no allegation of mutual mistake or effort to reform the instrument. Under the circumstances, we must construe it as written. See Anderson & Kerr Drilling Co. v. Bruhlmeyer, 134 Tex. 574, 136 S.W.2d 800 (1940).
. Kuntz, The Law Relating to Oil and Gas in Wyoming, 3 Wyo.L.J. 107, 114 (1949). For writings suggesting that Acker v. Guinn should not be so construed or extended see: Comment, Lignite — Surface or Mineral? The Single Test Causes Double Trouble, 28 Baylor L.Rev. 287, 300-312; Is Coal Included in a Grant or Reservation of “Oil, Gas or Other Minerals”?, 30 S.W.L.J. 481, 504-507. See also Surface or Mineral: A Single Test?, Baylor L.Rev. 407, 416-418.