dissenting.
I would hold that the surface owner, Mrs. Reed, is entitled to judgment as a matter of *180law. This is for the reasons stated in my former dissenting opinion1 and for the additional reasons stated herein with respect to the opinion of the Court this day substituted for its opinion of May 25, 1977. This separate and additional dissent is directed solely against the following sentences on page six of the new majority opinion:
“. . . Furthermore, the rule of construction does not favor the surface owner simply because it is shown that the substance ‘may’ be produced by strip or pit mining. Instead, 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.)
My objections to this burden of proof being placed upon the surface owner are much the same as those stated in the concurring opinion of the Chief Justice. I agree with him that conditioning the surface owner’s title on proof that surface destructing processes were the only means of extracting the near-surface mineral substances at the time of the deed is a departure from the “general intent” reasoning of Acker v. Guinn, 464 S.W.2d 348 (Tex.1971).
In the absence of ambiguity, I construe the “general intent rule” of Acker as one which calls for construction of the mineral grant or reservation as a matter of law from the terms of the written instrument without the aid of extrinsic evidence and fact findings. It was in such manner that in Acker, after considering the ordinary and natural meaning of the terms, the location of the iron ore with respect to the surface, and methods of production and their effect on the surface, we decided that the substance was “quite similar to gravel and limestone”; that it, like gravel and limestone “should be considered as belonging to the surface estate and not as a part of the minerals.” Thereupon, we held in Acker that “as a matter of law no interest in the ore passed by the [mineral] deed.”
In Acker there was no dispute about the nearness of the substance to the surface or its being subject to a method of extraction which would consume or deplete the surface. Neither do I find any dispute between the parties on these physical characteristics of lignite in the present case. It is shown by this record and is commonly known that lignite is a low-grade coal with near-surface deposits occurring from surface outcroppings to 200 feet below the surface in much of the eastern portion of Texas, including Freestone County, and that it is extracted by modern surface-mining methods.2 Wylie admitted in his post-submission brief that “these substances occur in Texas from points near surface to depths of five thousand feet . .” and that “it is feasible to remove lignite by strip mining methods down to a maximum depth of two hundred feet from the surface.” (Post-Submission Brief of W. C. Wylie, et ux., p. 3.) Furthermore, Mrs. Reed only asked in this suit for a determination of title to “all of the coal and lignite that may be removed ... by open pit or strip mining methods.” Wylie joined issue and tried the case on pleadings, affidavits and briefs which seem to agree that there is near-surface as well as deeper lignite and coal on the land in question.
Under these circumstances I see no need for a remand for the purpose of taking evidence of the location and depth of the near-surface (above the depth of 200 feet) lignite. However, if I am mistaken and there does exist a disputed fact issue between the parties as to such location and depth, the Court has properly remanded for *181proof thereon. If upon rehearing it is agreed or shown that lignite exists at or near the surface, then the trial court should decide ownership to be in the surface owner as a matter of law, it having been conceded that lignite located above 200 feet is subject to extraction by strip mining methods.
The majority opinion agrees that if lignite “lies at the surface of the land, no further proof would be required to establish the title of Reed,” the surface owner. This holding for the surface owner as a matter of law as against Wylie’s mineral reservation in the 1950 deed, does not require the surface owner to prove that if the substance had been extracted at the time of the deed that such extraction would necessarily have consumed or depleted the land surface. I would extend the same holding as a matter of law to lignite shown to exist at or near the surface, because that is the only holding which is in accord with Acker v. Guinn.
Method of production was only one of the three tests of Heinatz v. Allen, 147 Tex. 512, 217 S.W.2d 994 (1949), which led the Court in that case and in Acker to hold as a matter of law that near-surface mineral substances belong to the surface estate unless otherwise specifically provided by the parties. That the near-surface substance was subject to removal by methods which would destroy or impair the surface was an important consideration, but Acker made no requirement of proof that extraction of the substance on the date of the instrument (1941) “would necessarily have consumed or depleted the land surface.” The ultimate and controlling factor was the close physical relationship of the substance to the surface itself. That was our interpretation of Acker when this Court said in Robinson v. Robbins Petroleum Corporation, Inc., 501 S.W.2d 865, 866 (1973):
“. . . When closely related to the surface itself, gravel and limestone and even iron ore have been held not to be embraced by mineral ownership. Acker v. Guinn, 464 S.W.2d 348 (Tex.1971); Heinatz v. Allen, 147 Tex. 512, 217 S.W.2d 994 (1949); Psencik v. Wessels, 205 S.W.2d 658 (Tex.Civ.App.1947, writ ref.).”
The objectionable sentences in the substitute opinion place undue emphasis on the expression “must be removed” in Acker. Atwood v. Rodman, 355 S.W.2d 206 (Tex.Civ.App.1962, writ ref’d n. r. e.), cited with approval in Acker, affirmed a judgment for the surface owner against the mineral owner for all sand, clay, gravel, caliche and limestone which may be removed by the open pit or quarry method.
The rationale of the Acker and Heinatz decisions that near-surface mineral substances belong to the surface estate is based upon the conclusion from the written instruments that the parties contemplated that the integrity and uses of the surface would be protected from destruction by any and all methods of extraction of near-surface minerals that would destroy or deplete the surface. There is no reason to inject a fact question as to the effect of extraction at the time of the deed or leases, because the “general intent” of the parties to a 1940 deed was not simply to avoid destruction of the surface by methods then available but also to avoid such destruction by any methods that may be devised in the future, because the same risk to the surface owner continues to exist. Why limit consideration of the result of near-surface mineral extraction to the time of the deed? Was the intent to protect the surface from destruction or impairment limited only to the date of the deed? Obviously not.
A great and unnecessary burden is placed upon the surface owner as to near-surface lignite by the requirement of extrinsic proof as to the possible means of extraction at the time of the instrument being construed. This could be difficult or impossible in instances of ancient leases and deeds.
There is a rulé of law that proof of the present existence of an object, thing, condition, or method raises the presumption of its prior existence on a given date. Ross v. Green, 135 Tex. 103, 139 S.W.2d 565 (1940); State v. Macken, 162 S.W. 1160 (Tex.Civ.App.1913, writ ref’d); Eubanks v. Winn, 469 S.W.2d 292 (Tex.Civ.App.1971, writ *182ref’d n. r. e.); Brice v. Edwards, 260 S.W.2d 132 (Tex.Civ.App.1953, writ ref’d n. r. e.); Rumbo v. Nixon, 241 S.W.2d 983, 985 (Tex.Civ.App.1951, no writ); Johnson v. Charles William Palomba Co., 114 Conn. 108, 157 A. 902, 80 A.L.R. 441 (1932); II Wigmore on Evidence § 437, 413-414 (3rd Ed.); 31A. C.J.S. Evidence § 140, 305-307; 29 Am.Jur.2d 245, 292; 7 A.L.R.3d § 4, 1308.
Although intention of the parties when they executed the instrument is an important determination, our decisions in the past have not been concerned with their subjective intent, knowledge, or attending circumstances. Unless an ambiguity appears, which is not present here, the interpretation of mineral and surface estate conveyances, leases, devises, and reservations has been by consideration of. commonly known factors, and ownership has been determined from the wording of the instruments as a matter of law. That is the only way to insure certainty and stability of land titles. When we condition title on what “must be proved” concerning the result of a method of extraction as of a given date in the past, we base the intention of the parties not upon the language of their document but on matters of fact and opinion evidence. We have been cited no cases by the parties, and the majority cites none, holding that determination of what constitutes a “mineral” within the meaning of an “other minerals” grant or reservation is a fact question, much less a question limited to production methods as of a past date.
By injecting questions of fact which existed at the time of the deed into the determination of the ownership of near-surface lignite, coal and similar substances, Acker is stripped of all of its precedential value as a matter of law; titles will now have to be determined by fact findings on a ease by case basis. It is clear from this record that the status of near-surface lignite and the method by which it will be mined are not going to change from tract to tract or case to case. Yet if title thereto is tried on a case by case factual basis the result may vary according to the testimony of warring “expert” witnesses and the findings of various juries. This leaves the possibility that those who have dealt with surface rights during the past six years on the basis of the rule of law stated in Acker may or may not end up with title' to near-surface mineral substances, depending upon expert testimony and what a jury or judge finds on this newly required ultimate issue.
For instance, if a jury finds that there was some other means of extracting the near-surface mineral without consuming or destroying the surface as of the date of the mineral reservation, lease, or deed, the surface owner loses even though the only reasonable method of such extraction today is by methods which will destroy the surface. This is a result which hardly could have been contemplated by the parties to the Wylie deed. The possibility of such result should be foreclosed as a matter of law, because there is nothing in the Wylie deed and mineral reservation to indicate that such was contemplated by him or his surface grantee. Under such circumstances, it is unreasonable as a matter of law to permit any construction of the deed which would attribute to either party an intent to reserve from the surface grant any mineral substance which then or at any time in the future might result in the consumption, destruction or substantial impairment of the surface.
As indicated, I would hold as in Acker and Heinatz, as a matter of law, that the ordinary and natural meaning of the term “mineral” does not contemplate that the utility of the surface will be destroyed, consumed or substantially impaired, and that substances such as sand, gravel, limestone, iron ore and near-surface lignite are not within the ordinary and natural meaning of the term “minerals” because they form so much a part of the soil that they are within the ordinary and natural meaning of the term “surface estate.” Paraphrasing Acker, I would hold that in terms of location with respect to the surface, methods by which lignite is mined, and the effect of production upon the surface, the substance is quite similar to gravel, limestone and iron ore. Aside from the general reference to “other minerals,” there is nothing in the *183Wylie deed suggesting an intention to retain in the grantor the right to consume or destroy the surface. It is my opinion that under these circumstances, lignite, like gravel, limestone and iron ore, should be considered as belonging to the surface estate and not as part of the minerals. I would hold that as a matter of law no interest in the lignite coal was retained by the reservation in the Wylie deed.
Accordingly, 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.
STEAKLEY, J., joins in this dissent.. See dissenting opinion of May 25, 1977, reported in Tex.Sup.Ct. Journal, Vol. 20, May 28, 1977, pages 330-334. In order to avoid repetition and rewriting, the former dissent is attached hereto with the only changes being those necessary to conform to the substantial and helpful changes made by the Court in its substituted opinion.
. Kaiser, Texas Lignite: Near-Surface and Deep Basin Resources, p. 3 et seq., Bureau of Economic Geology, Report of Investigations— No. 79 (1974). See also exhibit attached to the post-submission brief of W. C. Wylie showing cross section of Texas Lignite Prospect with a seam of lignite running from surface outcroppings to a depth of 200 feet.