concurring.
I concur in the result of this opinion.
I agree that the sale of mineral rights by deed of severance from the surface carries with it the right to remove the mineral. This was the holding in Buchanan v. Watson, Ky., 290 S.W.2d 40 (1956), and in such earlier cases as Himler Coal Company v. Kirk, Ky., 266 S.W. 355 (1924). There is an implied right, as a matter of necessity, to remove that which has been purchased, even when the document of sale does not expressly create such a right. As was succinctly stated in Himler Coal Company, supra:
“The effect of the conveyance by the Tug River Coal and Salt Company to Barrett of the surface only was the same as if Barrett had been the owner of the entire estate and had conveyed to the Tug River Coal and Salt Company the coal beneath his land, and if he had done that, he could not now be heard to say: ‘it is true that I conveyed this coal to the Tug River Coal and Salt Company, but I didn’t grant to it any right to remove it.’ In other words, he cannot say ‘Yes, I sold it to them, but I am not going to let them have it.’ ”
Himler Coal Company, supra, dealt with an underground mine. Buchanan, supra, dealt with strip mining. Strip mining, of course, does far greater damage to the surface, and it follows that the sale of coal does not carry with it the right to strip mine if there is any other reasonable way to remove the coal with less damage to the surface.
Although the sale of the coal necessarily carries with it the implied right to remove the coal, it does not follow that the surface owner can be damaged with impunity without liability. In the underground mine cases, the mineral owner, as a matter of necessity, had the right to open a shaft to get to the coal and the right to necessary easements across the surface to transport the coal after it had been mined. These were only such rights as were absolutely necessary, and liability did attach for damage to the surface that was not strictly *311necessary. Himler Coal Company v. Kirk, supra.
The mineral owner had no right to cause subsidence and destroy the surface without liability. Thus, the sale of coal, in itself, and without any express waiver of damage, gave the mineral owner some limited use of the surface, but no right to utterly destroy it.
The “broad form” deeds of conveyance contained a long list of mining rights which gave to the mineral owner almost unlimited right to use the surface without liability. It was this long list of mining rights which impelled the court in Buchanan, supra, to hold that the surface owner had voluntarily waived the right to recover for the damage inflicted by strip mining.
The express reservation of mining rights contained in the “broad form” deeds, including in some instances the waiver of damage for subsidence and for use of timber below a certain size, plainly indicates to me that the parties to these deeds contemplated deep mining only. Timbers below the size enumerated were used for roof supports in underground mines, but would not be useful in strip mines. Subsidence occurred when pillars were pulled in underground mines. I believe the Buchanan court erred when it did not limit the waiver of damages contained in the “broad form” deeds to cases involving underground mines, and for that reason I concur with the majority which today overrules that portion of Buchanan, supra.
Nevertheless, the opinion in Buchanan, supra, has been the law in this Commonwealth from 1956 until today. Stability in the law is important, and citizens should be free to conduct their business in view of recognized principles of law. Because many contract rights and business obligations have vested and have been incurred since the 1956 decision in Buchanan in reliance upon that opinion, the majority has deemed it proper to protect those bona fide contract rights and obligations by giving prospective effect only to this decision as it affects those situations.
The cases which have allowed strip mining without liability for damage to the surface have done so upon the theory advanced in Buchanan, supra, that damages had been waived, or under a misperception that Buchanan was premised upon the theory that the granting of overwhelming mining rights in the “broad form” deeds authorized strip mines.
No case, to my knowledge, has held that the utter destruction of the surface is permissible simply because it is a matter of necessity or a necessary mining right in strip mining. It is true that in strip mining the only method in which the coal can be mined often utterly destroys the surface. I do not believe that the line of authority which grants to the owners of coal in underground mining situations the right of necessity to use the surface in such a manner as is necessary to remove the coal (but which as a practical matter did not destroy the surface) should be extended to strip mining situations and permit, as a matter of necessity, the utter destruction of the surface.
I therefore agree with the majority that severance of the coal from the surface carries with it the right to remove the coal, including the right to strip mine if that is necessary. The destruction of the surface occasioned by strip mining, however, must be paid for and should not be permitted as a necessary mining right without liability for damage to the surface unless such damage is expressly waived, and except in those cases that remain protected by prospective application of Buchanan v. Watson.
GANT, J., joins in this concurring opinion.