concurring in part and dissenting in part.
It is gratifying that, at long last, this court has taken the trouble to read Buchanan and recognize that the holding there is that ownership of the coal gives the right to strip mine. This recognizes the myth of the “broad form deed” as not being the genesis of the right to strip mine. Unfortunately, the “broad form deed” cases do not reflect this. The “broad form *312deed” cases are all result oriented, wander back and forth on reasons for the result, and all have the mistaken premise that the “broad form deeds” gave this power to strip. This myth extends up to and including Commerce Union “language that is so extensive as to subordinate the rights of the surface estate to the demands of the mineral estate.” After Commerce Union, in 1976, we had one rule of mineral law for Eastern Kentucky, i.e., Buchanan, “ownership of the coal gives the right to strip”; and one for Western Kentucky, i.e., “ownership of the coal does not give the right to strip.” It is noted in the majority opinion that the mineral deed there was not a broad form deed. I wonder if any member of the court prior to Commerce Union even bothered to read Buchanan. The majority observes that Commerce Union restricted virtually unlimited rights of mineral owners to broad form deeds. Buchanan and Commerce Union are in absolute conflict. I do not understand the language that Commerce Union is overruled to the extent it is inconsistent with the majority. It should be overruled unequivocally, lest there be a lingering suspicion that there is still one rule of law for Eastern Kentucky and another for Western Kentucky. It should be made clear that ownership of the coal gives the right to strip mine even in Western Kentucky.
My concern that there may yet be two rulés of law in Kentucky stems from language in the majority that:
... under ... Buchanan, the owners of mineral rights under a typical broad form deed have the absolute ... right to mine the minerals by any means....
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... the owner of mineral rights under a broad form deed may use the surface— all of it — to acquire the minerals lying thereunder.
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The provisions in typical broad form deeds are, beyond cavil, clear and unambiguous. They are, in fact, overwhelming in their language to demonstrate an intent to convey away the rights to the minerals described....
(I had always supposed that any deed conveying the mineral did so without the necessity for overwhelming language, whatever that is.)
I think the majority unfortunately affirms the holding in Buchanan, giving the right to strip incident to the ownership of the minerals. With the above-quoted language and with similar language sprinkled throughout, I have nagging doubts.
I have always regarded Buchanan as an aberration in the law of minerals. There is absolutely no prior authority for the holding. The statement in Buchanan, quoted in the majority as a dose of pragmatism:
The rule has become so firmly established that it is a rule of property law giving the rights under many mineral deeds conveying much acreage in Eastern Kentucky. To destroy this rule now would create great confusion and much hardship in a segment of an industry that can ill-afford such a blow,
is pure sophistry. There was no such rule of law until Buchanan manufactured it.
This majority opinion represents a radical departure in mineral law. While the “broad form deed” cases assumed the right to strip mine from the terms of the deed, we will now have an implied right to strip mine in all mineral deeds save those with a specific prohibition. With all of the controversy about the “broad from deed” cases, we will now add practically all mineral deeds. I am sure the significance of this has not been lost upon the parties.
I am at a loss to understand why the majority would cite Rudd v. Hayden for the proposition that this court has recognized the rights of the mineral owner to use the surface which “may” include “open-cut, strip, or hydraulic” methods of mining.
Rudd involved a controversy over whether the terms of a mineral deed gave the right to quarry limestone. This court construed “mineral cement,” which was included among coal, clay, oil, and gas, etc., as including limestone. One of the contentions of the surface owner was that limestone was quarried, not mined, and only *313such minerals as are mined were conveyed. The court dismissed the argument, stating that oil and gas are not “mined” and, for some reason, went on to say: "... the term mine is not limited to those cases where a shaft is sunk into the ground but may include ‘open cut,’ ‘strip,’ or ‘hydraulic’ methods of mining.” This opinion did not recognize any of the rights stated in the majority opinion. This is a dictionary-type definition which recognizes only a definition of a word. For some unknown reason, Rudd was cited in Buchanan.
The majority opinion displays a fundamental misunderstanding of many of the cases cited in the opinion. Mclntire, which did not involve a Mayo or broad form deed, construed the necessary and convenient mining rights contained in the mineral deed. The court held that the coal company had the right to erect and maintain houses, tipples, stores, road or other structures. It was further held that the qualified right reserved to the surface owner to use the land for agricultural purposes so far as such rise is consistent with the rights hereby conveyed meant that it was plain that such use was warranted only to the extent that it did not interfere with the right of the company to build houses, shops, buildings, etc. This holding is in accordance with the express language of the deed.
Then, by dicta, the opinion says that by showing the necessity or convenience, the company could occupy all of the surface, taking the house and garden after compensation for the improvements. This dicta noted that damages would be assessed for improvements. No one ever thought that the surface owner was entitled to damages for use of the surface in a state of nature.
In Himler, there was liability to the surface owner. There, the mineral deed had no reservation of mining rights, and the court held that necessary mining rights were implied and that the company had a right to build a railroad to transport coal across the surface. The court further held from the evidence that the railroad was a way of convenience and not necessity and that the surface owner had the right to sue for damages if the company has taken any of the surface for which there was not a strict necessity. The principles in Mclntire are not involved.
In Case, the mineral deed appears the same as Mclntire, not a Mayo or broad form deed. The court held that in the exercise of necessary and convenient mining rights the company had a right to locate and construct a transmission line over the surface and that the fact that the line had not been constructed in ten years was not an arbitrary exercise of power by the company. No damages were allowed in this opinion. The opinion did limit the exercise of necessary and convenient mining rights to the extent that the exercise of the powers were not oppressive, arbitrary, wanton, or malicious. In the 1920’s, the court was construing the term “necessary and convenient” mining rights, and Case represents a limitation if convenient rights are exercised oppressively, etc.
In Wells, the court held that where necessary and convenient mining rights are conveyed in a mineral deed (here, Mayo deed), the coal company is not confined in the exercise of its rights to the surface to that which, in the opinion of a jury, would be absolutely necessary. The company is only responsible for damages if, in the exercise of the rights, it acted arbitrarily, wantonly, or maliciously. Another issue was that a tram road had been constructed over the surface after the coal had been mined and exhausted. This tram road hauled coal from other lands across the surface. The court pointed out that the mineral deed expressly gave this right to the coal company.
The court mentioned only the necessary and convenient mining rights in the mineral deed and did not base any of the rulings on the broad form deed. Oppressive or arbitrary exercise of rights was not involved at all.
Treadway held that the owner had the right to strip mine for the reason that the mineral owner has the paramount right to use the surface, citing Case and others. Buchanan did not cite Treadway as authority for the right to strip mine. This *314opinion reversed the trial court for not permitting an answer to be filed, alleging that stripping would be an “oppressive” exercise of the mineral owner granted privileges. The trial court was directed to hear evidence upon the issue and determine the rights of the parties. We hear no more of Treadway, and I have never seen or heard a proponent of the “broad form deed” suggest this solution to determine the rights of the parties.
I approve of the majority overruling the damages portion of Buchanan. I never thought that rules of law pronounced in logical and reasonable cases involving underground mining should have been used as authority for the denial of damages for strip mining the surfaces.
The broad form deeds really evolve down to granting necessary and convenient mining rights for underground mining.
I am gratified that the majority opinion acknowledges that obliteration of the surface would never have been anticipated by the grantor of the mineral estate. Justice Vance, in his concurring opinion, states that the terms contained in the “broad form” deeds indicate that the parties contemplated deep-mining only.
All of the mining rights granted in a “broad form” deed are consistent with underground mining, particularly use of timber below a certain circumference for mining purposes (roof support props for underground mining) and where the right to sub-jacent support is waived and is permitted, as in one of the mineral deeds here (Akers case) where the mineral owner is permitted to pull pillars and cause subsidence of the surface.
I was under the impression that a basic rule of construction of deeds was to gather the intention of the parties from the language of the instrument.
If it is clear from the deed that the parties contemplated underground mining, how can it be said that the deed gives the right to strip mine, which is inferred in Buchanan from ownership of the coal?
In all of these cases, timber is expressly reserved except for timber up to a certain size which may be used for mining purposes. Buchanan never refers to this express reservation and only one of the broad form deed cases, Kodak Coal Company v. Smith, Ky., 338 S.W.2d 699 (1960), mentions the destruction of timber where the issue is brushed off as incident to the right of utilizing the surface.
On the same theme is the ancient right to subjacent support. A historical analysis of the development of this right is contained in Kentucky Law Journal, Vol. 73, beginning on page 439. It is pointed out that the problem of surface subsidence due to underground mining operations arose early in England and quickly developed by case law to an absolute right of support. This rule of law is recognized in Blue Diamond Coal Company v. Neace, Ky., 337 S.W.2d 725 (1960), which cited H.B. Jones Coal Co. v. Mays, 225 Ky. 365, 8 S.W.2d 626 (1928), and West Kentucky Coal Co. v. Dilback, 219 Ky. 783, 294 S.W. 478 (1927). However, Neace only referred to this proposition as an issue and made no further reference to it. West Kentucky succinctly states the rule in this Commonwealth:
As we have said, the right to mine is subservient to the right of the surface owners to have the surface maintained in its natural state free from subsidence or partings of the soil, and this right of support is absolute and not dependent upon any question of negligence. But this doctrine ought not to be extended any further than applying it to the surface above the mining operation.
H.B. Jones, citing West Kentucky, states the same rule as does North-East Coal Co. v. Hayes, 244 Ky. 639, 51 S.W.2d 960 (1932), and Elk Horn Coal Corp. v. Johnson, Ky., 249 S.W.2d 745 (1952). These last two cases involved “broad form” deeds, as did H.B. Jones. These cases are good law today and have never been considered by the “broad form” deed cases. It is a paradox under the same mineral deed to hold that the surface owner on one hand had an absolute right to subjacent support in an underground mining case and, on the other hand, validate the destruction of the surface by strip mining.
*315Buchanan never treats these issues, nor does the majority opinion. I can only assume these two rights are ignored for the reason they cannot be explained away.
I would overrule Buchanan in its entirety together with its progeny.
The majority does not specify when the owner of the surface should be paid. I hope it means before strip mining commences.
Another thought occurs to me, and that is this court has spoken at great length about John C.C. Mayo deeds as broad form deeds. Although it is not briefed or argued, I wonder why everyone is assuming the deeds involved here are broad form deeds. They are not Mayo deeds. This seems to be an issue that has not been litigated. Perhaps in the plethora of lawsuits which may be generated by the majority opinion an insight will be given into this question.
The deed from E.C. Halliday, etc., to Robert C. Ream, Trustee, in the Baker case, contains the following language just before the description of the first tract by courses and distances: “But agrees to pay damages to improvements and growing crops.”
I would assume this language means what it says that the surface owner can recover for damage to improvements which is the rule expressed in Mclntire. Improvements should mean all buildings, structures, crops, fencing, orchards, and pastures, i.e., all the land not in a state of nature. Obviously, the trial court can have these damages assessed.
Turning now to the constitutional challenge to the statute, I first point out that the theory that the statute impairs the obligation of a contract is simply not tenable. I have been unable to find a case that holds that a judicial decision interpreting a contract vests such an interest in the contract so as to nullify a statute on the ground of impairment of the obligation of a contract. If a judicial decision accomplished this, then the same court would be similarly bound and powerless to adopt a different construction later. None of the cases cited by the coal companies hold that, and, in particular, No. 8 Ltd. does not apply here. The statute involved there purported to be an exercise of police power on the part of the Commonwealth. The simple holding in the opinion is that the Commonwealth may not constitutionally delegate police power to private individuals so that each individual could determine if strip mining should occur on the surface owned by that individual. Thus, the reliance of the majority opinion on No. 8 Ltd. is misplaced.
I am intrigued by the approach of the General Assembly in the selection of language in KRS 381.930, et seq.
In particular, I refer to: “(6) To codify a rule of construction for mineral deeds relating to coal extraction so as to implement the intention of the parties at the time the instrument was created; (7) To foster certainty and uniformity in the operation of law.”
The rules of construction in KRS 381.940 appear to be another way of saying that the courts should construe the mineral deed in accordance with the intention of the parties.
Reading the mineral deeds here, and the Mayo deeds, can lead but to one conclusion — that the parties contemplated deep mining, not surface mining.
This is recognized in the majority opinion. It does not seem to be all bad that the General Assembly would codify what we have always said and direct that we follow our own rule. In this respect, I am of the opinion the legislation is valid.
I do not understand the concern in the majority about permitting parol evidence to explain the terms of an unambiguous instrument. So far as Eastern Kentucky is concerned, in the area of the Mayo deeds, we take judicial notice that there was no strip mining at the time the deeds were executed. The Mayo deeds have also been construed as unambiguous. I do not know about other areas of Kentucky, including other areas of Eastern Kentucky. After all, it is not settled that all mineral deeds contain no ambiguity.
*316If we take judicial notice that there was no strip mining in the area of the Mayo deeds and they contain no ambiguities, then parol evidence is not indicated.
I am of the further opinion that this court cannot by opinion vest property rights which cannot be changed by subsequent opinion if not already exercised. By the same token, the General Assembly has the constitutional power to do the same.
WINTERSHEIMER, J., joins in this dissent.