concurring in part and dissenting in part.
I would uphold the constitutionality of KRS 381.930.945 and overrule this Court’s decision in Buchanan v. Watson, Ky., 290 S.W.2d 40 (1956). I take this position because of my conviction that at the time the instruments were executed the parties to the so-called “broad form deed” did not contemplate strip mining or any significant damage to the surface of the land.
The typical broad form deed contains extremely broad language in favor of the grantee. Nowhere in the instrument, however, is the mining method identified, and the timber is reserved to the surface owner as is the right to freely use the surface for agricultural purposes. As strip mining was unknown at the time of execution of the instrument and significant surface rights were reserved to the landowner, it is clear that the parties did not contemplate harm to the surface of the land in the course of mineral removal. They clearly expected the minerals to be removed by the only existing methods.
Justice Stephenson accurately observes in his opinion that Buchanan v. Watson is “an aberration in the law of minerals. There is absolutely no prior authority for the holding.” The advent of equipment capable of moving massive amounts of earth created the potential for dramatic change in the benefits and burdens of the parties. The Buchanan court ignored the state of technology which existed at the time the instruments were executed, and erroneously conferred a right upon the mineral owners which did not exist by virtue of the deed. I agree with the Supreme Court of Tennessee as its view is expressed in Doochin v. Rackley, 610 S.W.2d 715, 719 (Tenn.1981):
Strip mining cannot be presumed to have been within the contemplation of the parties. Consequently, no right to strip mine accompanied ownership of the mineral rights. Nor is there any evidence that the parties intended a contrary result.
While I disagree with much contained in the majority opinion, surely one portion of it is correct: “It is clear that Kentucky is standing naked and alone in the view under Buchanan.” The states of Ohio, Virginia, West Virginia, Pennsylvania, Tennessee, Colorado, and Texas* have all expressed the view that since strip mining is incompatible with the enjoyment of the surface estate, the right to remove minerals does not carry with it the right to destroy the surface unless the contrary intention affirmatively appears in the instrument. In Skivolocki v. East Ohio Gas Company, 38 Ohio St.2d 244, 313 N.E.2d 374 (1974), the Ohio Supreme Court adopted the Pennsylvania view as expressed in Stewart v. Chemicky, 439 Pa. 43, 266 A.2d 259, 263 (Pa.1970) quoting Wilkes-Barre Twp. School District v. Corgan, 403 Pa. 383, 386, 170 A.2d 97, 98 (1961) as follows:
Where the language of a contract is contradictory, obscure, or ambiguous, or where its meaning is doubtful, so that it is susceptible of two constructions, one of which makes it fair, customary, and such as prudent men would naturally execute while the other makes it inequitable, unusual, or such as reasonable men would riot be likely to enter into, the interpretation which makes a ra*317tional and probable agreement must be preferred.
While I concur with that portion of the majority opinion which allows the surface owner to recover damages, taken as a whole, the majority opinion does little to remedy the harm caused by Buchanan.
KRS 381.930-.945 is almost identical to the Tennessee statute addressed in Doo-chin v. Rackley, supra. The court in Doo-chin sufficiently answered the constitutional challenge to the statute, and its reasoning is persuasive. To the extent that some may argue reliance upon prior decisions of this Court as protection from change, it should be noted that:
There is no vested right in the decisions of a court, and a change of decisions of a state court does not constitute the passing of a law (in contravention of the United States Constitution, Article I, Sec. 10), although the effect of such change is to impair the validity of a contract made in reliance on prior decisions.
16A Am.Jur.2d Constitutional Law § 703 (1979).
The Contract Clause, Article I, Sec. 10, of the United States Constitution, and Sec. 19 of the Kentucky Constitution protect only those rights which are embraced in the contract of the parties at the time the contract is entered into. The subsequent occurrence of unforeseen advantage is not entitled to constitutional protection. As the Supreme Court said in El Paso v. Simmons, 379 U.S. 497, 515, 85 S.Ct. 577, 587, 13 L.Ed.2d 446 (1964):
These developments (the discovery of mineral wealth) hardly to be expected or foreseen, operated to confer considerable advantages on the purchaser and his successors and a costly and difficult burden on the State. This Court’s decisions have never given a law which imposes unforeseen advantages or burdens on a contracting party constitutional immunity against change. (Citations omitted.) Laws which restrict a party to those gains reasonably to be expected from the contract are not subject to attack under the Contract Clause, notwithstanding that they technically alter an obligation of a contract. (Emphasis added.)
With the enactment of KRS 381.930-.945, the General Assembly did no more than codify a rule of construction designed to give effect to the intention of the parties. I do not regard this as an attack upon the Constitution of Kentucky and see no reason to declare it unconstitutional.
Franklin v. Callicoat, 119 N.E.2d 688 (Ohio 1954); Phipps v. Leftwich, 216 Va. 706, 222 S.E.2d 536 (Va.1976); West Virginia-Pittsburg Coal Co. v. Strong, 129 W.Va. 832, 42 S.E.2d 46 (1947); Stewart v. Chemicky, 439 Pa. 43, 266 A.2d 259 (1970); Doochin v. Rackley, 610 S.W.2d 715 (Tenn.1981); Smith v. Moore, 172 Colo. 440, 474 P.2d 794 (1970); and DuBois v. Jacobs, 551 S.W.2d 147 (Tex.1977).