concurring:
I find the Majority’s embarking on an analysis of the Open Mine Doctrine to be superfluous to the facts at bar. The question is: Why would not the Exception and Reservation Clause in Lias' Deed to Frye, and, in turn, Frye’s Deed to the plaintiffs/appellants be sufficient to retain the life tenant’s (Lias’) right to extract the oil and gas as so reserved in the Deed?
A life estate arises when the conveyance, as is the case here, expressly limits the duration of the created estate in terms of the life of a person (Lias). Instantly, the grantor reserved to himself the use of the minerals on the property for his natural life. No one disputes the clarity with which the life estate was created, and the remaindermen’s interest was postponed until an ascertainable life in being expired.
*391My reading of the Clauses in question leaves no doubt in my mind that Lias expressly and intentionally reserved to himself the right to extract the natural resources from the land in question. This reservation was plainly written so that all subsequent purchasers (grantees) would be on notice of the right reserved. Accordingly, I see no need to resort to the Open Mine Doctrine to determine the rights of the parties at bar.
On the question of damages, the law is quite clear as to the liabilities and responsibilities of one having a life estate; to-wit:
His use and enjoyment of the premises is limited by the law of waste, that is, he is under a duty to refrain from any act which will diminish the value of the reversion or the remainder if such act is also, under all the circumstances, an unreasonable use of the premises.
Moynihan, Cornelius J., Introduction to the Law of Real Property 59 (1962); Smith and Boyer, Survey of the Law of Property 237-39 (1971).
The Cronans did not assert that the use of the land was “unreasonable” under the terms of the Deed. Accordingly, I would affirm the judgment of the court below.