concurring. I concur with the majority’s decision. First, I agree with the dissent’s analysis that there is a difference between a timber deed, which is more akin to the sale of a crop, and a deed granting mineral rights, which is a separate estate in the minerals beneath the surface. Common sense dictates that while a mineral estate and a surface estate can coexist due to their different positions on and under the land, a surface estate and a timber deed or contract relate to the same locale &emdash; the property above ground. The respective rights of mineral and surface owners are well settled. The owner of the minerals has an implied right to go upon the surface to drill wells to his underlying estate, and to occupy so much of the surface beyond the limits of his well as may be necessary to operate his estate and to remove its products. Diamond Shamrock Corp. v. Phillips, 256 Ark. 886, 511 S.W.2d 160 (1974). His use of the surface, however, must be reasonable. Id. The rights implied in favor of the mineral estate are to be exercised with due regard for the rights of the surface owner. See id. (citing Getty Oil Co. v. Jones, 470 S.W.2d 618 (Tex. 1971)). However, with regard to a timber interest and a surface estate, until the timber is harvested, use of the surface by the surface owner is basically suspended pending the expiration of the contractual term over the timber. For example, a surface owner cannot build a house in a grove of contractually conveyed timber without either cutting down the timber and injuring the timber owner’s interest, or waiting to the detriment of his interest until the timber is harvested. If a timber estate were perpetual, as can be a mineral estate, the surface owner could conceivably be forever barred from developing his land for fear of damaging the timber owner’s interests.
Although I agree with the dissent on this point, I must concur in affirming this case because I think Ms. Bonds did not assert the proper claim below to challenge the timber contract at issue here. Certainly, as the dissent notes, the document in this case is a contract for the sale of “all the merchantable pine and hardwood timber standing, growing and being on. . . [the land].” The contract is to be performed within one huhdred years. To challenge this contract, Ms. Bonds argued that the timber contract was void ab initio because she alleged that Mr. Carter defrauded Mr. Smith by taking advantage of Mr. Smith’s alcoholism to obtain the contract, that a timber contract with a term of one hundred years to perform is against public policy for improper restraint of property, and that the timber contract and description had been materially altered after Mr. Smith signed the contract. These, however, appear to be the claims Ms. Bond asserted in her original lawsuit in 1982, in which she nonsuited her claims pursuant to Ark. R. Civ. P. 41(b) and then never refiled. The trial court noted that the action was dismissed for want of prosecution on January 15, 1986. While I believe that these particular claims are barred by the statute of limitations, I do not think that a dismissal of this current action would bar Ms. Bonds from bringing a different action such as a challenge to the reasonableness of Mr. Carter’s failure to remove “aE the merchantable pine and hardwood timber standing, growing and being on. . . [the land]” that was present in 1981 when the contract was made, or to compel Mr. Carter to remove the only the “merchantable” timber in existence in 1981 and to enjoin him from removing any other timber that matured and became “merchantable” after the moment the contract was created. The statute of limitations perhaps has not run on these or other causes of action to properly enforce the contract pursuant to our case law and consistent with public-policy considerations. Accordingly, I concur and would affirm the chancery court.
Arnold, C.J. and Corbin, J., join.