concurring.
I concur in the result reached by the majority. This result is dictated by the holdings of this Court in Acker v. Guinn, 464 S.W.2d 348 (Tex.1971) and Reed v. Wylie, 554 S.W.2d 169 (Tex.1977). I further agree with the majority opinion’s analysis and interpretation of those decisions and its reexamination of Reed v. Wylie. The announced rule provides much relief from the uncertainty of “who owns the coal and lignite” extant under the decisions of Acker and Reed.
I cannot agree, however, that the resultant rule provides identifiable and workable criteria to either mineral owners or surface owners. I would go further and announce prospectively a rule that would enable any person reading a mineral lease or reservation to know from the instrument itself what has been granted or reserved without resort to factual investigation.
The majority holds that if in the reasonably immediate vicinity the mineral deposit is at or near the surface and any reasonable method of removal will consume, deplete, or destroy the surface, the minerals belong to the surface owner. Implicit in this holding are at least four possible fact issues which must be resolved in order to determine whether the surface owner or the mineral estate owner is entitled to the coal and lignite: (1) are there deposits in the “reasonably immediate vicinity”; (2) are there deposits “at or near” the surface; (3) must the deposits “conform generally to the contour of the earth’s surface” as suggested by Acker; and (4) what is a “reasonable” method of recovery? No doubt, several decades of litigation could narrow these issues, but it will require numerous suits involving many tracts. Until then, the disputes over the criteria of ownership will guarantee a steady supply of lawsuits.
Several writers have thoughtfully examined the problems presented here. See Kuntz, The Law Relating to Oil and Gas in Wyoming, 3 Wyoming L.J. 107 (1948); Comment, Lignite: Surface of Mineral— The Surface Destruction Test and More, 29 Baylor L.Rev. 879 (1977); Note, Beneath the Surface — Destruction Test: The Dialectic of Intention and Policy, 56 Texas L.Rev. 99 (1977); 15 Hous.L.Rev. 197 (1977); 9 St. Mary’s L.J. 624 (1978). In addition, several excellent amicus curiae briefs filed in this case have offered pertinent and helpful observations and suggestions. The common thread running through all of the law review articles and amicus curiae briefs is the need for a definite and certain rule of property law that would be fair, lend stability to land titles, and allow the development of vital energy sources to proceed, unimpeded by uncertainties of ownership. I have trouble believing that the holdings of the majority opinion accomplish these objectives.
Several writers would have us adopt a rule that would treat the issues of ownership of the substance and reasonable use of the surface as two separate questions. They urge that we construe the term “minerals” as those normally considered minerals regardless of the methods of extraction required, but limit the mineral estate owner to only a reasonable use of the surface to the extraction of the minerals. Surface destructive methods by the mineral estate owner already have been held unreasonable as a matter of law in Acker. Comment, Lignite: Surface or Mineral — The Surface Destruction Test and More, 29 Baylor L.Rev. 879 (1977); 9 St. Mary’s L.J. 624 (1978).
Two of the amici curiae urge the adoption of a rule that unless specifically granted or reserved to the mineral estate or unless the contrary intention is affirmatively and fairly expressed in the instrument of conveyance or reservation, coal and lignite, at whatever depth found and by whatever method it is extracted, belong to the surface owner since the extraction of the particular substances would require large amounts of surface use. This rule could be easily applied with certainty and would conform to the general intent rule. In addition, it would internalize the costs of mining. See Note, 56 Texas L.Rev. 99, supra.
A third alternative would be to adopt the rule espoused by the thoughtful dissent in Reed. 554 S.W.2d at 179. The rule sug*751gested is fair, consistent, and easily understood — “other minerals” does not include lignite and coal.
A fourth alternative is simply a variation of the first suggested rule. The mineral estate owner under a grant or reservation of “oil, gas and other minerals” is entitled to those mineral substances that he can extract from the land by wells or shafts, using only so much of the surface as is reasonably necessary for the dominant estate owner to accomplish the purposes of his estate. See Getty Oil Co. v. Jones, 470 S.W.2d 618, 621 (Tex. 1971); Kuntz, The Law Relating to Oil and Gas in Wyoming, 3 Wyoming L.J. 107,115 (1948). The mineral estate owner would not be allowed to employ any method of extraction that would destroy, deplete, or consume the surface or render it useless unless the instrument specifically grants or reserves the substance to the mineral estate or unless the contrary intention is affirmatively and fairly expressed in the instrument of conveyance or reservation. Absent a specific grant or contrary intention, as much of the mineral substance as is recoverable by surface-destructive methods, regardless of depth, would belong to the surface owner.1 If the substance could be recovered by either strip mining methods or by wells or shafts, the dominant mineral estate owner would have priority, subject to the limitations prohibiting surface destruction and allowing only a reasonable use of the surface. This rule would both effect the general intent of the parties and preserve the horizontal severance of the mineral and surface estates. Furthermore, it is consistent with the rule in Acker:
A grant or reservation of minerals by the fee owner effects a horizontal severance and the creation of two separate and distinct estates: an estate in the surface and an estate in the minerals. . The parties to a mineral lease or deed usually think of the mineral estate as including valuable substances that are removed from the ground by means of wells or mine shafts. This estate is dominant, of course, and its owner is entitled to make reasonable use of the surface for the production of his minerals. It is not ordinarily contemplated, however, that the utility of the surface for agricultural or grazing purposes will be destroyed or substantially impaired. Unless the contrary intention is affirmatively and fairly expressed, therefore, a grant or reservation of “minerals” or “mineral rights” should not be construed to include a substance that must be removed by methods that will, in effect, consume or deplete the surface estate. . .
Acker v. Guinn, 464 S.W.2d 348, 352 (Tex. 1971). I can conceive of no reason for prohibiting the division of the ownership of mineral substances based on the method of extraction.
Any one of the suggested tests would provide more certainty than the rule this court adopts. Whatever the rule, it should be such that the ownership of the substance in question can be ascertained from examining the instrument of grant or reservation alone. The rule should present the ownership of the substance as a question of law, not one that requires factual determinations based on the location of the substance.
It is axiomatic that rules of property are not to be tampered with lightly or easily changed. Persons rely on rules of property in the conduct of their affairs and are entitled to depend on the stability of those rules without periodic alterations occasioned by the changing winds of the day. To announce a new rule in this case, however, would not seem to cause harm to any person who may have acted in reliance on the Acker and Reed decisions. The only likely change in the conduct of surface owners who were aware of those decisions would have been to specifically name iron, coal, *752and lignite in their grant or reservation and thus remove any doubt about their intent. Similarly, mineral lessees and grantees who wished to develop iron ore or coal and lignite after those decisions would have had to purchase rights to those substances from both the surface owner and the mineral owner in order to be assured that they had obtained the right to extract those substances. Those persons holding grants or reservations under instruments covering “oil, gas and other minerals” that were executed prior to those decisions did not rely one way or the other on the rule of the majority. They would, however, be governed by the rule of general intent — that such a grant or reservation of “oil, gas and other minerals” did not contemplate that the surface be destroyed in order for the grantee to recover the “other” unnamed minerals. I fail to perceive any possible harm by announcing a clearer rule.
This court should totally abandon the mire of factual differences requiring a tract-by-tract determination of mineral ownership by extrinsic evidence and move to higher solid ground. The expeditious development of Texas lignite as a vitally needed source of energy in the immediate future is at stake.
. Surface owners are further protected by the provisions of the Surface Mining and Reclamation Act, Tex.Rev.Civ.Stat.Ann. art. 5920-10 (Supp. 1976-77), which places regulation of strip mining in the Texas Railroad Commission under guidelines recently approved by the United States Department of the Interior. See Surface Mining Control and Reclamation Act of 1977, Pub.L. No. 95-87, § 503, 91 Stat. 445, 470 (1977).