(dissenting).
I dissent from the majority opinion.
This case presents a question of the interpretation of a deed executed December 29, 1905, known and- designated as “broad form” or “northern” deeds. These deeds, including the one in question, give the owner of the coal the right to use the surface for any and all purposes “deemed necessary” by the grantee to remove the coal. In a number of counties uniform blank deeds were used so that only the description and the name of the grantor were required above the certificate of the acknowledging officer. In many instances deed books were ordered by the clerk at the request of the mineral purchasers. I mention the foregoing circumstances in connection with the so-called rule that a deed should be construed against the grantor.
The question here is whether the grantee may use mining methods (stripping) not known or contemplated by the parties at the time the deed was made to such an extent as to destroy the surface rights of the grantor.
By every rule of contract construction, including construction of deeds, the intention of the parties is the ultimate quest of the interpreter. 17A C.J.S. Contracts *401§ 295. The authorities supporting this proposition are so legion I consider it unnecessary to cite further authority except to say that this jurisdiction has followed the universal rule announced in Parrish v. Newbury, Ky., 279 S.W.2d 229, 233, wherein this court said: “Notwithstanding these general rules, always, as a fundamental and supreme rule of construction of contracts, the intention of the parties governs.”
What was the intention of the parties in 1905? This question provokes another question, What were the usual, known, and accepted mining methods at that time? Certainly strip mining was then unknown and unaccepted. I find a note in Kentucky Law Journal, volume 50, page 525, note 5, which states:
“Strip mining was of no importance until 1914 but ‘knob’ or ‘channel’ coal was mined near Cumberland Lake, Kentucky about 1927. These early operations used picks, shovels, and slip-scrapers drawn by mules to remove the thin overburden.” (Emphasis added.)
Strip mining was neither heard of nor dreamed of in 1905 in Knott County, the locality of the coal land in question. There was no railroad in Knott County until long thereafter. Neither was there a navigable stream in that county. About the only coal mined in those days was from the outcroppings in creek beds, where a small quantity was obtained by the use of a new-found tool — the coal pick.
I contend first that inasmuch as the parties to the “broad form” deeds never contemplated the use of the then unknown method of strip mining and never dreamed of the cataclysmic destruction of the surface, the grantee and his successor in title have no right to remove the coal by stripping methods. Secondly, I contend that if rules of construction are so modified and distorted as to authorize the grantee to use stripping methods, he should be answerable in damages to the surface owners for just compensation.
I shall first show that the majority opinion is erroneous and without precedent, either at home or abroad.
I concede that prior to the decision in Buchanan v. Watson, Ky., 290 S.W.2d 40 (1956), there was a long line of cases by this court holding that the grantees under similar “broad form” deeds had a right to use the surface for any purpose “deemed necessary or convenient” by the grantee. However, all those cases prior to Buchanan involved deep-mining methods, which was the method of mining contemplated by the parties in 1905. But Buchanan really got out in left field when it ignored and disregarded all the rights of the surface owner. This court on many occasions recognized that the surface owner had at least some semblance of right when it held that the owner of the coal must leave pillars of coal to support the surface. 58 C.J.S. Mines and Minerals § 159 c; Jenkins v. Depoyster, 299 Ky. 500, 186 S.W.2d 14; Wells v. North East Coal Company, 274 Ky. 268, 118 S.W.2d 555; H. B. Jones Coal Company v. Mays, 225 Ky. 365, 8 S.W.2d 626; and North-East Coal Company v. Hayes, 244 Ky. 369, 51 S.W.2d 960.
Not only is the majority opinion contrary to the laws of sister coal states, such as West Virginia and Pennsylvania, as I shall point out later, but the majority opinion is inconsistent with other opinions of this court in similar situations. This court decided in Wiser Oil Company v. Conley, Ky., 346 S.W.2d 718 (1960), that the owner of oil and gas rights had no right to use the water-flooding method of recovering oil without the consent of the owner of the surface. This court said in Wiser at page 721:
“Even though appellants assert that the water-flooding process was known prior to March 10, 1917, the date of execution of the lease, and was employed to some extent in other states before that time, we conclude it was the intention of the parties that oil should be produced by drilling in the customary manner that prevailed when the lease was executed. Any *402exemption from liability would therefore be limited to the damages which might be caused by this contemplated means of bringing oil to the top.” (Emphasis added.)
Wiser and Buchanan are as inconsistent as sin and salvation.
I am shocked and appalled that the court of last resort in the beautiful state of Kentucky would ignore the logic and reasoning of the great majority of other states and lend its approval and encouragement to the diabolical devastation and destruction of a large part of the surface of this fair state without compensation to the owners thereof.
Following is a list of some of the cases from six other states that take a view contrary to the majority opinion in the present case. Franklin v. Callicoat, Ohio Com.Pl., 68 Ohio Law Abst. 67, 119 N.E.2d 688; East Ohio Gas Company v. James Brothers Coal Company, Ohio Com.Pl., 85 N.E.2d 816, 53 Ohio Law Abst. 438; Williams v. Hay, 120 Pa. 485, 14 A. 379; Livingston v. Moingona Coal Company, 49 Iowa 369, 31 Am.Rep. 150; Catron v. So. Butte Mining Co., 9 Cir., 181 F. 941, 104 C.C.A. 405; Oresta v. Romano Brothers, 137 W.Va. 633, 73 S.E.2d 622; West Virginia-Pittsburgh Coal Company v. Strong, 129 W.Va. 832, 42 S.E.2d 46; Rochez Bros., Inc. v. Duricka, 374 Pa. 262, 97 A.2d 825; Chesapeake & Ohio Railroad Company v. Bailey Production Corporation, D.C., 163 F.Supp. 666; Campbell v. Campbell, 29 Tenn.App. 651, 199 S.W.2d 931; United States v. Polino, 131 F.Supp. 772 (N.D.W.Va.1955); Wilkes-Barre Township School District v. Corgan, 403 Pa. 383, 170 A.2d 97 (1961); Rocky Mountain Fuel Co. v. Heflin, 148 Colo. 415, 366 P.2d 577 (1961); Benton v. United States Manganese Corp., 229 Ark. 181, 313 S.W.2d 839 (1958).
I cannot bring myself to the conclusion that it was the intention of the parties at the time the minerals were reserved to permit the owner of the minerals to completely destroy the surface of the farm which is now owned by the defendants.
I confess I .think strip mining without proper reclamation procedures is a catastrophe. I consider it against public policy and detrimental to the general welfare of the state, and any contract pertaining thereto is illegal as being against public policy. Of course, where the land is not steep and proper reclamation practices are followed, strip mining may be justified.
The public policy of the state of Kentucky was accurately expressed by the Legislature in KRS 350.020, from which I quote:
“The General Assembly finds that the unregulated strip mining of coal causes soil erosion, stream pollution, the accumulation of stagnant water and the seepage of contaminated water, increases the likelihood of floods, destroys the value of land for agricultural purposes, counteracts efforts for the conservation of .soil, water and other natural resources, destroys or impairs the property rights of citizens, creates fire hazards, and in general creates hazards dangerous to life and property, so as to constitute an imminent and inordinate peril to the welfare of the Commonwealth.”
I recognize that the regulation of strip mining is not for the courts but for the Legislature. However, I would go further and say as a matter of law that any deed, whether it be “broad form” or otherwise, that attempts to grant strip mining (when the grade is approximately 20 degrees or more) is illegal and unenforcible as against public policy and detrimental to the present and succeeding generations.
I freely recognize and respect the rule of stare decisis, and I oppose changing rules of law without compelling reasons, but it is wrong and unjust to take the position that once judicial error has gained the respectability of age it becomes somehow invulnerable to correction by the court which made it.
*403Although the majority opinion relies upon Buchanan and zealously guards its borders on all sides from every change, modification, or encroachment, I am able to see a ray of hope in Buchanan which is overlooked, ignored, and disregarded by the majority opinion. This ray of hope is contained in the following quotation from Buchanan, supra, 290 S.W.2d at page 43:
“The owner of the mineral has the paramount right to the use of the surface in the prosecution of its business for any purpose of necessity or convenience, unless this power is exercised oppressively, arbitrarily, wantonly, or maliciously, in which event the surface owner may recover for damages so occasioned.”
Webster’s Third New International Dictionary defines “oppressive” thus: “unreasonably burdensome; unjustly severe, rigorous, or harsh.”
I contend that any major destruction of the surface is “unreasonably burdensome; unjustly severe” and “harsh.” But no, the opinion of the majority of this court, as now constituted, would not afford the appellants herein the benefit of the plain and simple meaning of its own precedent. In the interest of consistency, the majority opinion should reform the rule in Buchanan so as to delete the word “oppressive” therefrom and should overrule its opinion in Wiser Oil, then the slate would be clean insofar as the legal status of a few greedy exploiters of the land is concerned.
I would point out that in Buchanan, supra, this court shed great crocodile tears for the coal industry when the opinion said: “To disturb this rule now would create great confusion and much hardship in a segment of an industry that can ill-afford such a blow.” Obviously the court was grieving for the coal industry. Instead of helping the coal industry, the rule in Buchanan really hurt it by helping a few strip and auger operators. It was said in Kentucky Law Journal, volume 50, number 4, page 529 that: “Contrary to the implication of the court’s conclusion, Buchanan helped the holding companies more than the ‘industry.’ ”
With this further compliment, I leave Buchanan to the strip and auger operators. They (the operators) have shown in actual practice such little regard for the justice and fairness of Buchanan that they have not had the heart to take advantage of their legal windfall safeguarded and guaranteed by the rule in Buchanan and have in many cases been compensating the surface owner for “oppressive” damages done the surface owner.
The majority opinion attempts to justify the harsh rule applied in this case by comparing the value of the consideration paid for the mineral to the assessed value of the surface at the date of the deed. This is a poor comparison when it is universally recognized that in this state land values were assessed at 10 to 15 percent of their market value until recently.
I would affirm the judgment of the trial court and go further and hold that the grantee has no legal right to strip or auger mine coal under the deed in qüestion.
MILLIKEN, J., joins in this dissent.