I do not concur in the holding of the majority that the order of the trial court, sustaining defendant's demurrer to plaintiff's bill, should be affirmed; but I concur *Page 845 in certain holdings as they are expressed in the majority opinion:
(a) I agree that under Chapter 26, Acts of the Legislature, 1941, Michie's Code, 1943, Article 13, Chapter 55, the sole office of a declaratory judgment proceeding is to declare the law on facts presented. After the declaratory judgment or decree is entered, further relief may be obtained by filing a petition, in any court having jurisdiction to grant the relief sought. Section 8, Chapter 26, aforesaid. While such petition may be filed in the same court as that which entered the judgment or decree in the declaratory judgment proceeding, any other court, having jurisdiction of the dispute, may entertain the same. This, to my mind, clearly indicates that the primary declaratory judgment proceeding, and the proceedings on petition for further relief, based on the judgment or decree in the first proceeding, are separate and distinct, and cannot be joined in one proceeding. I do not believe, however, that the joining of these two grounds for relief in one suit calls for the dismissal of the bill or petition, on demurrer. At the most, the matter affecting the further relief prayed for should be eliminated, and the proceeding confined to questions bearing on the declaration of law prayed for.
(b) Then, I agree with the majority that it is difficult to understand why it is necessary to occupy and use 22.6 acres of land to remove the coal underlying approximately 8 acres above the level of the Pittsburgh No. 8 vein. It may be that, under the deed from Boyd to Lewis and Finley, dated May 31, 1904, the plaintiff is entitled only to pay for and take title to approximately 8 acres. That restriction, however, can be enforced by the decree entered on final hearing, and, in my opinion, is not ground for sustaining the demurrer to the bill. This is a matter which can and should be determined on a full hearing of the proceeding.
(c) I agree, too, that no question of public policy is here Involved. Damage to land arising from strip mining *Page 846 is so well recognized, that the Legislature, on more than one occasion, has taken cognizance thereof, and imposed regulations and restrictions on that business. That it has done so, is an implied recognition that the business, under the regulations and restrictions aforesaid, is lawful. In this situation, we should not hold it unlawful as violating public policy.
My agreement with the majority opinion goes no farther. I do not subscribe to the holding that the rule against perpetuities is here involved. The majority holding, as I understand it, is based entirely on the theory that the clause in the deed from Boyd to Lewis and Finley, which reads:
"All of the surface of the said land occupied or used by the said parties of the second part, or their assigns, above the level of the Pittsburg # 8 vein of coal, for their operations herein shall be paid for before the same shall be so used, or occupied, at the rate of One Hundred Dollars per acre, and said party of the first part, his heirs or assigns shall execute and deliver a deed therefor, in fee simple, free from liens and incumbrances, when said surfaces shall be taken and paid for."
constitutes an option to purchase the surface of the land above the level of the Pittsburgh No. 8 vein of coal. If that holding be correct, then I agree that the cases of London and SouthWestern Ry. Co. v. Gomm, 20 L. R. Chancery Division, 562;Barton v. Thaw, 246 Pa. 348, 92 A. 312; Starcher Bros. v. Duty,61 W. Va. 373, 56 S.E. 524; Woodall v. Bruen, 76 W. Va. 193,85 S.E. 170, sustain the majority position. I do not believe that Post v. Bailey, 110 W. Va. 504, 159 S.E. 524, sustains that position, although in that case the use only, and not the ownership of the surface, was involved.
In my opinion, the provision of the Boyd-Lewis deed quoted above does not contain any of the elements of an option. The deed conveyed the coal absolutely, with mining rights which permitted the grantees to enter upon and under said land and to remove all of said coal, without any requirement for subjacent support. But for *Page 847 the clause above quoted, this gave the grantee the right to remove all the coal conveyed without restrictions, and the use of the land overlying the same. Griffin v. Fairmont Coal Co.,59 W. Va. 480, 53 S.E. 24; Simmers v. Star Coal Coke Co.,113 W. Va. 309, 167 S.E. 737. The deed conveyed mining rights in general terms, but, in a paragraph immediately following the clause of the deed granting these rights, imposed a condition upon the right to occupy and use the surface of the land "above the level of the Pittsburg # 8 vein for their operations herein", by requiring the grantee to pay for grantor one hundred dollars an acre for such land so occupied and used. Then follows this language: "* * * and said party of the first part, his heirs or assigns shall execute and deliver a deed therefor, in fee simple, free from liens and incumbrances, when said surface shall be taken and paid for."
Far from being an option, the payment of $100.00 an acre amounted to an express requirement which the grantees had to meet before they could occupy and use any of the surface in removing the Pittsburgh No. 8 vein of coal, which they had purchased and paid for. It is reasonable to assume that they could not have removed said vein of coal without occupying and using at least a part of the overlying surface. Clearly, under the deed, when the grantees paid the $100.00 per acre required, they had the right to remove the Pittsburgh No. 8 vein, independent of their right to a conveyance of the surface occupied and used in such removal. This being true, there is no real connection between the right to remove the coal, by any practical method, and the right to demand a conveyance of the surface here involved. In my opinion, the bill sets up good grounds for the specific performance prayed for; but I do not believe the declaration of law to that effect is necessary to sustain the right of plaintiff to remove the Pittsburgh No. 8 vein, when it has paid the $100.00 per acre for the surface of the land it proposes to occupy and use. *Page 848
I do not know what mining practices the parties to the Boyd-Lewis deed of May, 1904, had in mind. I assume that the purchase and sale, evidenced by the said deed, were the result of fair bargaining. I do not know what it was that gave rise to the required payment of $100.00 per acre; but it is fair to assume that the Pittsburgh No. 8 vein of coal is high in the hills, as it has to be to make it susceptible to strip mining, and that the mining of that coal by any other method would leave the surface of no practical value. If the usual method of mining were followed, the surface would probably subside; hence the provision that requires the grantees to pay to grantor what appears to be the full value of said surface. It may be that the parties did not, at that time, contemplate that the Pittsburgh No. 8 vein would be removed by strip mining; but they evidently contemplated that said vein of coal would be removed; and that after removal the overlying surface would be of little or no value. Therefore, to protect the owner of the surface, the provision for payment aforesaid was made a part of the deed conveying the coal.
Whatever may have been in the minds of the parties to the 1904 deed, in respect to strip mining, it is not, in my opinion, a safe rule to place obstructions in the way of the business and mechanical developments of the present age. Progress and development, along any line of endeavor, are necessary to the future of our productive and commercial life. An enterprise which stands still, is, sooner or later, due for liquidation. That modern mechanical and motor power developments have made strip mining more practical than in former years, and more practiced, cannot be said to be an unmixed evil. When practiced under the regulations prescribed by the Legislature, the evil consequences are minimized to some extent, and there is made available fuel which might not otherwise be produced. We may assume that any such operations, on the property here involved, will be conducted in accord with statutory requirements. We can safely intrust to public authorities, the duty of *Page 849 enforcing the statutory requirements in respect to strip mining.
In what I have written, I do not mean to say that plaintiff should, in all events, be permitted to remove the Pittsburgh No. 8 vein of coal here involved by strip mining. If plaintiff is entitled to the conveyance of the surface aforesaid, then it would seem to be unimportant to defendant what is done with the surface, inasmuch as she will no longer own it. On the other hand, if the coal is to be removed under the general mining rights, after the $100.00 per acre payment is made, then, in my judgment, the right to the use the strip mining method should depend on facts and circumstances. I believe it is common knowledge that strip mining is more injurious to surface than other established methods of mining. There is an old rule, applied in both courts of law and courts of equity, that any granted right must be exercised in a reasonable manner, with decent regard to the interests of the person who grants that right, and so as to do as little damage as possible to persons affected thereby. I believe that rule should be applied to this case. If, as the bill alleges, the coal here involved can be removed only by strip mining, then plaintiff should, after making the payments required, be entitled to use that method; but, if said coal can be removed by the usual mining methods, at a reasonable and non-prohibitive cost, then I do not think plaintiff should be permitted to use the strip mining method. That is a factual question to be determined by the trial court, upon a full hearing of the case.
In the majority opinion, in discussing the 1904 deed, the view is expressed that "it was the manifest intention of the parties to preserve intact the surface of the entire tract", subject to the right to remove the coal by usual mining methods. In my opinion, it is perfectly clear from a study of the deed in question that it was the intent and purpose of the parties to said deed to convey the surface lying above the level of the Pittsburgh No. 8 vein; and that being true, there certainly could not *Page 850 have been an intent to preserve to the grantors that part of the surface, intact or otherwise. The conclusion of the majority is that the agreement to convey the surface is not enforceable, but there can be no question but that an agreement to convey was made, and plainly expressed in the deed.
Of course, the parties to this litigation stand in the shoes of their predecessors in title. On May 31, 1904, Boyd conveyed to Lewis and Finley the coal here involved. Presumably, the parties, in agreeing upon the terms of the deed of that date, knew what they were doing. The grantees in that deed paid the grantor for the coal and mining rights and privileges conveyed, and they and their successors in title have held the same for more than forty years. The agreement, embodied in the deed, was that when, in the operations necessary to the removal of the coal conveyed, it became necessary to occupy and use the surface above the level of the Pittsburgh No. 8 vein of coal, the same should be paid for at the rate of $100.00 per acre. Plaintiff now desires to remove the coal it owns, and offers to pay the $100.00 per acre aforesaid, as required by the 1904 deed. In its bill, it alleges its right to remove said coal by strip mining. The majority opinion, in effect, denies what the 1904 deed expressly granted, namely, the right to removeall the coal then conveyed; for if the coal can be removed only as alleged in the bill, by the single method, strip mining, now sought to be employed, and this Court says that that particular method may not be employed, the right of plaintiff to remove its coal is absolutely destroyed. I can see neither moral nor legal justification for that inescapable result, but that aspect of the case does not appear to have been considered by those who concur in the majority opinion, or, if considered, was not deemed of sufficient importance to merit discussion. As I view the matter, the result reached on this certification denies to plaintiff a hearing on important questions which should be further developed, and which might well determine the true merits of this litigation. In my opinion, *Page 851 the denial of such hearing serves unjustly to deprive plaintiff of valuable property rights, and cannot be successfully defended under any equitable principle of which I have any knowledge. Therefore, I dissent.