Phillips v. Sipsey Coal Mining Co. , 218 Ala. 296 ( 1928 )

It should be said as to the discharge of débris from other mines of complainant, upon the surface of Phillips' land, that such matter is usually made specific by the stipulation on written contract. The authorities now urged by appellee, as to the right of discharge of such débris, are cited for the first time on rehearing. They were not incorporated in the original brief nor considered by this court. However, the court and parties desire a right construction of the contract, and such is the purpose of the writer of the opinion.

Examining again the whole writing established and construed, it was that of a lease coupled with an interest for the time indicated, and had a triple purpose.

(A) It was primarily for the right of mining Phillips' coal evidenced by lease (1) for the period of 20 years of "all the coal in (workable seams)" under and upon the 339 acres of lands specifically described; (2) for the right of all timber and water upon said land necessary for "the development, working and mining of said coal," and the removal of the same; (3) the right of way for roads "necessary for the convenient transportation of said coal from said lands; and (4) the right to convey and transport "to and from said lands" all material and implements used in mining and removal of said coal or in the preparation of the same for market. These terms had restricted application to the coal taken from said lands specifically described — Phillips' land.

(B) The lease is then given a further field of operation in the contracted right to build all such houses and structures necessary or desirable (1) for the use of employés, (2) for machinery or any business connected with or in any wise appertaining or incidental to the mining of coal, provided the use of said land for agricultural purposes may not be unnecessarily disturbed. In its context, this applied primarily to the use of houses for employés engaged in mining of the Phillips' coal and was so construed by the trial court, and no appeal was taken by the lessee as to this.

(C) The provision for structures and machinery, or any business connected with or in any wise appertaining or incidental to the mining of coal, as tipple, washer, and ways, etc., in its context has a broader application than that merely for the mining of coal from Phillips' land. Its immediate context, relation, and reasonable construction, is, not only as to the mining of coal from Phillips' land, but to the mining of coal "from any and all other lands that may be acquired or used by the lessee, his successors, heirs or assigns, during the mining of coal from any of the (Phillips) lands," or "while the minimum royalty of $50.00 (per month) is paid," as "rent" for the use of said land, after the mining provided for has ceased — "so long as the haulage ways and other improvements constructed (for mining) in, under or upon the same (Phillips' lands) are used (1) in mining or (2) hauling coal from other lands or in any manner incident thereto."

(D) That is to say, the "haulage ways" provided for the use of other lands or coal mining leases that may be acquired, was for "the right to remove" (without further compensation than the $50 per month minimum royalty or rent for the use or lease), over and through the Phillips land, "all coal mined from any and all other lands that may be acquired" during the period of the lease, if the same was not sooner terminated for specified causes. What did "the right of removal" from lands not owned by Phillips embrace? Was that provision in the contract within the rule of latent ambiguity or shading thereof, recognized by the courts as open to construction or reasonable implications? Sadler v. Radcliff, 215 Ala. 499,111 So. 231; Copeland v. Warren, 214 Ala. 150, 107 So. 94; Lowery v. May, 213 Ala. 66, 104 So. 5; Aiken v. McMillan, 213 Ala. 496,506, 106 So. 150.

The annotations and discussion of this question may be found under the subheading of "Right of owner of title to or interest in minerals under one tract to use of surface in connection with mining other tract." 48 A.L.R. 1406 et seq.

If there is ambiguity in respect to the rights secured as to the deposit of débris at the mouth of the mine entry — at the tipple and washer — the necessary machinery and facility appurtenant or incidental to the business of mining different tracts of land, or from other leases, were duly constructed, installed, and employed by the lessee with full knowledge by Phillips. It was only after such installation, and a controversy as to royalties had arisen between the parties, that the right of discharge of the general mine débris on the surface appears to have been controverted by Phillips.

Such right, as that before us, has been the prolific source of litigation in the courts of the United States, Himrod v. Ft. Pitt Min. Mill. Co. (1916) 151 C.C.A. 596, 238 F. 746; Id., 135 C.C.A. 648, 220 F. 80; in California, Dietz v. Mission Transfer Co., 95 Cal. 92, 30 P. 380; Illinois, Leavers v. Cleary, 75 Ill. 349; Consolidated Co. v. Schmisseur, 135 Ill. 371,25 N.E. 795; in Iowa, Peters v. Phillips, 63 Iowa, 550,19 N.W. 662; Madison v. Garfield Coal Co., 114 Iowa, 56,86 N.W. 41; Moore v. Price, 125 Iowa, 353, 101 N.W. 91; in Kentucky, Moore v. Lackey Min. Co., 215 Ky. 71, 284 S.W. 415, 48 A.L.R. 1402; Imperial Elkhorn Coal Co. v. Webb, 190 Ky. 41,225 S.W. 1077; and many cases in Pennsylvania that are illustrated in McCloskey v. Miller, 72 Pa. 151; Webber v. Vogel, 159 Pa. 235,28 A. 226; Potter v. Rend, 201 Pa. 318, 50 A. 821; Cubbage v. Pittsburg Coal Co., 216 Pa. 411, 65 A. 797; Weisfield v. Beale,231 Pa. 39, 79 A. 878; Westerman v. Pennsylvania Salt Mfg. Co.,260 Pa. 140, 103 A. 539, 15 A.L.R. 943; Shaulis v. Quemahoning Creek Coal Co., 262 Pa. 535, 105 A. 826; in Virginia, Clayborn v. Camilla Red Ash Coal Co., 128 Va. 383,105 S.E. 117, 15 A.L.R. 946; in West Virginia, Findley v. Armstrong, 23 W. Va. 113; in England, Dand v. Kingscote, 6 Mees. W. 174; Durham S. R. Co. v. Walker, 2 Q. B. 940; Midgley v. Richardson, 14 Mees. W. 595; Bidder v. North Staffordshire R. Co., L. R. 4 Q. B. Div. 412; and in Scotland, 48 A.L.R. 1408.

Recognizing the effect of such general authorities, the lessee acquiring the right, title, or interest in the mineral in place under the Phillips land, contracted for the use of the passage through Phillips land for transportation or right "to remove" the mineral taken from other lands thereafter to be acquired during the period of the Phillips lease. Clayborn v. Camilla Red Ash Coal Co., 128 Va. 383, 105 S.E. 117, 15 A.L.R. 957. Adverting to the effect of the general authorities from other jurisdictions and cited above, the general rule is thus declared:

"* * * The lessee or grantee of minerals in place, as the owner of the minerals and the space they occupy, to use the gangways and underground passages cut through his own minerals, for the purpose of going to and removing minerals mined from other lands, he has no right, in the absence of agreement, express or necessarily implied, to the use of surface privileges for the purpose of such outside mining operations, inasmuch as the use of surface privileges for such purposes is not ordinarily deemed incidental to the rights granted, nor reasonably necessary to their exercise."

And such is the rule, in the absence of agreement, in Alabama, given expression in Hooper v. Dora Coal Min. Co. (1892) 95 Ala. 235, 10 So. 652; Brasfield v. Burnwell Coal Co. (1912) 180 Ala. 185, 60 So. 382; and the cases of Bagley v. Republic I. S. Co. (1915) 193 Ala. 219, 69 So. 17, and Corona Coal Co. v. Hendon (1922) 208 Ala. 513, 94 So. 527, are not in conflict, as we shall later indicate. As applied to the uses or acts indicated, affecting openings and shafts for the purpose of transportation, in the absence of express or implied agreement, the lessee of minerals has no right to use openings (upon the surface of premises that it has leased) for the taking out of coal from an adjoining land not owned by the lessor, is the holding in Brasfield v. Burnwell Coal Co.,180 Ala. 185, 60 So. 382; and where the grantee of coal in place has ceased to mine the same to an appreciable extent, it is declared that in the "absence of an express grant," he may not use the "openings" thereon for the purpose of transporting coal from the mines in adjacent lands, is the decision in Hooper v. Dora Coal Min. Co., 95 Ala. 235, 10 So. 652. Such is the effect of the general authorities.

Again looking for analogy to the question before us, contained in the Brasfield and Hooper Cases, for the use of "roads and surface ways," as affecting the lessee's use of adjacent lands, in the Brasfield Case, supra, it was held in the absence of agreement express or implied, a lessee of coal has no right to use of tracks upon the leased premises for transportation of coal from adjoining land not owned by the lessor; and in Hooper v. Dora Coal Min. Co., supra, the grantee of coal in place ceasing to mine it to appreciable extent "may not, in the absence of express grant, use the surface privileges for the purpose of transporting coal from mines on adjacent lands" not owned by the lessor. The general authorities are to a like effect.

And, in the examination of these authorities, the right to use, etc., for, or appliances, etc., for the purpose of loading and handling minerals, in Hooper v. Dora Coal Min. Co., 95 Ala. 235,10 So. 652, it is stated that in the absence of express grant (or reservation, as the case may be), the owner of mineral (or mining right) in place (such did Dilworth's contract touch) has no right to use the plant erected on the surface of the land for loading (discharging, etc.) of coal mined on adjacent land, not owned by lessor. In Brasfield v. Burnwell Coal Co., supra, in the absence of agreement, express or implied, the lessee of coal in place has no right to the use of tipples constructed and located upon the leased premises for the purpose of handling coal from adjoining land not owned by the lessor. So, likewise, in the right of installation or use of ventilating shafts and machinery, this court refused to restrain the lessee of mineral rights (on and off complainant's lands) with mining privileges, from using air shafts and fans upon the surface of the leased premises in ventilating the mines under the leased premises and that in adjacent lands connected by underground passage; the additional use in question occasioning no injury to the right of the owner to the surface. We will again refer to the Brasfield and Bagley Cases.

Likewise, in the use of the surface for the purpose of drainage, it was held that in the absence of express reservation or grant, the owner of minerals in place has no right to eject or discharge upon the surface foul water allowed to accumulate in the mines on adjacent lands. Hooper v. Dora Coal Min. Co., supra.

And as to the "other use of the surface," it is held in this jurisdiction as follows:

"* * * That, in the absence of agreement the lessee or grantee of minerals in place does not have the right to the use of 'houses' located upon the surface of the leased or granted premises, in connection with mining operations carried on upon other and adjacent lands. Brasfield v. Burnwell Coal Co. (1912)180 Ala. 185, 60 So. 382; McCloskey v. Miller (1872) 72 Pa. 151.

"And in the absence of agreement, express or implied, the lessee of coal in place has no right to the use of commissaries located upon the leased premises, in connection with mining operations carried on upon other and adjacent lands. Brasfield v. Burnwell Coal Co. (Ala.) supra." 48 A.L.R. 1416.

There are general authorities to support this holding.

From the foregoing it follows:

"While it is generally (though not universally) held that the owner of minerals in place has the implied right to a reasonable use of the surface of the land for dumping or piling refuse from the mine, it is uniformly held that, in the absence of agreement, express or necessarily implied, he has no right to dump upon the surface the refuse from mines upon adjacent tracts." 48 A.L.R. 1414.

That is to say, it held, on this use, by our court, that —

"In the absence of agreement, express or implied, the lessee of a coal mine has no right to dump upon the surface of the leased premises slate and other refuse matter taken from adjoining land not owned by the lessor. Brasfield v. Burnwell Coal Co. (1912) 180 Ala. 185, 60 So. 382. * * * In the absence of express reservation or grant, the owner of minerals in place has no right to dump slate and other obnoxious refuse taken from mines on adjacent lands onto the surface of the land overlying the minerals reserved or granted. Hooper v. Dora Coal Min. Co. (1892) 95 Ala. 235, 10 So. 652." 48 A.L.R. 1414, 1415.

To like effect are many general authorities in 48 A.L.R. 1414, 1415. And provisions of a lease expressly authorizing the dumping of slate taken from the leased premises are no authority to the lessee, "even by implication, to dump slate taken from adjoining land not owned by the lessor. Brasfield v. Burnwell Coal Co. (Ala.) supra."

And it is declared in Hooper v. Dora Coal Mining Co., 95 Ala. 238,239, 240, 10 So. 652, 653, where exhausting subjacent coal mined into adjacent lands:

"It is well settled, that where one person is the owner of the surface, and another of the subjacent minerals, the surface is servient to the mining right as to the occupation and use of so much as may be reasonably necessary for the beneficial and profitable working of the mines. A reservation or grant of the minerals, severed from the ownership of the surface, carries with it the right to penetrate through the surface to the minerals, for the purpose of mining and removing them. This includes the adoption and use of such machinery, methods, appliances and instrumentalities as may be reasonably necessary, and are ordinarily used in such business; and it may be, for the storage of minerals in the first marketable state until they can be transported with due diligence. Williams v. Gibson, 84 Ala. 228 [4 So. 350, 5 Am. St. Rep. 368]. These incidental rights must be exercised with due regard to the rights of the surface-owner, without injury to the right of support for the surface, and without any permanent damage thereto, not necessary for the proper and beneficial enjoyment of the right to mine. It has been said: 'The incidental power would warrant nothing beyond what is strictly necessary for the convenient working of the coal; it would allow no use of the surface, no deposit upon it to a greater extent, or for a longer duration than should be necessary, no attendance upon the land of unnecessary persons.' Cardigan v. Armitage, 2 Barn. Cress. 197. Possibly, under our rulings, the adverb 'strictly' confines the use of the easement within too narrow limits. 'Reasonably necessary' is the language of this court, and we prefer to make no change in a rule which we consider so conservative. Williams v. Gibson, 84 Ala. 228, 232 [4 So. 350, 5 Am. St. Rep. 368]. It does not allow defendant to use the surface for the deposit of slate, or other refuse matter, taken even from the mines underneath. Marvin v. Brewster Iron Mining Co., 55 N.Y. 538, 14 Am. Rep. 322.

"The right to use the surface, implied from the reservation or grant, arises from, and ceases with, the necessity of the case. When all the subjacent ore is dug and removed, and the mine is exhausted, there no longer exists any necessity for the use of the surface. Without an express reservation or grant, the right to use the plant erected on the surface of complainant's land, for the loading and transporting of coal mined on adjacent lands, does not exist. Midgely v. Richardson, 14 M. W. 595. As regards the dumping of slate and other obnoxious substances, and ejecting foul water on complainant's land, the liability of defendant is the same as that of a party who occasions injury to land unconnected with the land in which the mines are worked the same as if he were not owner of the minerals on complainant's land."

In a later case by this court, Bagley v. Republic Iron Steel Co. (1915) 193 Ala. 219, 221, 225, 69 So. 17, 18, an injunction was disallowed that sought to restrain lessee from the mining right of discharging refuse from mines in adjacent property (not owned by lessor) upon the surface of lessor's premises, the mineral right in which was leased to respondent, but only on the ground or for the reason that said practice had been discontinued on request, and there was no threat or danger of its repetition. The court specifically declared:

"So far as the dumping of the refuse from other lands upon the surface of the lands in question is concerned, that feature may be eliminated, for the reason that the agreed statement of facts shows that this was discontinued on request, and that there is no danger of a repetition of the practice. Hence, if damage or injury from this source was sustained, the remedy is complete and adequate at law; and this distinguishes this case from that of Brasfield v. Burnwell Coal Co., 180 Ala. 185,60 So. 382."

And declared generally:

" 'The right of transporting coal from adjoining lands through or over leased land exists, however, only so long as the coal conveyed is in good faith being mined. It would be a perversion of the intention of the parties to use such passageways merely and only for the purpose of reaching other coal, and, besides, such use would be a continual menace to the stability of the surface. If such use were allowed, no owner of the land could tell when his estate would cease to be disturbed by workings underneath. The rule laid down in the above cases is not intended, therefore, to give the grantee of coal an undisputed and perpetual right of way under another's land. The owner of the land above and below has a right to the reversion of the space occupied by the coal within a time contemplated by the parties when that coal is removed. Webber v. Vogel, 189 Pa. 156,42 A. 4; 19 Mor. Min. Rep. 639.

" 'So, when the grantee of coal in place has ceased to mine that coal to any appreciable extent, he may not, without an express grant of such right, extend the openings to the mines to adjacent lands, mine large quantities there, and use the grantor's land for loading and transporting such coal. Hooper v. Dora Coal Min. Co., 95 Ala. 235, 10 So. 652.' "

The quotation from the Bagley Case, supra, and approval of Williams v. Gibson, 84 Ala. 228, 231, 233, 234, 4 So. 350, 352 (5 Am. St. Rep. 368), makes necessary a consideration of that opinion by Mr. Justice Somerville. This was an action of ejectment, and speaking of the rights of the parties, not as to other lands or mining operations thereon, but of the effect or extent of an exception in a conveyance of the surface, "except all the coal and other minerals in, under and upon said land, and also, except all timber and water upon the same, necessary for * * * working and mining of said coal and other minerals" for market, and the removal of the same, "also the right-of-way," etc., "necessary for the convenient transportation of said coal and other minerals, from said land," etc. That is to say, the controversy was between the superjacent and subjacent owners of the land upon which coal was being mined; did not involve mining and disposition of débris from other lands as affecting the rights of the superjacent owner; and the question was: What, if any, surface rights passed to the grantee under the grant of all the coal and other minerals upon or in the land? Mr. Justice Somerville answered as follows:

"The express grant of all the minerals, or mineral rights in a tract of land, is, by necessary implication, the grant also to work them, unless the language of the grant itself repels this construction. This is the result of the familiar maxim that 'when any thing is granted, all the means of obtaining it, and all the fruits and effects of it are also granted.' Shep. Touch. 89; 11 Coke, 52a. This involves the incidental right to penetrate the surface of the soil for the minerals, and to use such means and processes for the purpose of mining and removing them as may be reasonably necessary, in the light of modern inventions, and of the improvements in the arts and sciences, but without injury to the right of support for the surface, or superincumbent soil, in its natural state. Marvin v. Brewster Iron Mining Co., 55 N.Y. 538; s. c. 14 Amer. Rep. 322; Wilms v. Jess (94 Ill. 464); s. c. 34 Amer. Rep. 242; Bainbridge on Mines and Mining, *35, *62, *63. * * *

"It is contended that this incidental right to work the mines on the land is limited by the special grant of certain timber and water privileges, and of the right of way to and from the mines, and that the mention of these privileges, under the maxim expressio unius est exclusio alterius, would rebut the grant of any right to occupy the surface of the soil for miners' houses, or other like purposes. It is often said that great caution is frequently necessary in the application of this maxim, and of its twin legal aphorism of synonymous meaning, expressum facit cessare tacitum. Broom's Legal Max. *506. It is obvious that without the right of surface occupation, to some extent, the grant in question is rendered nugatory. The principle is well settled that one who has the exclusive right to mine coal upon a tract of land has the right of possession even as against the owner of the soil, so far as is reasonably necessary to carry on his mining operations. Turner v. Reynolds, 23 Pen. St. Rep. 199; Rogers v. Taylor, 38 Eng. Law Eq. 574; Tenn. Coosa R. R. Co. v. East Ala. R. R. Co., 75 Ala. 524, 525 [51 Am. Rep. 475]. To construe, away this right would be to construe away the grant itself, which can not be enjoyed without it. It is our opinion that the enumeration of these special privileges was not intended to exclude another which was absolutely necessary to the very life of the grant itself. The right to use timber would not pass by implication. Bainbridge on Mines and Mining, *64. This was, therefore, the acquisition of a new and valuable right. The right of way and water privileges were also more comprehensive possibly than would have been yielded pacifically by mere construction. At any rate these several grants themselves necessarily imply the right to occupy so much of the surface as might be needed to open and work the mines. There could be no use of timber, or water, or right of way, except in connection with working the mines, and there could be no working of the mines without an occupation of the surface in the vicinity of the shafts, slopes, or other requisite openings. These specifications strengthen rather than repel the implication in question. Marvin v. Brewster Iron Mining Co. [55 N.Y. 538] 14 Amer. [Am.] Rep. 329, supra; Bainbridge on Mines and Mining, *34, *35. * * *

"We do not construe the language of the present grant, or reservation as it appears in the deeds of the plaintiff and those under whom he claims, to confer any right by implication, or otherwise, to use the surface of the land for the purpose of erecting coke ovens, designed for the conversion of coal into coke. His only right is to mine and transport coal in its first marketable state. The contract clearly contemplated nothing else. * * *

"The evidence shows that the defendant claimed the right to occupy as much as three acres of the surface of plaintiff's land as incident to his grant. Upon this area he had erected five two-story framed miners' houses; four log cabins for the occupancy of employees; an air-shaft for conveying smoke from and ventilating the mines; a powder house for keeping powder used for blasting; a blacksmith shop; and a storehouse for furnishing the miners with supplies. Which of these improvements are reasonably necessary for the profitable and beneficial working of the mines is a question of fact to be determined from the evidence by the jury."

In this decision consideration was taken of the object and purpose for which the right was acquired, for the express grant of said mineral or mineral rights involved the incidental right to penetrate the surface therefor, to use the reasonable and necessary means and processes to the end in question — to occupy so much of the surface as is ordinarily used in such business and may be reasonably necessary for the profitable and beneficial enjoyment of the property and right in the premises.

In Holt v. City of Montgomery, 212 Ala. 235, 237, 102 So. 49,51, Mr. Justice Gardner cited with approval the case of Williams v. Gibson, supra, saying:

"The right of ingress and egress over the lands of the plaintiff, with a right of way for roads and tracks, expressly granted in the contract, were such rights as would seem to follow by necessary implication from a sale of the gravel in the pit, with the right of the city to remove it therefrom. As said in Williams v. Gibson, supra,

" 'This is the result of the familiar maxim that when anything is granted, all the means of obtaining it and all the fruits and effects of it are also granted.' "

The Williams-Gibson Case did not decide the rights as to operation of mines in adjacent lands through entries and ways in and over leased land.

In Corona Coal Co. v. Thomas, 212 Ala. 56, 59, 101 So. 673,675, the damages were for injury to surface resulting from the conduct of mining operations. Mr. Justice Bouldin declared:

"The liability for damages resulting from a disturbance of the surface by mining operations is absolute. * * * The law is different as to subterranean waters. The miner is not liable for any incidental damages necessarily occasioned by the ordinary and careful operation of his mines, not injurious to the surface, such as the loss of springs or wells fed by subterranean streams. Williams v. Gibson, 84 Ala. 228,4 So. 350, 5 Am. St. Rep. 368; Bagley v. Republic I. S. Co.,193 Ala. 219, 69 So. 17."

In Bibby v. Bunch, 176 Ala. 585, 589, 58 So. 916, 917, Mr. Justice Sayre construed the grant of minerals and the "right to mine is servient to the right of the owner of the surface to have it perpetually sustained in its natural state," citing the Williams-Gibson Case, supra.

Such are the rights of taking mineral granted where the surface is reserved. Sloss-Sheffield S. I. Co. v. Sampson,158 Ala. 590, 594, 48 So. 493. What of the right in mining adjacent lands?

Again, Mr. Justice Sayre says of a mining lease, where the surface is reserved, in Corona Coal Co. v. Hendon, 208 Ala. 513,514, 94 So. 527, citing with approval or affirming the Brasfield Case:

"Defendant's rights having been expressed in the instrument of lease or conveyance, such expression operates as a contractual limit which the court has no right to extend. Brasfield v. Burnwell Coal Co., 180 Ala. 185, 60 So. 382. Nothing to the contrary is said in Bagley v. Republic Iron Steel Co., 193 Ala. 219, 69 So. 17, cited by defendant (appellant)."

We have not departed from the foregoing decisions as to the limitations of the right of the owner of title or interest in minerals under one tract to the use of surface in connection with the mining of other tracts in which the grantor or lessor was not interested.

There is no conflict between Williams v. Gibson, supra, declaring respective rights of mining and those of the surface on the lands of the parties, and the decision prepared by Mr. Justice Clopton in Hooper v. Dora Coal Min. Co., 95 Ala. 235,10 So. 652, declaring the surface rights of the lessor, as affected by lessee's coal mining on adjacent lands not owned by the lessor. In the latter case the acts of the lessee were using complainant's land for loading, carrying, dumping slate, discharge of refuse water, and other liquids and substances taken from the adjacent lands and mines in which complainant-lessor was not an owner. The lease construed in Hooper's Case granted "all coal and other minerals, timber and water necessary" for the removal and making ready for market "said coal," right of way for its transportation, and "material and implements" used in the removal of said coal and other minerals, or in preparation of the same for market. There was no express or necessarily implied use of the surface for such business of mining from or upon adjacent lands.

Adverting again to Brasfield v. Burnwell Coal Co., supra, it is said:

"The lessor, of course, has no right to object to the lessee's going through the Bryan lands, to get to the smaller tract of complainant's land. That is no concern of the lessor. But he certainly has a right to object to the lessee's using the surface of his land in order to mine and market the coal in the Bryan land. He has made no contract to that effect, and it is not claimed that he has ever consented to such use of his lands. He did contract, agree, for the use of the surface of his land, in order to mine the coal in his land, but not to mine coal in other people's land. The lessee has no more right to use the surface of complainant's land for mining the coal from the Bryan land, than he would have to use the surface of the Bryan land for mining coal from the complainant's land. * * *

"It is true that, but for the provision in the lease expressly authorizing the dumping of the slate, the lessee would have no right to so dump it, though it was taken from the leased premises (Hooper v. Dora Co., 95 Ala. 235, 10 So. 652); but the lease in question expressly authorized the dumping of slate taken from the leased premises. But it does not, either expressly or impliedly, authorize the dumping of slate taken from other lands; and probably it was for this reason that the chancellor enjoined the use for dumping purposes. The same reason, however, applies to the other uses of complainant's premises; but for the terms of the lease the lessee would have no right to use plaintiff's surface, for the taking of coal from the land. The lease, however, in terms authorizes it to so use the surface in taking the coal from the leased premises; but it does not expressly or impliedly authorize the use of the surface for taking the coal from other and different lands."

In Jasper Land Co. v. Manchester Saw-Mills, 209 Ala. 446,96 So. 417, opinion by Mr. Justice Sayre, it is declared:

"Mines and minerals * * * — Reservation of minerals with the 'usual rights and privileges of mining' includes right to cut timber used in mining operations.

" 'The usual rights and privileges of mining,' as used in a deed reserving to grantor, such rights and privileges, includes the right or privilege of cutting timber to be used in mining operations." 4th Headnote on lands conveyed.

The question recurs whether, under the lease established and construed, did its provision for the right to build houses and structures, machinery "for the use" of lessee's "business connected with or in any wise appertaining or incidental to the mining of coal," and the further "right to remove without further compensation, over and through said lands, all coal mined from any and all other lands that may be acquired or used by the Lessee, his successors, heirs or assigns, during the mining of coal from any of the lands hereby leased or while the minimum royalty of Fifty Dollars is paid; it being agreed and understood between the parties hereto that the said sum of Fifty Dollars per month shall be the amount of rent to be paid for such use of said lands after the mining provided for has ceased, so long as the haulage ways and other improvements constructed in, under or upon the same are used in mining or hauling coal from other lands or in any manner incident thereto," give the right of discharge, upon the surface at or near the tipple and washer — "in a workmanlike, practical and scientific manner" — of slate rock or other débris or refuse taken from or with coal in its mining on adjacent lands not owned by Phillips and thereafter acquired? Such is the reasonable implication of the right of removal granted without further compensation, over and through said (Phillips') land, of all coal mined from any and all other lands that may be acquired or used by the lessee, his successors or assigns. This accords with the holdings that a grant of all underlying coal, with the privilege of mining and removing through the lands granted, gave the right to the grantee to bring coal from the other land to the surface through the shaft, etc., on the granted premises. Farrar v. Pittsburg Co., 28 Pa. Sup. Ct. 280; Potter v. Rend, 201 Pa. 318, 50 A. 821; Sorg v. Frederick,255 Pa. 617, 100 A. 481; Genet v. Delaware Co., 122 N.Y. 505,25 N.E. 922; Wadsworth Coal Co. v. Silver Creek Co., 40 Ohio St. 559; 48 A.L.R. 1417.

The opinion is modified as to the right of injunction against the workmanlike, practical, and scientific discharge of coal and its preparation for market by washing and such necessary dumping of débris therefrom on the surface at the mouth of the mine. Any other construction of the provisions of the contract, within its shadings of ambiguity, on the question for decision, would render valueless the said contract provisions for the removal of coal mined from other land than that purchased of respondent Phillips. The rules for construction of contracts are well understood and need not be repeated. Greenwood v. Bennett, 208 Ala. 680, 684, 95 So. 159; Denson v. Caddell,201 Ala. 194, 77 So. 720.

In the light of the acquiescence of lessor, Corona Coal Co. v. Hendon, 214 Ala. 139, 106 So. 855, in the construction of the lease in favor of such reasonable use of the surface and the right of discharge thereon, illustrates the earlier purposes and intentions of the parties as to the extent and nature of the use of surface in its practical, reasonable, and workmanlike exercise of the right of removal and discharge at the washer, etc., of débris. Giving due weight to such matters, the rules of law declared to obtain, the practical construction placed on this and other provisions of the contract by the parties, as to the removal and the necessity of discharge of débris upon the surface in the manner indicated, would prohibit the issue of injunction against: (1) The practical, reasonable, and workmanlike deposit and discharge of water and débris, in scientific mining, at the mouth of the mine, necessary and in contemplation of the parties in the preparation for market of coal taken from the lands of Phillips; or (2) against the practical, reasonable, and workmanlike deposit and discharge of such matter upon Phillips' surface at or near the entrance to its mines, taken in scientific mining from its other and subsequently acquired coal lands.

Where there is and has been a bona fide mining of Phillips' coal according to the contract, within the period and life of that lease, Dilworth, or assigns, without other compensation than the payment of the $50 per month "rent," has the "right to move * * * over and through said (Phillips') land all coal mined from" all other land that may be acquired or used by said lessee. Such is the stipulated rent so long as the "haulage ways and other improvements constructed in, under or upon the" said Phillips' land "are used in mining or hauling coal from other lands or in any manner incident thereto," so as not to extend this right beyond the life of the lease and not beyond the expiration of the stipulated term of years.

It may be said that if there has been acquiescence by Phillips or his authorized agent or trustee, in the commingling of his or other coal in railroad cars before weighing, for such period of acquiescence Phillips would be prevented from recovery of royalties as per railroad weights. As to any such acquiescence, the acceptance of royalties at contract price on commingled coal, with a knowledge that contract admeasurements had not been observed, would bind Phillips as to such weights and royalties so paid and accepted by him or his authorized agents. Such acquiescence or estoppel would not obtain against Phillips after the controversy arose, his insistence on his right of admeasurement by railroad weights, and his refusal to continue or further acquiesce and consent in such a disregard of the contract admeasurement. The filing of appropriate pleading as to this unquestionably fixed a time and notice, available to the respective parties, as to the repudiation and discontinuance of the practice of commingling coal from different lands in the railroad car and the destroying of the right of resort to railroad weights in the event of controversy as to the amount of coal mined and royalties due.

The opinion is modified, and the application is overruled. The costs have heretofore been apportioned.

ANDERSON, C. J., and BROWN and FOSTER, JJ., concur.