J-A30038-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 THE MONONGALIA COUNTY COAL                :   IN THE SUPERIOR COURT OF
 COMPANY                                   :        PENNSYLVANIA
                                           :
                                           :
              v.                           :
                                           :
                                           :
 WEISS WORLD, L.P. AND                     :
 CHRISTOPHER P. WEISS,                     :   No. 962 WDA 2018
                                           :
                    Appellants.            :


               Appeal from the Order Entered, June 15, 2018,
              in the Court of Common Pleas of Greene County,
                    Civil Division at No(s): AD 558-2017.


BEFORE:    SHOGAN, J., KUNSELMAN, J., and STRASSBURGER*, J.

CONCURRING STATEMENT BY KUNSELMAN, J.:                    FILED MAY 07, 2019

      I agree with the majority decision in this case. I write separately to

elaborate further on the legal rights of these parties.

      Since 2013, Mon Coal has owned the coal rights under the Appellants’

109+ acre farm in Greene County. The severance deed, dated October 4,

1911, originally conveyed the coal rights to Mon Coal’s predecessor in interest,

Consolidated Coal, giving it a broad complement of mining rights.      In 2016,

Mon Coal gave Appellants notice of its intent to mine the property.

      In order to begin mining operations, Mon Coal needs to cross Appellant’s

property to construct an air ventilation shaft on adjacent property owned by

Mon Coal. The air shaft must be completed first and is necessary to prevent




____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A30038-18



exposure to methane gas for the health and safety of the underground coal

miners. The air shaft also cannot be constructed without a sediment pond.

      For over 150 years, our property laws have recognized that the holder

of the mineral rights has a dominant estate over the holder of the surface

rights. “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 it is

necessary to carry on … mining operations..”      Tuner v. Reynolds, 23 Pa.

199, 206 (Pa. 1854).

      As against the owner of the surface, each [purchaser of a strata
      beneath the surface] would have the right, without any express
      words of grant for that purpose, to go upon the surface to open a
      way by shaft, or drift, or well, to his underlying estate, and to
      occupy so much of the surface beyond the limits of his shaft, drift,
      or well, as might be necessary to operate his estate, and to
      remove the product thereof. This is a right to be exercised with
      due regard to the owner of the surface, and its exercise will be
      restrained within proper limits by a court of equity, if this becomes
      necessary; but, subject to this limitation, it is a right growing out
      of the contract of sale, the position of the stratum sold, and the
      impossibility of reaching it in any other manner.

Chartiers Block Coal Co. v. Mellon, 152 Pa. 286, 296, 25 A. 597, 598

(1893).

      As the majority points out, under Pennsylvania property law, the mineral

estate is the dominant estate an entrails the right to use as much surface land

as is reasonably necessary to extract minerals. Minard Run Oil Co. v. U.S.

Forest Serv. 670 F.3d 236, 243-44 (3d Cir. 2011), as amended (Mar. 7,

2012). Thus, Mon Coal, as the owner of the mineral rights here, has the right




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to use the surface land in any way it deems “reasonably necessary” to access

the coal on the property.

       Notably, the parties’ relationship is not like an eminent domain action,

where a governmental entity takes private property for public use and must

give fair market value to the owner.           Here, the Coal Company did not have

to give the Appellants anything for reasonable use of the surface area. It

already acquired that right when it purchased the deed to the coal rights. Mon

Col’s prior payment of $5,000 to the Appellants, in my mind, was nothing

more than a gift, an effort to be a good neighbor, if you will. As it stated in

its brief, Mon Coal entered the 2017 easement agreement for the sediment

pond and related facilities “to avoid delay involved in litigation.” Mon Coal

Brief at 7. Accordingly, contrary to Appellant’s position, the 2017 agreement

between the parties did not alter the parties’ respective property rights.

       Mon Coal originally planned to use an access road to the east of

Appellants’ property to construct the air ventilation shaft.         PA DEP since

determined, however, that waivers would be necessary from other property

owners in order to use the planned access road.1            Instead, Mon Coal has

____________________________________________


1 Pennsylvania law allows an owner of an occupied dwelling to deny mining
activities on the surface (including, for example, a ventilation shaft and access
road to the same) if such activities are to occur within 300 feet of the dwelling,
and in this manner, the operator must obtain a written waiver. 25 Pa. Code
§ 77.504 (a)(2). Where an access road is a private, “common use” access
road in existence before the applicable regulations, however, no waivers are
required. Here, no one has suggested that the 300-foot dwelling waiver
applied to the structure on the Appellants’ property that they refer to as a
“dwelling.”

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chosen to use an alternative road across the Appellant’s property. Mon Coal

proposed three different alternatives to Appellants. Appellants rejected the

first two options due to their proximity to the property’s structures. The third

alternative does not traverse near the structures. It will not interfere with the

Appellants use of the structures, and it can be constructed so that it is not

visible from the structures. Additionally, the third alternative access road will

eventually be reclaimed and removed once Mon Coal’s mining operation is

finished.

       Appellants’ contention that they can block Mon Coal from using this

alternative easement to access the adjacent property for construction of the

air ventilation shaft (or seeking additional compensation for such alternative

easement) is entirely without merit. To be sure, our jurisprudence allows the

subsurface owner, in the first instance, to determine what is reasonably

necessary for its mining operation.

       In my opinion, Mon Coal did not need to file this lawsuit to exercise its

rights.2 Our courts have long held that it is the burden of the surface owner

to seek legal redress to prevent or restrain the subsurface owner’s exercise of

its rights. See Chartiers, at 598 (subsurface owner’s exercise of rights “will

be restrained, within proper limits, by a court of equity if this becomes

necessary...”)
____________________________________________


2 I understand why Mon Coal filed the suit in effort to move its mining
operation forward and in an abundance of caution. But, as I will discuss, it
should have been Appellants’ burden to file this lawsuit.


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      The majority correctly disposes of this appeal, but I believe the

Appellants should realize that they had the obligation to file a lawsuit if they

believed Mon Coal was asking for too much, not the other way around. Our

courts have long held, “It is for the surface owner to challenge the

subsurface owner’s reasonable exercise of its rights, not the

converse.”    Belden & Blake Corp., v. Com., Dept. of Conservation and

Natural Resources, 969 A.2d 528, 532 (Pa. 2009) (emphasis added).

      It appears that either Appellants do not want the mining operation to

take place on their property, or they are holding out for additional

compensation. In my opinion, neither is an option.




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