Calvert Joint Venture 140 v. Snider

CATHELL, Judge. This case arises out of a November 1987 land installment contract and subsequent conveyance between petitioner, Calvert Joint Venture # 140, 1 and respondents, Ross and Nancy Snider. In the contract, respondents contracted to convey the subject property (tracts 1, 2 and 3) to petitioner for the stated purpose of building a residential subdivision while reserving an interest in all “oil, gas, or other mineral rights” in the property. No express easements over the surface of the parcel were reserved with the mineral rights.

This litigation centers on petitioner’s declaratory judgment action requesting a determination on respondents’ ability to enter and use the. surface of petitioner’s property in the exercise of respondents’ mineral rights pursuant to a deed emanating from a previous declaratory judgment action dealing with that land installment contract. On November 23, 1987, petitioner contracted to purchase from respondents approximately 145 acres in Calvert County (the “Calvert Property”) pursuant to a land installment contract. That contract included language that the Calvert Property was being purchased by petitioner to develop into a residential subdivision, 2 as well as a provision whereby respon ²⁵ dents reserved the Calvert Property’s mineral rights. In August 1995, a declaratory judgment action 3 was filed by petitioner in the Circuit Court for Calvert County, Maryland, alleging that respondents were unable to convey marketable title on tract 3, approximately 28 acres, of the Calvert Property.

As a result of the declaration originating out of that action, a special warranty deed for tracts 1 and 2, the remaining approximately 115 acres of the Calvert Property, was delivered to petitioner on October 17, 1996, which included respondents’ reservation of mineral rights but failed to include the clause contained in the land installment contract, out of which the declaratory action and deed arose, that had references to the residential development purpose of the original contract. 4 Respondents kept title to, and possession of, tract 3, which abutted on the Calvert Property. Petitioner’s brief to the Court stated: “Appellees retained tract 3 that adjoined tracts 1 and 2” (emphasis added). Respondents do not contradict this statement of petitioners. Moreover, respondents adduced no evidence to the contrary, nor any that sought to quantify the effect of the abutment, adjacency or adjoinment.

It is not easy to discern from looking at the maps and plats in the record the extent of the respondents’ ownership of lands adjacent to the lands at issue. At least some of that type of ²⁶ documentary evidence, standing alone, can certainly be construed as indicating minimal actual physical contact between the properties, i.e., tracts 1, 2 and 3, as depicted on the plat attached to the 1987 contract. However, no issue was raised or evidence adduced by respondents that they did not retain land abutting the subject property through which subsurface access might be possible. At the trial below, accessing the minerals from the adjoining property of the respondents was touched-on in cross-examination of a witness for the petitioners.

Respondents’ counsel: “Why would you buy one [piece of property] that had mineral rights reserved?” Petitioner: “Because it is not inconceivable that any oil and gas that they believe to be under the surface could be extracted without disturbing the surface.” Later petitioner’s representative was asked: Respondents’ counsel: “... .What rights do you think they have?” Petitioner: “They have the right to any income that would be produced by any oil or gas that was removed from underground.” Respondents’ counsel: “So long as that came from — was siphoned off without touching your property.” Petitioner: “They have adjoining property.” Respondents’ counsel: “That may be true and it may not be true, but so long as they don’t come on your property, as long as they can somehow magically get these minerals from outside your property, they can get to it. Is that what you are saying?” Petitioner: “Yes.” No evidence contrary to the testimony of this witness was presented by respondents. The evidence proffered by petitioner is the only evidence in the record as to accessibility from the adjoining property. Additionally, in petitioner’s opening argument to this Court, it stated: ²⁷ “He [respondents] has an adjoining piece of property.

He could drill a well, or whatever, to get down to gas, oil on his own property and he could take the substance out from under this property as long as he can do it without interference. That’s a reasonable use of his rights.” Respondents, in their oral argument, as in their brief, never challenged petitioner’s assertions that they owned an abutting parcel of property, and never, at the trial, in their brief to this Court, or in oral argument, posited that any minerals, i.e., coal, gas or oil at issue could not be mined from that abutting property. During respondents’ oral argument, there were additional acknowledgments that respondents retained abutting property. The following occurred: Judge Harrell: “What are your client’s rights with regard to that lot?

Can you just come in there and — ” Respondent’s Counsel: “ — start tearing it up” Judge Harrell: “ — prospect with a test well?” Respondent’s Counsel: “I think the answer to that question is that we have a reasonable right to access the minerals.” 5 Respondent’s Counsel: “I don’t think ... my client can go in and raze the development.” Judge Cathell: “My understanding is when you reserve mineral rights you reserve the right to mine in from the side, but I could be wrong about that.” Respondent’s Counsel: “I would respectfully disagree with that your Honor, but, if it were to be proven that was the least intrusive way to get at the minerals then that would be the most reasonable use.” ²⁸ Judge Wilner: “[Do your clients own] abutting property?” Respondent’s Counsel: “Yes.” Judge Wilner: “So there is the possibility then of using that property to extract?” Respondent’s Counsel: “But, we can’t speak to that possibility.” Judge Cathell: “Because if you owned the abutting property at the time you sold this property, then at that time you had the means available to extract subsurface minerals without going through the surface of the property you had sold away by diagonally drilling or by the way they do it in the coal fields. If later on you sell that adjacent property so that you remove the means ... your client removes the means to mine without disturbing at all the surface of the property you sold.... It has some relevance.” Judge Cathell: “Is the adjacent piece of property [of respondents] for sale?” Respondent’s Counsel: “No. Not that I know of.” Accordingly, as do the parties, we accept that the tracts adjoin and underground access could be made from the property retained by respondents. We resolve the issues on that basis. 6 Subsequently, petitioner requested that respondents sign and execute five plats on December 16,1999, which subdivided the 115 acres of the Calvert Property conveyed to petitioners and other acreage obtained from a third party into 29 lots. ²⁹ The plats also contained language that purported to restrict respondents’ ownership interest in the Calvert Property’s mineral rights to a life interest, limited respondents’ access to the surface of the Calvert Property and subordinated respondents’ mineral rights in the Calvert Property to the use of the surface as a residential subdivision.

After respondents declined to execute the plats because of the conditions contained on the plats, petitioner filed another Complaint for Declaratory Relief and Other Appropriate Relief in the Circuit Court for Montgomery County, Maryland 7 on March 24, 2000. It is this later action that forms the basis for this petition. Petitioner’s complaint included three counts. Count I requested the court to declare the extent to which respondents could use the surface of the Calvert Property it now owned in exercising their rights under the reservation of mineral rights in the deed, the effect of statutes on mining within a residential subdivision and the duration of the mineral rights reservation.

In Count II, petitioner sought reformation of the October 1996 deed, while Count III requested specific performance requiring respondents to sign the five subdivision plats given to respondents in December of 1999. Judge Paul J. McGuckian, for the Circuit Court for Montgomery County, Maryland, issued an Opinion and Order on April 24, 2001, which declared that the deed’s reservation created two distinct interests in the Calvert Property, the surface owned by petitioner and the mineral rights owned by respondents. He additionally stated that these rights must be exercised with due respect as to the other party’s interest. Judge McGuckian also declared that respondents own a fee simple interest in the minerals under the Calvert Property.

Judge McGuckian did not speak to any “[i]ssues relating to the procedure, method, or timing of extraction of the disputed ³⁰ substances upon the surface estate,” and declined to address the relief sought under Counts II and III. Petitioner filed a Motion to Alter or Amend Judgment asking the court to order that respondents not disturb the surface of the land within the Calvert Property where petitioner has subdivided lots, planned roads, designated open space and other features of the intended living environment, and asking the trial court to order that respondents sign the five plats. The trial court denied this motion on June 11, 2001. Petitioner filed a timely appeal to the Court of Special Appeals on June 27, 2001.

On May 3, 2002, the Court of Special Appeals affirmed the trial court’s order and specifically rejected petitioner’s position on the issues of contract reformation and specific performance. Calvert Joint Venture # 140 v. Snider, 144 Md.App. 250 , 797 A.2d 816 (2002). On June 13, 2002, petitioners filed a Petition for Writ of Certiorari with this Court. In that petition, petitioner presented the following three questions: “A. Did the lower court and Court of Special Appeals fail to properly apply the doctrine of subjacent support as stated in Piedmont and George’s Creek Coal Co. v. Kearney, 114 Md. 496 , 79 A. 1013 (1911) in construing the respective rights of the parties under the reservation of mineral rights in the Land Installment Contract and Deed in this case? “B. Under Maryland law, when the intended purpose of the acquisition of land is for subdivision into residential lots for resale and the seller agrees to cooperate in such subdivision process, and the seller fails to reserve in the mineral right reservation the right to utilize the surface for ingress / egress or for extraction of minerals, oil or gas, does the holder of mineral rights have the right to utilize the surface of the land intended to be used for a residential subdivision? ³¹ “C. Was the reservation of mineral rights / oil and gas rights in this case a fee simple or life estate reservation?” On August 22, 2002, we granted the petition to answer these three questions.

Calvert Joint v. Snider, 370 Md. 268 , 805 A.2d 265 (2002). 8 In reference to petitioner’s first question in its Petition for Certiorari, we hold that an owner of mineral rights owes a duty of support to the surface land. We, however, do not perceive that this issue is relevant in this case, except to the extent the “subjacent support” case law can be extrapolated to the issues actually present in the case sub judice. In regard to whether, pursuant to the October 1996 specialty warranty deed, respondents retain the rights of ingress and egress onto the surface of the Calvert Property, ³² we hold that, under the circumstances of this case, respondents cannot use the surface of former Tracts 1 and 2 of the Calvert Property to prospect for or extract any subsurface minerals, oil or gas because of the combination of two factors: 1) any implied reservation as to access to the surface of the residential subdivision for mining would be an unreasonable way to access the minerals because respondents were well aware in 1987 when the land installment contract was executed of the fact that petitioner planned to use the' property for a residential subdivision 9 and the utilization of the surface to conduct mining operations is incompatible with such residential uses; 10 and 2) an implied reservation to use the surface of the Calvert Property was, at the time of the conveyance, unnecessary under these facts as respondents’ rights to extract the oil, gas or other minerals reserved in the deed could be accessed through respondents’ adjacent property, tract 3, which was in possession of respondents at the time of the conveyance of tracts 1 and 2 to petitioner. Alternatively, respondents on this record failed to meet their burden of proof with regard to the elements of establishing an implied reservation.

Finally, pursuant to well-established law, we hold that respondents’ reservation of all oil, gas and other mineral rights in this case was a reservation of a perpetual interest. 11 ³³ I. Facts 12 The record reflects that in 1982, respondents purchased a Calvert County, Maryland farm of approximately 145 acres and operated it as a tree farm prior to selling the property in 1987. On November 28, 1987, respondents entered into a land installment contract with petitioner for the sale of approximately 145 acres of the Calvert County farm. The sellers agreed that the petitioner could immediately begin to take all necessary action to create a residential subdivision on 106.248 acres of the parcel. 13 The relevant language of the land installment contract here, stated: “During the life of this contract the Sellers agree on the 106.248 parcel only to sign applications required to plat and record the property as a subdivision in accord with and record same, provided that all expenses incurred therewith will be paid in whole by the Buyers. Buyers may begin the subdivision process at anytime during the life of the land sales contract. “The Sellers reserve all oil, gas, and other mineral rights.

Sellers also reserve in connection with the oil, gas or other mineral reservations the right to execute leases or other documents relating to production of oil, gas, and other ³⁴ minerals upon such terms and conditions as are acceptable to Sellers, (the Grantors)” [Emphasis added.] There was no express reservation by the grantors/respondents of an easement in respect to access over or through the surface of the Calvert Property. Such a right, if it was intended to be reserved, could have, and under the circumstances of this case, should have, been included, but was not. 14 Respondents agreed, in 1990, to sign papers necessary to begin the residential subdivision process, agreed “to cooperate in the subdivision process” for all of the acreage of the Calvert Property. However, during the process of dividing the Calvert Property for use as residential lots, a dispute arose between petitioner and respondents. In August 1995, petitioner filed a complaint for declaratory judgment against respondents in the Circuit Court for Calvert County, alleging that respondents were unable to convey marketable title on tract 3, part of the approximately 145 acres described in the land installment contract of 1987.

Petitioner sought a declaration as to the price of the remaining parcels, reformation of the contract and specific performance. Mineral rights issues were not litigated at this time. On February 12, 1996, the trial court set the sale price of the remaining land at $345,642.00 and ordered the land installment contract not to be otherwise modified. Pursuant to that court order, respondents executed a special warranty deed on tracts 1 and 2 to petitioner on October 17, 1996.

The deed was properly recorded on May 30,1997. The deed, in relevant part, stated: “SUBJECT TO Grantor’s reservation of all oil, gas or other mineral rights in and to the aforesaid property; Grantor also reserves in connection with the oil, gas or other mineral reservations, the right to execute leases or other documents relating to the production of oil, gas and other minerals ³⁵ upon such terms and conditions as are acceptable to Grant- or.” Respondents apparently retained title to tract 3, which adjoins the lands conveyed by this deed, tracts 1 and 2. The special warranty deed made express references to the land installment contract, including: “WHEREAS, the parties hereto are the same parties to that certain land installment contract, dated November 22, 1987 ... (called herein the ‘contract’), and.... ” It made no express mention of the provisions contained in the land installment contract, which related to the residential subdivision purpose of the sale.

In December of 1999, petitioner submitted a group of five final subdivision plats to respondents to sign. Respondents refused to sign the plats due to some of the language contained on them. The plats each included the following: “WE, ROSS R. SNIDER AND NANCY J. SNIDER [respondents], OWNERS OF ‘ALL OIL, GAS OR OTHER MINERAL RIGHTS IN AND TO THE AFORESAID PROPERTY’ TOGETHER WITH ‘THE RIGHT TO EXECUTE LEASES OR OTHER DOCUMENTS RELATING TO THE PRODUCTION OF OIL, GAS OR OTHER MINERALS, UPON SUCH TERMS AND CONDITIONS AS ARE ACCEPTABLE TO SELLERS’ (ROSS R. SNIDER AND NANCY J. SNIDER [respondents]), BY VIRTUE OF THE RESERVATION OF THE SAME CONTAINED IN THE DEED DATED OCTOBER 17, 1996 AND RECORDED MAY 30, 1997 IN ... THE LAND RECORDS OF CALVERT COUNTY, MARYLAND, JOIN IN THIS PLAT FOR THE PURPOSES STATED ABOVE AND TO CONFIRM SAID OWNERSHIP IN THEMSELVES FOR THEIR LIFETIME AND NO LONGER AND TO CONFIRM THEIR RIGHT TO PROSPECT, MINE AND OPERATE IN AND UNDER THE LAND FOR OIL, GAS OR OTHER MINERALS, BY ANY AND ALL SUBTERRANEAN MINING METHODS THAT ARE PERMISSIBLE UNDER THE CURRENT COUNTY AND STATE REGULATIONS AND WILL NOT INTERFERE WITH THE USE OF THE SURFACE OF THE LAND AS A ³⁶ RESIDENTIAL SUBDIVISION.

ROSS R. SNIDER AND NANCY J. SNIDER [respondents] ACKNOWLEDGE THAT SAID RIGHTS ARE SUBORDINATE TO THE USE OF THE PROPERTY AS A RESIDENTIAL SUBDIVISION AND THAT THEY RESERVED NO RIGHT OF INGRESS TO AND ON AND EGRESS FROM THE SURFACE OF THE LAND FOR THE PURPOSE OF PROSPECTING, MINING, DRILLING WELLS AND OPERATING BENEATH THE SURFACE AND EXTRACTING AND REMOVING OIL, GAS OR OTHER MINERALS FROM BELOW THE SURFACE OF THE LAND. ROSS R. SNIDER AND NANCY J. SNIDER [respondents] ARE NOT RELEASED FROM ANY LIABILITY FOR DAMAGES OF ANY NATURE THAT MAY BE SUFFERED BY THE OWNERS OF THE SURFACE OF THE LAND OR ANY IMPROVEMENTS ON THE SURFACE NOW OR HEREAFTER ERECTED BY REASON OF DRILLING, BLASTING OR MINING OUT OR REMOVAL IN WHOLE OR IN PART OF ANY OIL, GAS OR OTHER MINERALS FROM UNDER THE SURFACE.” [Alterations added.][Emphasis added.] The parties stipulated below that respondents, as owners of the mineral rights to the Calvert Property, are not required by the law relating to recording plats, to sign the plats or participate in the recordation process in order for petitioner to record the plats in Calvert County. In fact, petitioner testified that it received its subdivision approval without respondents’ signatures on the plats and that they have already been recorded in Calvert County. As a result of the respondents’ refusal to sign the plats which would subordinate respondents’ rights to extract minerals, petitioner testified that its interest in the Calvert Property has been rendered unmarketable, 15 leading petitioner to file ³⁷ this second declaratory judgment action in the Circuit Court for Montgomery County, Maryland.

II

Discussion This appeal involves the relationship between the rights of the owners of property and the owners of any minerals lying beneath the same piece of land. The focus of the appeal leads this Court to an issue that we have yet to directly resolve: the implied reservation, if any, of an owner of subsurface mineral rights to enter and use the surface of the property to prospect for and/or gain access to those minerals. We hold, that while, generally, such an implied easement by reservation may be found to exist, under the deed and circumstances in this case, where respondents reserved mineral rights without language allowing them ingress/egress access to the surface of the land, knowing the land was to be used as a residential subdivision, and at the time of the conveyance, respondents owned adjacent property from which they might exercise their right to any minerals under the Calvert Property, no easement, implied or otherwise, exists to use the surface of the Calvert Property to explore for or extract the minerals underneath said property. 16 In any event, respondents failed to meet their burden to establish the elements, necessary to support such an implied reservation. In addition, we shall discuss to some extent subjacent support.

Finally, respondents’ express reservation of mineral rights was sufficient to create a perpetual interest in the mineral rights underlying the subject tract. ³⁸ A. Mineral Rights Reservation This Court has very recently set out the standard for construing deeds in County Commissioners of Charles County v. St. Charles Associates Limited Partnership, 366 Md. 426, 463 , 784 A.2d 545, 566-67 (2001), when we said: “The case law setting forth the general rules of construction of deeds affirms that, ‘the court should take into consideration the language employed, the subject matter, and surrounding circumstances,’ essentially the deed as a whole. Weiprecht v. Gill, 191 Md. 478, 484-85 , 62 A.2d 253, 254-55 (1948); see generally Neavitt v. Lightner, 155 Md. 365 , 142 A. 109 (1928); Brown v. Reeder, 108 Md. 653 , 71 A. 417 (1908). Likewise, there is an equal abundance of Maryland case law directing the Court to strongly consider the intention of the parties.” [Some citations omitted.] Earlier, in Chevy Chase Land Company v. United States, 355 Md. 110,123 , 733 A.2d 1055, 1062 (1999), we said: “In construing a deed, we apply the principles of contract interpretation. Buckler v. Davis Sand, Etc., Corp., 221 Md. 532, 537 , 158 A.2d 319, 322 (1960).

These principles require consideration of ‘ “the character of the contract, its purpose, and the facts and circumstances of the parties at the time of execution,” ’ Calomiris v. Woods, 353 Md. 425, 436 , 727 A.2d. 358, 363 (1999)(quoting Pacific Indem. v. Interstate Fire & Cas., 302 Md. 383, 388 , 488 A.2d 486, 488 (1985)). At least initially, the construction of a deed is a legal question for the court, and on appeal, it is subject to de novo review. Calomiris, 353 Md. at 433-35 , 727 A.2d at 362-63 . ‘It is a cardinal rule in the construction of deeds that “the intention of the parties, to be ascertained from the whole contents of-the instrument, must prevail unless it violates some principle of law.” ’ D.C. Transit Systems v. S.R.C., 259 Md. 675, 686 , 270 A.2d 793, 798-99 (1970) (D.C. Transit I) (quoting Marden v. Leimbach, 115 Md., 206, 210 , 80 A. 958, 959 (1911)). Thus, we must consider the deed as a whole, viewing its language in light of the facts and circumstances ³⁹ of the transaction at issue as well as the governing law at the time of conveyance.” In the case sub judice, the language pertaining to the reservation of mineral rights reserves the ownership of the mineral rights underlying the Calvert Property to respondents, but contains no specific language or reference to an express reservation of an easement of ingress/egress for respondents to enter on and penetrate the surface of petitioner’s residential subdivision in order to access the minerals that may be in the subsurface of the property.

The deed is silent as to the surface ingress/egress issue. It necessarily follows that in order for respondents to have access to the surface of the Calvert Property, they must have an implied reservation of such access or an implied easement of necessity to use the surface of that property to explore for and to extract any minerals below. We will separately outline the law in this State for the doctrines before we apply them to the circumstances of this case. 1. Implied Easement Doctrine This Court has broadly defined an easement as a “nonpossessory interest in the real property of another.” Boucher v. Boyer, 301 Md. 679, 688 , 484 A.2d 630, 635 (1984) (citing Condry v. Laurie, 184 Md. 317, 320 , 41 A.2d 66 (1945)).

Easements may be created by express grant or by implication. Shpak v. Oletsky, 280 Md. 355, 360-61 , 373 A.2d 1234 (1977). The Boucher Court said: “An implied easement is based on the presumed intention of the parties at the time of the grant or reservation as disclosed from the surrounding circumstances rather than on the language of the deed. [2 G. Thompson, Commentaries on the Modem Law of Real Property ] § 351, at 287 [(J. Grimes ed.1984)]. As a result, courts often refer to extraneous factors to ascertain the intention of the parties.” Boucher, 301 Md. at 688 , 484 A.2d at 635 (alterations added).

Necessity of an easement is one way in which an implied easement is created. Hancock v. Henderson, 236 Md. 98, 102 , 202 A.2d 599, 601 (1964). Implied easements by necessity ⁴⁰ arise from a presumption that the parties intended that the party needing the easement should have access over the land. Greenwalt v. McCardell, 178 Md. 132, 136 , 12 A.2d 522, 524 (1940).

To better understand the law in respect to implied grants of easements, implied reservations of easements and ways of necessity, it may be helpful to track the treatment of such matters by the Maryland Courts since early in the Court’s history, then continuing into more recent times. .One of the early cases in which we discussed the reservation of implied easements concerned the Charles Carrolls of Carrollton. McTavish v. Carroll, 7 Md. 352 (1855), involved a grant of land by Charles Carroll of Carrollton in 1832 adjacent to a dam and well retained by Carroll. Ultimately, it was held that Carroll’s successor, also a Charles Carroll of Carrollton, had a right, ie., implied easement of necessity to use roads and other parts of the property his predecessor had conveyed, in order to clean out the mill race which fed or drained the mill pond retained. The millhouse, itself, apparently was part of the property the first Carroll had conveyed, ie., gifted.

There we noted: “But we think the privilege of using the dam, race and road, may be sustained upon the principle of legal necessity.” Id. at 359 . Later in Carroll , addressing the English case of Spencer v. Spencer, 2 Iredell’s Law Rep. 95, also a case involving water rights, we quoted from Spencer, in respect to implied ways of necessity by reservation: “so far as can be ascertained from the report, there was nothing to show, unless it be by inference only, that it was not merely convenient, but actually necessary, for the land owned by the defendant to be drained through those ditches.... If so, there was no such necessity before the court as would authorize them to have held, that the defendant was entitled, under an implied reservation, ... to use the ditches.” Id. at 361-62 . We also mentioned in Carroll , another English case, Burr v. Mills, 21 Wend. 290 (1839).

There, at the time the relevant deed of conveyance was executed, a dam had ⁴¹ already been erected that caused water to back up on part of an acre of the land conveyed to the grantee. The grantee’s successor filed suit for damages as a result of the flooding. We noted in Carroll that the Burr court had held that even though the dam was in existence, and water covered the granted land at the time of the conveyance, there was no “implied reservation or exception in favor of the grantor.” Id. at 362 . In concluding our discussion of the cases, we opined in Carroll , quoting Angel on Water Courses, section 165: “ ‘A way of necessity to a water course would be, therefore, limited to the necessity which created it, and when such necessity ceases, the right of way will also cease.’ In the following section the writer treats of the difference between what is necessary, and what is merely convenient, or desirable, and shows that the former is the ruling principle, and not the latter.” Id. at 367 .

In Mitchell v. Seipel, 53 Md. 251 (1880), a grantor conveyed by absolute conveyance a portion of property that contained an alley and did not expressly reserve the right to use the alley in respect to the remainder of the parcel not conveyed. The land not conveyed could be accessed without the utilization of the alley. We first noted that: “While the unity of possession thus continued, it is very clear no easement in respect to this alley existed. A party cannot have an easement in his own land.” Id. at 263 .

We then noted: “But the question here is, whether upon such a grant, the law will engraft a reservation of such easements in favor of the part retained by the grantor----It has often been cited ... [that] the doctrine of implied reservation stands upon exactly the same footing as the doctrine of implied grant, but in so far as it may be thought to sustain that position, we have high authority of THESIGER, L.J., who delivered the judgment of the Court of Appeals in Wheeldon v. Burrows, 12 Ch. Div. 31, for the statement that it has again and again been overruled.... ⁴² “... In an able and extended opinion delivered by THESIGER., L.J., all the leading English decisions are reviewed, and as a result of this review two propositions are stated: First, that all these continuous or apparent easements, or in other words all these easements are necessary to the reasonable enjoyment of the premises granted, and which have been and are at the time of the grant used by the owner of the entirety for the benefit of the part granted, mil pass to the grantee under the grant. Second, that if the grantor intends to reserve any right over the tenement granted it is his duty to reserve it expressly in the grant, and to this the only exception is of ways or easements of necessity.

Both these general rules are founded upon the maxim that ‘a grantor shall not derogate from his grant----’ By these recent decisions the doctrine of implied reservation in such cases of all such easements as are mentioned in the first proposition, is utterly repudiated.... “Such is the present state of English authority upon this question, and the law in that country seems at last to be placed upon a reasonable and solid foundation.... “Finding then no binding decision of this Court ... to prevent us from following the law ... [of] the decisions in England ... we shall apply it to the case before us. “It remains then to ascertain whether this alley is a way of necessity, so as to fall within the exception to the second proposition [above].... ‘It appears at the time of the grant in respect of which the right of way is claimed, there was a way from the house into the garden, and that way now exists. But it is said that the way now claimed is more convenient than the other. Then comes the question whether the plaintiff can claim it as a way of necessity.... There is no foundation whatever for such a doctrine.’ Whether it is a way of necessity or not, must depend upon the state of things existing at the date of the deed in 1865, and not with ⁴³ reference to the changes subsequently made by the plaintiff on his own premises.” Id. at 264-75 (some citations omitted) (alterations added).

We reiterated in Burns v. Gallagher, 62 Md. 462, 471-72 (1884), a case concerning access to an outdoor privy, that: “For the principle is well settled, and it is founded in reason and good sense, that no easement or quasi easement can be taken as reserved by implication, unless it be defacto annexed and in use at the time of the grant, and it be shown moreover to be actually necessary to the enjoyment of the estate or parcel retained by the grantor. And such necessity cannot be deemed to exist if a similar way or easement may be secured by reasonable trouble and expanse, and especially if the necessary way or easement can be provided through the grantor’s own property.... It is only in cases of the strictest necessity, and where it would not be reasonable to suppose that the parties intended the contrary, that the principle of implied reservation can be invoked.” [Citations omitted.] [Emphasis in original.] We have also explained the difference between an exception and a reservation created by conveyances. 17 In Herbert v. Pue, 72 Md. 307, 310 , 20 A. 182, 183 (1890), the ⁴⁴ language in the conveyance immediately after the grant stated: “Reserving ... for all the descendants of the said Arthur Pue, the use of ... a graveyard.” The language did not “except” the area of the graveyard from the grant. We then noted, quoting from Lord Coke in his Commentaries upon Littleton, 47a: “ ‘a diversity between an exception [in a conveyance] (which is ever part of the thing granted, and of a thing en esse), and a reservation, which is always of a thing not en esse, but newly created or reserved out of the land or tenement demised.’ ” Id. at 311 , 20 A. 182, 183 (alteration added).

See also Lippincott v. Harvey, 72 Md. 572, 578-80 , 19 A. 1041, 1043 (1890) (an early case involving the sale of property to developers who planned to create a subdivision). In Lippincott , the grantor argued that he was possessed of an implied reservation to use the granted property for a certain right of way indicated by a reference to “Sutton avenue” on the plat to which reference was made in the grant. We stated, referring to the grantee where the grantor sought to bind the grantee: “to a servitude which he resists, and insists that he never bought subject to. It is a burdensome and very prejudicial servitude; and, to fasten it on the appellee’s land in favor of the vendors, there should be clearer proof of its unequivocal reservation than we can find in this case. “The rule is laid down in numerous authorities that, where the servitude is a burdensome one, only strict necessity will raise the implication of its reservation. ‘Great convenience is not enough.’ 2 Wait’s Actions and Defences, 668-9-70, and authorities there cited.

Mitchell vs. Seipel, 53 Md. 251 . It would be very convenient, beyond a doubt, for the appellants to have a perpetual right of way and outlet in what is called ‘Sutton avenue’ on the plat; but it is manifestly not a way of necessity.... [T]o grant the prayer of [appellant’s] of their bill would inflict great and lasting injury upon the appellee and bind him to a condition and situation as respects to his lots which he did not contemplate when he purchased.... [T]he appellee [grantee] holds ⁴⁵ the lots he purchased discharged of the claim which the appellants [grantors] have set up.” Id. at 579-80, 19 A. at 1043 (alterations added). See also, Eliason v. Grove, 85 Md. 215, 225 , 36 A. 844 -45 (1897); Tong v. Feldman, 152 Md. 398, 402 , 136 A. 822 -23 (1927) (“The necessity must be imperative and absolute. ‘It is only in cases of the strictest necessity, and where it would not be reasonable to suppose that the parties intended the contrary, that the principle of implied reservation can be invoked.’ ”) (quoting Bu rns v. Gallagher, supra); Hansel v. Collins, 180 Md. 209, 216 , 23 A.2d 686, 690 (1942); Slear v. Jankiewicz, 189 Md. 18, 23-24 , 54 A.2d 137, 139-40 (1947); Dalton v. Real Estate & Imp’v’t Co., 201 Md. 34, 47 , 92 A.2d 585, 591 (1952) (“However, if a grantor intends to reserve any rights or uses in or over the tenement granted, he must reserve them expressly, and the only exception is of easements, including ways, of actual, strict necessity. The reason for the last rule is said to be that a grantor cannot derogate from his grant.”); Mitchell v. Houstle, 217 Md. 259, 264 , 142 A.2d 556, 558 (1958) (“From a very early date, a distinction has been made between an implied grant and an implied reservation, with the rule being much more strict when called upon to create an easement by implied reservation than to create one by implied grant.”).

This Court set out the law of implied easements more recently and more completely in Shpak, 280 Md. at 361 , 373 A.2d at 1238 , when, citing to some of the cases above, we stated: “ ‘Ways by necessity are a special class of implied grants and have been recognized in this State for a good many years.’ [quoting Henderson, 236 Md. at 102 , 202 A.2d at 601 .] There are two types of ways of necessity, implied reservation and implied grant. If a reservation is not expressly made ‘in the deed, it must be shown that there is a necessity for its use by the property retained over the property conveyed.’ Hansel v. Collins, 180 Md. 209, 216 , 23 A.2d 686 (1942). To similar effect relative to necessity, sometimes referred to as necessary to be ‘imperative and absolute,’ see Condry v. Laurie, 184 Md. 317, 322 , 41 A.2d ⁴⁶ 66 (1945); Tong v. Feldman, 152 Md. 398, 402 , 136 A. 822 (1927); Jay v. Michael, supra, 92 Md. at 210, 48 A. 61 ; Burns v. Gallagher, 62 Md. 462, 472 (1884); and 2 G. Thompson, Commentaries on the Modern Law of Real Property § 353 (J. Grimes ed. 1961).... An easement by implied reservation must arise at a time when there is unity of title.

Hansel v. Collins, supra, 180 Md. at 216 , 23 A.2d 686 .... “ ‘[G]rants of easements by implication are looked upon with jealousy and are construed with strictness by the courts.’ Condry v. Laurie, supra, 184 Md. at 321 , 41 A.2d 66 . ‘The rule with respect to implied reservations is much more strict than that with respect to implied grants.’ Slear v. Jankiewicz, supra, 189 Md. at 22 , 54 A.2d 137 , quoting Hansel v. Collins, supra, 180 Md. at 215 , 23 A.2d 686 .” [Some Citations omitted.] [Some alterations added.][Emphasis added.] In the case of Hansel v. Collins, supra, this Court found that there was no necessity of circumstances for an implied easement to be created. We said: “ ‘For the principle is well settled, and it is founded in reason and good sense, that no easement or quasi easement can be taken as reserved by implication, unless it be defacto annexed and in use at the time of the grant, and it be shown moreover to be actually necessary to the enjoyment of the estate or parcel retained by the grantor. And such necessity cannot be deemed to exist if a similar way or easement may be secured by reasonable trouble and expense, and especially not if the necessary way or easement can be provided through the grantor’s own property. In order to give rise to the presumption of a reservation of an existing easement or quasi easement, where the deed is silent upon the subject, the necessity must be of such strict nature as to leave no room for doubt of the intention of the parties that the adjoining properties should continue to be used and enjoyed....

If the grantor intends to reserve any right or easement over the property granted, it should be done by express terms.... It is only ⁴⁷ in cases of the strictest necessity, and where it would not he reasonable to suppose that the parties intended the contrary, that the principle of implied reservation can be invoked” [quoting Burns v. Gallagher, 62 Md. 462, 471-72 (1884)] ... “It will be observed that the reservation must be made at a time when there is unity of title, and if not expressly reserved in the deed, it must be shown that there is a necessity for its use by the property retained over the property conveyed. Several of these factors are missing in the present instance.... The property retained ... was not dependant upon appellants’ property ... for its water.

There was no question of necessity, and it cannot be presumed under the circumstances that, having given an absolute deed, the grantors intended to reserve any rights over the property granted.” Hansel , at 215-16, 23 A.2d at 689-90 (alteration added) (emphasis added). See also Beck v. Mangels, 100 Md.App. 144, 158 , 640 A.2d 236, 243 (1994); Markey v. Wolf, 92 Md.App. 137, 158 , 607 A.2d 82, 93 (1992) (involving the reservation of the right to alter covenants). 2. Mineral Rights Doctrine Before we apply the doctrine of implied easements to the case at bar, we shall discuss this State’s law with respect to the relationship, generally, between the owners of mineral rights and the owners of the property subject to a severance of mineral rights, and thus explain the interplay of the doctrine of mineral rights law with that of the doctrine of implied easements by reservation. Because this Court has never specifically addressed many of the issues stemming from the separation of the mineral rights from an estate, we also look to the law from our sister states, as well as our own case law regarding subjacent support rights, in ascertaining the ultimate state of mineral rights law in Maryland.

In essence, we hold that the type of conveyance utilized here gave the right to extract the subsurface minerals to respondents and gave to petitioners the title to the entire property, ⁴⁸ subject, however, to the rights of respondent to extract subsurface minerals from the property. Two separate, coexisting interests are created in the property. In addition, we agree with a majority of our sister states’ courts in holding that, where warranted by the circumstances, a reservation of subsurface mineral rights may, under appropriate circumstances, carry with it an implied easement to utilize the surface, where,, at the time of the conveyance, a necessity for such an easement under the circumstances of a particular case exists to utilize such surface of the property to access those minerals and where, at the time of the conveyance, such a reservation of an implied easement would not be in conflict with the known intended future uses of the whole property being conveyed. Lastly, while we reaffirm our long-held doctrine of subjacent support, we do not agree with petitioner’s contention that it is determinative in the case at bar.

We first discussed the rights of mineral owners nearly 100 years ago in the case of Piedmont and George’s Creek Coal Company v. Kearney, 114 Md. 496 , 79 A. 1013 (1911). In that case we opined: “The general rule of law is that when the estate in minerals ‘in place,’ as they are sometimes spoken of in their natural bed, is severed from the estate in the surface, the owner of the latter has an undoubted right of subjacent support for the surface, and the owner of the estate in the minerals is entitled to remove only so much of them as he can take without injury to the surface, unless otherwise authorized by contract or statute.” Id. at 501 , 79 A. at 1015 . While not affirmatively articulating it as a rule of law, this Court’s use of language of “severed from the estate,” as opposed to “excepting” from the grant, in reference to the minerals rights in that case recognizes that a reservation of mineral rights by a grantor creates two independent, distinct and co-existing interests in one parcel of land; one in the whole property subject to a reservation of mineral rights and one in the minerals beneath the surface of the land. 18 The former is often described as the surface ⁴⁹ estate, although it is in reality the whole estate “subject to” the mineral rights. The latter is often referred to as the subsurface estate, although, as to the subsurface, it is only a limited right when reservation, as opposed to “exception” language, such as that contained in the present deed is used. 19 The separation of “estates” (or more accurate, “interests”) in this manner is recognized in other jurisdictions, including the Arizona case law which the Court of Special Appeals relied on in rendering its decision in this case. 20 See, ⁵⁰ Spurlock v. Sante Fe Pacific R.R. Co., 143 Ariz. 469, 478-79 , 694 P.2d 299, 308-09 (1984); see also Watt v. Western Nuclear, Inc., 462 U.S. 36, 50-55 , 103 S.Ct. 2218, 2226-29 , 76 L.Ed.2d 400, 411-15 (1983); Gill v. Colton, 12 F.2d 531 (4th Cir.1926); Maynard v. McHenry, 271 Ky. 642 , 113 S.W.2d 13 , (1938); and Youghiogheny River Coal Co. v. Allegheny Nat’l Bank, 211 Pa. 319 , 60 A. 924 (1905).

In Spurlock , the Arizona Supreme Court stated: “[W]e believe a reservation of ‘all minerals whatsoever’ reflects a general intent of the parties to sever the surface estate from the underlying mineral estate. Maynard v. McHenry, 271 Ky. 642 , 113 S.W.2d 13 (1938). It indicates that the parties intended to create two distinct, coexisting, and individually valuable estates. Thus, the grantor retains ownership of all commercially valuable substances separate from the soil, while the grantee assumes ownership of a surface that has value in its use and enjoyment.” Spurlock, 143 Ariz. at 478 , 694 P.2d at 308 (alteration added).

As can be seen in Spurlock , the grantor “excepted” mineral rights from the conveyance. Respondents in the case sub judice, reserved “all oil, gas or other mineral rights in and to the aforesaid property.” As such, we hold that this reservation created an ownership interest in the minerals in respon ⁵¹ dents, separate and apart from the whole “estate” in the property at issue which belongs to petitioners. 21 Generally, while this State has yet to speak to the issue, once the mineral rights have been reserved (or granted) and the whole estate has been encumbered by the instrument of conveyance, some other states have found that the reservation, conveyance or leasing of mineral rights includes an implied easement for the owner of those rights to ingress, egress, occupy and use the surface of land, as reasonably necessary, lor the purpose of extracting those minerals in the absence of specific language granting those rights. 22 See generally, Norken Corp. v. McGahan, 823 P.2d 622, 628 , 628 n. 6 (Alaska 1991) (not applying the “universal recognition” of an owner of mineral rights to use the surface to obtain said minerals where alternate access to the land was not at issue and when the substance concerned is neither a mineral, nor was a substance intended to be removed in the lease); Spurlock, 143 Ariz. at 479 , 694 P.2d at 309 (stating, in a case concerning a deed with a comprehensive mining reservation, including the right to enter, mine and use the surface, that it is logical that a surface owner would agree to a reasonable burden or some surface destruction on his estate by the mineral rights owners in order for the latter to access his estate); Gerrity Oil & Gas Corp. v. Magness, 946 P.2d 913, 927 (Colo.1997) (stating, in a case concerning an oil lessee’s excessive and unreasonable use of the surface where the lessee had no other access and in ⁵² reference to access to the superjacent surface, “the right of access to the mineral estate is in the nature of an implied easement, since it entitles the holder to a limited right to use the land in order to reach and extract the minerals”); Crawford v. Hrabe, 44 P.3d 442, 447 (Kan.2002) (which involved an oil lease that expressly granted use of the surface property, the court noted the proposition that, while not determinative in that case, an owner or lessor of mineral rights had an implied right to make a reasonable use of the surface); Bonner v. Oklahoma Rock Corp., 863 P.2d 1176 , 1183 n. 32 (Okla.1993) (noting although not at issue in that case, that for mineral rights owners, “the right of ingress and egress for development is now implied in both grants and reservations”); Melton v. Sneed, 188 Okla. 388 , 109 P.2d 509 (1940) (although the facts are not clear as to alternate access and the necessity to enter and use the surface property, stating that the right of entry accompanies a grant of mineral rights); Robinson v. Robbins Petroleum Corp., 501 S.W.2d 865, 867 (Tex.1973) (stating an ownership in mineral rights “carries with it the right to use the surface, including water, to the extent reasonably necessary to develop and produce the minerals” in a case awarding damages to the surface owner for the mineral rights owner’s unreasonable use of the surface where there was no proof of the necessity of that use); Flying Diamond Oil Corp. v. Newton Sheep Co., 776 P.2d 618, 625-26 (Utah 1989) (recognizing that a mineral owner has an implied easement of ingress/egress over the surface of the land if “reasonably necessary” in a case where the mineral rights owner contracted for broad surface rights in order to facilitate exploration and production of the minerals); Flying Diamond Corp. v. Rust, 551 P.2d 509, 511 , 511 n. 1 (Utah 1976) (approving of, and citing to treatises on the general rule “approved by all jurisdictions that have considered