Department of Forests & Parks v. George's Creek Coal & Land Co.

McWilliams, J., delivered the opinion of the Court. Unless the appellants (the State) and the appellee (the Company 1 ) can come to terms in respect of compensation to the Company for the surrender of its mineral rights, our decision in this case will result in the scarification and uglification of most of the upper eastern face of Big Savage Mountain, one of the lesser glories of Garrett County. The facts, in large part undisputed, are as follows. In 1910 the Company acquired the fee simple title to a tract of land containing 8,621)4 acres known as “Beattys’ Plains,” ¹²⁷ on Big Savage Mountain, near the boundary line between Garrett and Allegany counties.

Some 20 years later it conveyed the tract to McMillen. In the deed there appears an exception and reservation, reading as follows: “Excepting, however, from the operation of this deed, and reserving to the George’s Creek Coal Company, Incorporated, its successors and assigns, all the coal, clay and other minerals, and all the oil and gas underlying said land hereby conveyed, together with the right to enter in, upon and under said land and to mine, excavate and remove all said coal, clay and other minerals, and said oil and gas, and to transport and haul the same to market; and also the right to enter in, upon and under said lands and to transport and haul the coal, clay and other minerals and the oil and gas from other lands and under and over and across said land; and also the right to enter in, upon and under said land and to make, construct and maintain road ways, excavations, tunnels, drain ways, tracks, pipe lines, power lines, tipples, and any and all other like structures and to do any and all things necessary or convenient for the mining and removing of said coal, clay and other minerals and said oil and gas and the coal, clay and other minerals and the oil and gas from other lands; and also the right to enter in, upon and under said land and to construct and maintain poles, towers and wires and other like equipment for carrying electricity for any purpose whatsoever; all without being in any manner liable for the breaking or subsidence of the surface of said land or for any injury or damage done to the overlying surface thereby or to anything therein or thereon, by the exercise of the rights hereby excepted and reserved, whether or not the same be caused by or due to the negligent manner in which said mining operations are conducted or said rights are exercised. “And also excepting from the operation of this deed and reserving to the said The George’s Creek Coal ¹²⁸ Company Incorporated, party of the first part, its successors and assigns, so much of the land herein-before described as may be necessary for a railroad right of way having a road bed sixty (60) feet wide, together with such other land which may be necessary for adequate slopes, cuts and fills for the same, the location and length of said railroad and right of way to be solely at the discretion and in the judgment of the said party of the first part, its successors and assigns.” (Emphasis supplied.) In 1931 the land was rocky, unimproved and covered with timber. It rose from George’s Creek (elevation 1400 feet), at grades ranging from 15% to 25%, to the top of Big Savage Mountain (elevation 2900 feet). McMillen, who was in the timber and pulpwood business, began logging operations immediately after taking title.

In February 1937, having “clear-cut” all of the timber, McMillen conveyed, subject to the exception and reservation of record, approximately 5800 acres of the tract to the United States for about $1.00 per acre. In December 1954 the United States sold the 5800 acres, along with other land in Garrett County, to the State of Maryland. It is now part of the Savage River State Forest. The conveyance from the United States to Maryland, which of course was subject to the exception and reservation of record already mentioned, contained the following additional restriction: “This conveyance is also made subject to the condition that the above-described land shall be used for public purposes, and if at any time said land ceases to be so used the estate hereby conveyed shall immediately revert to and become revested in the United States.” In December 1964, the Company applied to the Board of Public Works for permission to remove the coal by strip mining.

After a hearing held 14 December the Board granted permission (one member dissenting) subject, however, to the approval of the Department of Forests and Parks, which, after consideration of the application, in February 1965, refused to give its approval. The Company, on 14 November 1966, filed, ¹²⁹ in the Circuit Court for Garrett County, its bill for a declaratory decree against the Board of Public Works, Spencer P. Ellis, the director of the Department of Forests and Parks, and two mortgagees. The case was heard before the chancellor, Hamill, J., on 24 April 1967. The decree declaring the Company to be entitled to strip mine the coal and directing the issuance of a permit was filed 14 June 1967 along with the chancellor’s opinion.

We have before us the State’s appeal. At the trial below F. R. Zacher, a mining engineer, testified there is beneath the surface of about one-half of the property 7,371,000 tons of bituminous (soft) coal. He was of the opinion that 2,585,000 tons could be recovered by strip mining, 2 596,000 tons by the auger method and 4,190,000 by deep mining. Asked how the coal could be mined economically, he said: “To open a deep mine, I do not believe it would be economical unless first, a bench was established by strip mining wherein the surface would be removed and the coal removed and create a, what in strip mining terminology is known as a high wall. * * * [I]t would be my opinion that the crop line would be opened, there would be reservation of coal along that created high wall for auger mining and there would be solid areas left along the high wall from which you would enter with deep mines, and these deep mines would go in, down the hill, they would mine their allotted area, retreat and then a second mine and a third and a fourth would be opened, rather than tying up everything in one great big single mine for the entire field of coal.

Primarily, though it would have to be stripped, I believe, before it would be economical to mine any of it.” Mr. Zacher testified that the stripped area would total about 409 acres and that an additional 250 acres would be disturbed. ¹³⁰ The strips, of course, are not contiguous. They follow the coal seams. He also said strip mining had been known for “in excess of sixty years.” Frank T. Powers began his career in the mining industry in 1900. In 1918 he became a mine inspector for the State of Maryland.

From 1949 until his retirement in 1962 he was the director of the Bureau of Mines. He testified that a lessee of the Company strip mined about 2000 tons of coal near Lonaconing, about 3 miles from the land under consideration, in 1917, 1918 or 1919, “either one of those three years.” The only economical way the coal can be removed, he said, is by strip mining. Chelsie Liller has a stripping operation in Garrett County. He has lived in Allegany County since 1909.

He recalled that American Coal Company (the Company’s lessee), in 1917, strip mined coal from Lonaconing to Barton, a distance of 3)4 to 4 miles, and 2 to 3 miles from the Company’s property. He remembered McMillen’s logging operation. He said McMillen told him (Liller) that “He had no intention of ever holding it [the 5800 acres]. It was the timber he was interested in.” Spencer Ellis explained his department’s opposition to the granting of the permit.

We quote from his testimony: “Q. Now, if this area is permitted to be strip mined, is this consistent with the purposes of the Department with this land ? A. It is not. “Q. Why not? A. Because the act of removing the overburden destroys the surface for public use. We cannot grow timber on an area that has been or is being actively strip mined.

It has very little use for recreation. It certainly does not present a watershed protection program, and, of course, it has no available wildlife advantages or habitat for wildlife. “Q. Now, Mr. Ellis, you have heard some testimony this morning from Mr. Zacher as to the amounts of coal that he estimates is under this land. There are certain amounts that can be deep mined. Now, does the Department object to the deep mining of this coal?

A. We don’t certainly like deep mining either. It does ¹³¹ have some detrimental effects on the environment. However, compared to surface mining, the detrimental effects are not as pronounced. So, if you are weighing one as against the other deep mining does not have much effect on surface damage as strip mining, but it has some unrelated or related things such as drainage, spoil and odor and things that are damaging to the area.” Clinton Irwin, the district director of the Department of.

Forests and Parks, supported Mr. Ellis. He said: “* * * A. I would say in some areas it [strip mining] would have a very, very serious effect. “Q. In what way? A. As has been mentioned by several witnesses before me, this is a mountainside, it’s-a side of largely the east face of Big Savage Mountain which runs an altitude of from about 2,900 feet and drops off all the way down at George’s Creek at an elevation of perhaps 1,400 or 1,500 feet I would guess, but anyway it’s—the grades on the mountainside are quite steep. I would guess in some places they would range up to 25 percent.

The general procedure in strip mining on a mountainside is to strip with the crop right along the edge of the mountain following the cropline and depositing the overburden on the lower side. The general assumption is in strip mining is that the overburden will be replaced, back-filled so the land can be restored. However, when you are stripping along a mountainside and the grading gets beyond a certain percentage, it’s almost impossible economically to get the overburden back in the cut.” Michael Rodevick, an engineer employed by the Department of Water Resources, testified strip mining the property would exacerbate the pollution of the adjoining streams. John E., Brodie, an assistant district forester, told of the difficulties involved in the reclamation of any area that has been strip, mined.

The chancellor found that strip mining was “a known and! ¹³² practiced method of. removing coal in Allegany County in 1931” and that strip mining operations “were conducted in Maryland as early as” 1919. He went on to say: “I am of the opinion that the terms and phraseology of this reservation are broad enough to include any known method of mining coal; that the contracting parties to the original reservation had no regard or •concern for the surface of this rugged, mountainous and unimproved land, and their intention was to include in the aforesaid reservation any type of known mining operations, including strip mining.” I. The State contends that since the language of the deed is ■clear there is no need to consider evidence of the attending ■circumstances in order to ascertain the intention of the parties and the true meaning of this agreement. If the grantor had intended to reserve the right to strip mine the coal, the State •argues, it would have said so. The Company, on the other hand, insists the language of the deed is not clear and that its true meaning cannot be determined unless the circumstances attending its execution are taken into account.

In reply to the State’s •contention that the deed must be construed most strongly -against the grantor, the Company says the construction of a -deed against the maker is applied only in circumstances where intention can be discovered in no other way, citing Hodges v. Owings, 178 Md. 300 , 13 A. 2d 338 (1940), where it was said: “Both parties agree that if the language of a deed be doubtful, it shall he most strongly construed against the grantor, but as said in Zittle v. Weller, 63 Md. 190, 196 , 'this rule is to be resorted to, and relied on, only where all other rules of exposition fail to reach, with reasonable certainty, the intention of the parties.’ And as said in Maryland State Fair v. Schmidt, 147 Md. 613, 621 , 128 A. 365, 368 , 'to ascertain its true-meaning the situation of the parties and the circumstances attending the execution of the deed may be ‘Considered.’ ” Id. at 304. ¹³³ We do not agree that the grantor intended to foreclose the right to remove its coal by strip mining simply because it did not use precisely those words in its deed. We do agree with the Company, however, that the language is not clear. Therefore, we shall take a look at the evidence in the record and perhaps from our consideration of it there will emerge what the parties to the 1931 deed intended in respect of strip mining. It is important to remember that the Company had owned the land, in fee simple, for over 20 years before the deed to McMillen.

It was rocky, remote, mountainous, unimproved, and generally inaccessible. Agriculture was impossible. But there was timber and, as was well known in that area, timber was McMillen’s business. He had a planing mill at Western-port, 2 to 3 miles distant from the Company’s land, where he dealt in dressed lumber and pulpwood.

He intended only “to get the timber.” He told Chelsie Eiller that “he wouldn’t be able to keep it because he couldn’t get them [the County government] to cut the taxes on it * * * and he was going to unload it and let it go for taxes.” There is little doubt that the removal of the timber was the only thing the Company and McMillen had in mind in 1931. Indeed, in the absence of such an arrangement, the Company would have been obliged to remove, and in the process destroy, most of the timber in the course of its stripping operations. One suspects that Mc-Millen was given a deed, rather than the right to cut the timber, for the sole and deliberate purpose of shifting the tax burden to him. McMillen, as has been said, happily avoided the inevitable tax sale by selling to the United States for $1.00 per acre, a consideration somewhat excessive perhaps, considering the circumstances.

A close reading of the language used in the deed ought, per se, to banish any notion that McMillen had plans for the land, other than logging. Had he any such plans his acquiescence in the reservation of such broad and unrestricted rights by the grantor would be difficult, if not impossible, to understand. The Company retained the ownership of all “coal, clay and other