Natural Resources
A. Owning and Using Discrete Resources.
a. Interpreting Ambiguous Deeds.
i. Save Our Little Vermillion Environment, Inc. v. Illinois Cement Company.
1. Case History.
a. Plaintiff filed a complaint for declaratory and injunctive relief against defendant. Plaintiff sought to prevent defendant from mining limestone on a parcel of land adjacent to defendant’s existing quarrying operations. Trial court granted summary judgment to plaintiff, finding that plaintiff’s ownership interest in “coal and other minerals” underlying the property included the limestone. Supreme Court of Illinois reversed.
2. Rules.
a. In general, an owner of land is entitled to the surface and all that is below it.
i. However, the mineral estate may be severed from the surface estate by granting the minerals and reserving the surface, or by granting the surface but reserving the minerals.
b. The Kinder case stated that the rule for interpreting grants of minerals was that “each case must be decided upon the language of the grant or reservation, the surrounding circumstances, and the intention of the grantor.”
c. Under the doctrine of ejusdem generis, where general words follow an enumeration of specific things of a particular class, the general words are to be construed as applying only to things of the same general class as those enumerated.
d. Where there is ambiguity in a contract, it is to be interpreted most strictly in favor of the grantee.
3. Conclusion.
a. Court rejects the idea that “minerals” is a technical term, finds that the grant of “coal and other minerals” in this case is ambiguous and finds that the defendant is the owner of the limestone.
ii. Jilek v. Chicago Wilmington & Franklin Coal Co.
1. Rules.
a. Both the mineral estate and the surface estate in land, when severed, are real estate.
i. When the mineral estate is severed from the surface estate the means of obtaining or enjoying it are also granted, and pass with the grant of the minerals, without an express covenant for such purpose.
b. Oil and gas leases granting the right to search for and take oil and gas are freehold estates in the land.
c. Oil and gas are minerals and belong to the landowner so long as they remain in the land.
i. Oil and gas, though in their natural state are “in place,” they are considered fugitive in character and are things which by surface operations may be reduced to possession.
d. The law requires the owner of the mineral estate to extract minerals without damaging the surface, and, unless there is a specific exemption of liability, the owner of the surface can recover for damages caused by sinking or subsidence caused by mining.
e. It has been held that the implied right to occupy so much of the surface as may be needed to open and work the mineral estate is not limited by the special grant or reservation of privileges, which would not be implied.
f. The right to use passage ways and to move coal from other land and the right to take surface land for other mining purposes at a price must be specifically contracted for.
iii. Wechsler v. People.
1. Case History.
a. Plaintiff commenced this action to enforce and restrain interference with his hunting and fishing easement over lands owned by the State.
2. Rules.
a. An easement cannot be used for purposes beyond its intended scope.
b. The landowner- grantor of an easement retains the right to make all other uses of the land affected by the easement.
c. A profit a prendre is a right to enter onto the lands of another and remove a valuable natural resource.
i. This is a type of easement.
3. Conclusion.
1. Court concludes that the holder of affirmative easement to hunt and fish had no right to prohibit general use or enjoyment of property by landowner; easement was not exclusive in light of wording of its grant, and landowner had right to use land in any manner that did not unreasonably interfere with rights of easement owner.
2. Court also concludes that the holder of expressly reserved hunting and fishing easement could erect signs to protect his rights; posting of signs was reasonably appurtenant to protection and enjoyment of easement, despite violation of rules and regulations regarding unique areas that resulted from posting.
iv. Mikesh v. Peters.
1. Case History.
a. Plaintiff had reserved the right to hunt on the land in question and the defendant clear cut the timber on the land and planted it with corn.
2. Rules.
a. Several decisions by courts in the past have resolved ambiguities in deed reservations against the grantee that does not bargain for and obtain restrictions against changes in the servient property.
b. For cutting brush in bad faith, in a manner to injure the hunting, defendant would be liable to plaintiffs in damages.
c. As a general rule, so long as the tenant is bona fide and reasonably managing and using the lands, the owner of the rights must be content to exercise his right upon the lands in the condition in which they may happen to be.
d. If an exclusive hunting easement is given, then the landowner may not also hunt on the servient estate.
3. Conclusion.
a. Court held as a matter of law that “recreational rights,” when as here so nearly equated with hunting rights, do not limit the landowner in his use of the affected land absent an express covenant to the contrary or a malicious bad faith destruction of the clearly designated object of the right.
b. The court noted that the defendant had not prevented the plaintiff from entering the land to hunt and that the plaintiff knew at the time of conveyance that the defendant intended to harvest timber on the land.
v. The Incidental Use Doctrine.
1. This doctrine states that a railroad may use its easement to conduct not only railroad related activities but also any other incidental activities that are not inconsistent and do not interfere with the operation of the railroad.
B. Surface Use Rights.
a. Hunt Oil Company v. Kerbaugh.
i. Case History.
1. Landowners appealed from an order of the district court enjoining them from interfering with geophysical explorations carried on over their property by the plaintiffs. Landowners asserted that the oil company did not have an unlimited right to conduct seismic exploration over their property.
ii. Rules.
1. The incidental right of ent
i. Case History.
1. Appellants contend that the district court erred in granting summary judgment and in enjoining them from conducting any mineral activities which could result in the disturbance of surface resources until they had complied with federal regulations.
a. Federal regulation made them file an operating plan for their mining operation in a national forest
2. Rules.
a. The failure to an executive agency to act does not forfeit or surrender governmental property or rights.
b. While prospecting, locating, and developing mineral resources in the national forests may not be prohibited nor so unreasonable circumscribed as to amount to a prohibition, the secretary may adopt reasonable rules and regulations which do not impermissibly encroach upon the right to the use and enjoyment of placer claims for mining purposes.
C. The Reasonable and Beneficial Use of Water.
a. Department of Ecology v. Grimes.
i. Rules.
1. A general adjudication is a special form of quiet title action to determine all existing rights to use the water from a specific body of water.
2. Appropriative water rights require that once appropriated, the right to use am given quantity of water becomes appurtenant to the land. The appropriated water right is perpetual and operates to the exclusion of subsequent claimants. The key to determining the extent of plaintiffs’ vested water rights is the concept of “beneficial use.” An appropriated water right is established and maintained by the purposeful application of a given quantity of water to a beneficial use upon the land.
a. Beneficial use refers to the quantity of water diverted by the appropriator, not to its availability in the source of supply.
i. Beneficial use is a term of art in water law and encompasses two principal elements of a water right.
1. First, it refers to the purposes for which water may be used.
a. Use of water for the purposes of irrigation and agriculture is a beneficial use.
2. Second, beneficial use determines the measure of a water right.
3. Water duty is the measure of water, which, by careful management and use, without wastage, is reasonably required to be applied to any given tract of land for such period of time as may be adequate to produce there from a maximum amount of such crops as ordinarily are grown there.
4. A particular use must not only be of benefit to the appropriator, but it must also be a reasonable and economical use of the water in view of other present and future demands upon the source of supply.
Local custom and the relative efficiency of irrigation systems in common use are important elements, but must be considered in connection with other statutorily mandated factors, such as the
