Appeal from the Circuit Court of the 13th Judicial Circuit, La Salle County, Illinois, No. 98-MR-109 Honorable Robert Carter, Judge, Presiding.
The opinion of the court was delivered by: Justice Slater
IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS
Plaintiff, Save Our Little Vermillion Environment, Inc. (SOLVE), a nonprofit corporation, filed a complaint for declaratory and injunctive relief against defendant Illinois Cement Company. SOLVE sought to prevent Illinois Cement from mining limestone on a parcel of land (the property) adjacent to Illinois Cement's existing quarrying operation. The trial court granted summary judgment in favor of SOLVE, finding that SOLVE's ownership interest in the "coal and other minerals" underlying the property included the limestone. We reverse.
The property at issue, consisting of approximately 34 acres, was conveyed by George Colling to John Fabricki in 1907, "[r]eserving the coal and other minerals underlying the same." SOLVE subsequently acquired an undivided three-fifths interest in the rights reserved by Colling. Illinois Cement is the successor to the rights of Fabricki, which it acquired by deed in 1993. Illinois Cement is a manufacturer of cement; a major component of cement is limestone. In October of 1997, the Illinois Department of Natural Resources issued a surface mining permit to Illinois Cement to engage in the mining of limestone on the property. In July of 1998, SOLVE filed a complaint seeking to be declared the owner of the limestone and to enjoin Illinois Cement from mining.
At the hearing on SOLVE's motion for a preliminary injunction, James Kirk, a quarry foreman for Illinois Cement, testified that the overburden, or surface material covering the limestone, varied from 3 feet to 60 feet. According to Kirk, the only way to mine the limestone was by removing the surface material. H. John Head, a mining engineer, similarly testified to the depth of the overburden and that the limestone could not be removed without disturbing the surface. According to Head, quarrying was the only feasible way to mine the limestone.
SOLVE's motion for a preliminary injunction was denied. Thereafter, both SOLVE and Illinois Cement filed cross motions for summary judgment. The trial court granted summary judgment in favor of SOLVE and this appeal followed.
Summary judgment should be granted when the pleadings, depositions and affidavits demonstrate that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 1998); Jackson v. TLC Associates, Inc., 185 Ill. 2d 418, 706 N.E. 2d 460 (1998). Review of an order granting summary judgment is de novo. Jackson, 185 Ill. 2d 418, 706 N.E. 2d 460; Bituminous Casualty Corp. v. Royal Insurance Co., 301 Ill. App. 3d 720, 704 N.E. 2d 74 (1998).
In general, an owner of land is entitled to the surface and all that is below it. Miller v. Ridgley, 2 Ill. 2d 223, 117 N.E. 2d 759 (1954). However, it is clear that the mineral estate may be severed from the surface estate by granting the minerals and reserving the surface, or by granting the surface and reserving the minerals. Failoni v. Chicago & North Western Ry. Co., 30 Ill. 2d 258, 195 N.E. 2d 619 (1964). In this case the grantor reserved "the coal and other minerals underlying" the property. At issue is whether such a reservation includes limestone, or whether limestone is part of the surface estate.
The parties recognize that Kinder v. La Salle County Carbon Coal Co., 310 Ill. 126, 141 N.E. 537 (1923), is the leading case in this area, but they disagree about its application to the facts presented here. In Kinder, James Cowey conveyed, in 1867, "all the bituminous or stone coal, together with the right to mine the same" (Kinder, 310 Ill. at 127, 141 N.E. at 537) as well as "the oil and minerals, of every description," (Kinder, 310 Ill. at 127-28, 141 N.E. at 538) underlying a parcel of land less than one mile from the property at issue in this case. In 1869, Cowey conveyed his remaining interest in the property, reserving "all bituminous or stone coal and other minerals, as well as all petroleum oil, in, upon or underlying said premises above described, together with the right to mine and raise the same." Kinder, 310 Ill. at 128, 141 N.E. at 538.
At issue in Kinder was whether the limestone on the property belonged to the owner of the mineral estate or the owner of the surface estate. The Kinder court rejected the argument that the technical definition of the term "minerals" was controlling (see Kinder, 310 Ill. at 132-33, 141 N.E. at 539-40), finding instead 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 if it can be ascertained.'" Kinder, 310 Ill. at 134, 141 N.E. at 540. Because of the obvious similarities between Kinder and the instant case, we set forth what we deem to be the most significant portion of the court's analysis at some length:
"When Cowey conveyed to the Chicago Coal Company he was engaged in mining coal in the immediate vicinity of appellees' land, then owned by him. Coal was the only known mineral under the surface which had any commercial value. Cowey knew appellees' land was underlaid with some gravel and limestone. On parts of the land the limestone was on the surface, and on the rest of it was covered with loam, sand and gravel from a few inches in depth to a depth, in places, of fifty or sixty feet. Where the loam was of sufficient depth the land was available for cultivation in crops and was productive. Cowey knew the limestone was so near the surface that it could not be mined by underground methods without the practical destruction of the agricultural surface. To our minds it would be unreasonable to say his intention was to reserve only the agricultural surface above the limestone and convey to the grantee the limestone, with the right to remove it, and thereby destroy all he had reserved. The granting clause of the deed conveys only the coal, 'together with the right to mine the same,' and the quit-claim clause of 'all minerals of every description' underlying the land described cannot reasonably be construed to embrace minerals other than such as could be removed by mining operations underground, which would not destroy the surface for agricultural purposes. It is altogether reasonable to presume that Cowey and his grantee had no thought of limestone, sand and gravel as minerals. They knew those were on or near the surface and were of an entirely different nature from coal and oil,-the minerals specifically mentioned in the deed and which could be mined by underground methods. Two years after Cowey made the deed to the Chicago Coal Company he conveyed the land in controversy to Kinder and Burrell, reserving 'all bituminous or stone coal and other minerals, as well as all petroleum oil, in, upon or underlying said premises above described, together with the right to mine and raise the same.' By that reservation the grantor meant and intended to except from the grant what he had conveyed to the Chicago Coal Company, and the words 'the right to mine and raise the same,' show the reservation was intended to be limited to minerals which could be mined and raised by underground workings without destruction of the surface." Kinder, 310 Ill. at 134-35, 141 N.E. at 540.
While Kinder would appear to favor Illinois Cement's position that they own the limestone, SOLVE argues, and the trial court found, that Kinder is distinguishable from the instant case. SOLVE asserts that the following differences between Kinder and the case at bar favor a result contrary to Kinder: (1) the Kinder deeds contained the language "the right to mine and raise the same"; (2) substantial amounts of limestone were visible on the surface of the land in Kinder; and (3) ...