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PO Box 1070, Frankfort, KY 40602  Phone 502.875.2428, Fax 502.875.2845

Opening Brief Filed In Joint Tenancy - Strip Mining Case  Posted: January 2, 2004

COMMONWEALTH OF KENTUCKY

MUHLENBERG CIRCUIT COURT

CIVIL ACTION NO. 03-CI-03-CI-00414

BILLY W. KIRTLEY and

SUE KIRTLEY, PLAINTIFFS,

VS. PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

R & L WINN, INC. et al. DEFENDANTS.

Come now, the Plaintiffs, Billy W. Kirtley and Sue Kirtley, his wife, by and through counsel, and respectfully move this tribunal pursuant to CR 56.01 for summary judgment against the Defendants.

Plaintiffs state in support of this motion that there are no genuine issues as to any material fact and that the Plaintiffs are entitled to a judgment as a matter of law on the matters presented herein as set forth in the Plaintiffs' Verified Complaint. In support of said motion, a memorandum and are tendered the Affidavit of Billy Kirtley dated __________, 2003, and the deposition of Randy Winn, President of R&L Winn, Inc., of November 18, 2003, and exhibits thereto are likewise tendered in support of this motion.

Respectfully submitted,

_________________________

Daniel N. Thomas

THOMAS & ARVIN

1209 S. Virginia Street

P.O. Box 675

Hopkinsville, Kentucky 42241-0675

(270) 886-6363 (Telephone)

(270) 886-8544 (Facsimile)

Attorney for Plaintiffs

MEMORANDUM IN SUPPORT OF PLAINTIFFS’

MOTION FOR SUMMARY JUDGMENT

Plaintiffs Billy and Sue Kirtley (the Kirtleys) have moved for summary judgment against the defendants R & L Winn, Inc., (Winn), and Rapid Energy, Inc., (Rapid). This memorandum is offered in support of that motion, and demonstrates beyond question both that there are no genuine issues as to any material facts in dispute and that Plaintiffs have demonstrated clear entitlement to a summary judgment against each of the remaining defendants as a matter of law. (The Court has resolved the declaratory relief sought against the Defendant, William Ann Enterprise, Inc., and Howard Covington, and they have each been dismissed as Defendants).

STANDARD OF REVIEW

The standards by which Kentucky Courts evaluate motions for summary judgment pursuant to CR 56 are those enunciated in the Steelvest case. “Under the Steelvest standard, the purpose of summary judgment is to terminate litigation when it appears to be impossible for the party opposing the motion to produce evidence at trial which would warrant judgment in her favor. Summary judgment is not to be granted lightly, and, in fact, is not to be granted at all unless the "right to judgment is shown with such clarity that there is no room left for controversy." Kirk v. Watts, Ky.App. 62 S.W.2d 37, 38.

Since this case presents questions of law against a background of undisputed material facts, summary judgment is the appropriate vehicle for disposing of the question of law. On the strength of the arguments presented below, the Kirtleys satisfy their burden of demonstrating entitlement to judgment as a matter of law. Scifres v. Kraft, Ky.App. 916 S.W.2d 779 (1996).

STATEMENT OF UNDISPUTED FACTS

1. The Plaintiffs, Billy W. Kirtley and Sue Kirtley are residents of 2276 West Belton, Muhlenberg County, Kentucky.

2. The Plaintiff, Billy W. Kirtley, is the owner of an undivided 1/10 interest as a joint tenant in common in two (2) tracts of real property located near Greenville in Muhlenberg County, which are described as Tract 1 and Tract 2, in a deed dated April 12, 1983, recorded in Deed Book 355, at 491, in the Office of the Clerk of the Muhlenberg County Court, a copy of which is attached hereto, the terms of which are incorporated herein by reference as Exhibit A, and by deed dated September 12, 2001, from Sue Kirtley to Billy Kirtley, which is recorded in Deed Book 485, at Page 336, in the Office of the Clerk of Muhlenberg County.

3. The Plaintiff, Billy W. Kirtley’s, one-tenth (1/10) joint undivided tenants in common in Tract 1, is in both the surface and minerals, and in Tract 2 is limited to only the minerals.

4. The Defendant, R & L Winn, Inc., is the assignee by a “Coal Mining Lease” dated April 15, 2003 of the other 9/10 joint tenants in common co-owners with the Plaintiffs. The lease purports to assign to the Defendant, R & L Winn, Inc., from the other 9/10 joint tenants in common, various rights of possession, rights to remove timber, the right to conduct surface mining activities, and the right to designate the future post-mine use of the surface of the jointly owned real property described in Exhibit A. A copy of the “Coal Mining Lease” is attached hereto, the terms of which are incorporated herein by reference as Exhibit B.

5. R & L Winn, Inc., is also the assignee of a “Coal Lease Assignment” dated April 4, 2003 from William Ann Enterprises, Inc., a copy of which is attached hereto, the terms of which are incorporated herein by reference as Exhibit C.

6. The Defendant, Rapid Energy, Inc., was the initial assignee by a lease dated August 5, 2001, of the other 9/10 joint tenants in common co-owners with the Plaintiffs. That lease purported to assign to the Defendant, Rapid Energy, Inc., from the other 9/10 joint tenants in common, various rights of possession, right to remove timber, the right to conduct surface mining activities, and the right to designate the future post-mining land use of the surface to the jointly owned real property described in Exhibit A. A copy of the lease is attached hereto, the terms of which are incorporated herein by reference as Exhibit D.

7. The Defendant, Rapid Energy, Inc., has assigned those rights described in an “Assignment” to the Defendant, William Ann Enterprises, Inc., pursuant to an “Assignment” dated March 5, 2003, a copy of which is attached hereto, the terms of which are incorporated herein as Exhibit E.

8. The Defendant, William Ann Enterprises, Inc., claims an interest in the jointly owned minerals in which the Plaintiff owns a one-tenth undivided interest as a tenant in common. The Defendant, Rapid Energy, Inc., has agreed to pay to the Defendant, William Ann Enterprises, Inc., a “lease override”, pursuant to the terms of a “Memorandum of Understanding” dated January 30, 2003, by an “Assignment” dated March 5, 2003, a copy of the “Assignment” is attached hereto, the terms of which are incorporated herein as Exhibit F.

9. The Defendant R & L Winn, Inc., has represented to the Kentucky National Resources and Environmental Protection Cabinet, Department for Surface Mining Reclamation and Enforcement ("Cabinet") as “Attachment B, Lease 5”, to an “Application to Transfer Mining Permit”, that the Defendant, Howard Covington has an override royalty interest in the real property and minerals which the Plaintiff owns as a 1/10 joint tenant in common. A copy of “Attachment B, Coal Lease Assignment” is attached hereto, the terms of which are incorporated herein as Exhibit G.

10. The Defendant, Rapid Energy, Inc., filed an application for a surface mining permit to undertake the surface mining of a portion of the Number 9 seam of coal in which the Plaintiffs owned a 1/10 undivided joint interest as a tenant in common, as described in Exhibits A and B.

11. The permit application filed by Rapid Energy, Inc., among other things, (a) confirmed that the applicant did not have a lease or assignment from the Plaintiff; (b) designated the post-mining land use of the jointly owned surface as “pastureland”; (c) designated a portion of the surface, both during mining and post-mining for a “sediment pond”, and (d) allowed for the removal of all timber and vegetation after a notice period.

12. The Plaintiff, Billy W. Kirtley and Sue Kirtley, filed an objection to the issuance of the surface mining permit sought by Rapid Energy, Inc., as set forth in a letter dated August 23, 2001, a copy of which is attached hereto, the terms of which are incorporated herein by reference in Exhibit H.

13. Unable to resolve their dispute, the Plaintiff timely filed a Petition for Review with the Cabinet of the decision to issue Permit No. 889-01114, asserting among other issues that as the Defendant, Rapid Energy, Inc., did not have the consent of the Plaintiff, a joint 1/10 undivided joint tenant, to undertake the actions sought to be permitted by Rapid Energy, Inc., and did not have the lawful right-of-entry that is prerequisite to the issuance of a surface mining permit. The Defendant, Rapid Energy, Inc., and the Natural Resources Cabinet, defended the permit decision on the bases that the Cabinet had no jurisdiction to adjudicate a property dispute between the parties and that under Kentucky law, consent was not necessary and, as such, Rapid Energy, Inc., was entitled to the issuance of the surface mining permit sought.

14. On May 14, 2003, a Cabinet Hearing Officer filed a written Hearing Officer's Report and Recommended Order denying the administrative relief sought by the Plaintiff, on the basis that the applicant had made a sufficient showing of right to mine and that the Cabinet did not have the authority to entertain a property rights dispute. The Hearing Officer made various findings of fact and conclusions of law as set forth in his Opinion, a copy of which is attached hereto as Exhibit I, the terms of which are incorporated herein by reference. The Secretary of the Cabinet issued a final Order adopting that report and recommended order on May 12, 2003. The Plaintiff, as Appellant, has appealed that decision to the Franklin Circuit Court, where it is pending.

15. The Defendant, R & L Winn, Inc., applied to the Cabinet and received a transfer of the surface mining permit previously issued to Rapid Energy, Inc., and is presently authorized to conduct surface mining pursuant to the terms and conditions of Permit No. 889-0114.

16. Based upon the deposition of Randy Winn on November 18, 2003, and as of the date of this Motion for Summary Judgment, R & L Winn, Inc., has not, to the best of the Plaintiff’s knowledge or information initiated surface mining on the disputed tracts, nor the cutting of any timber within the area permitted by Permit No. 889-0114 for which the Plaintiff owns a 1/10 joint undivided interest as tenants in common, nor have the Plaintiffs withdrawn any of their prior objections as set forth in Numerical Paragraph 6 herein.

17. R & L Winn did not contact or attempt to contact Plaintiffs concerning the proposed permit transfer, despite having knowledge of their joint ownership, as reflected in the lease submitted to the Cabinet bearing the signatures of the other joint tenants and blank signature spaces for Plaintiffs.

18. The Plaintiffs have objected in writing, and continue to object to the cutting of any timber from the jointly-held land, to the permanent replacement of the surface with pastureland and to the permanent dedication of a portion of the land to a sediment basin to be located on that portion of the leased property which the plaintiffs own 1/10 undivided interest as a tenant in common.

QUESTIONS OF LAW

1. Is the attempted conveyance by lease to Winn of a “right to sell and/or remove all timber, growing crops or structures on the premises” void and of no legal effect as a conveyance in derogation of the rights of the Kirtleys as nonconsenting cotenants?

2. If the lease of rights by the other co-tenants to Winn is valid, does Winn have the authority to cut any trees without the consent of all co-tenants?

3. Does the removal of timber by or on behalf of a joint tenant without the consent of all other co-tenants constitutes prohibited "waste?"

4. Does the proposed undertaking of area surface coal mining operations which will destroy the land surface and dedicate the property to a heavy industrial use for a period of time, excluding the Kirtleys from the tracts of land at issue, effect an actual or constructive ejectment and ouster, and does it result in a conversion of the property to individual use in derogation of the rights of the Kirtleys as non-consenting co-tenants?

SUMMARY OF ARGUMENT

The attempted conveyance by lease to Winn from the 9/10th joint tenants in the two tracts in question of a “right to sell and/or remove all timber, growing crops or structures on the premises” was void and of no legal effect as a conveyance inconsistent with the nature of the ownership rights of joint owners. It is clear that under Kentucky law, no joint tenant has the right to cut or sell timber from jointly-held property absent the consent of all co-tenants, and that any attempt to convey such rights to a third party is void and of no effect.

Assuming arguendo that the lease of rights by the other co-tenants to Winn is valid in other respects, it is clear that Winn lacks the authority to cut any trees without the consent of the Kirtleys, since as a lessee Winn succeeds only to those rights held by the lessor, which do not include unilateral destruction or removal of timber. The cutting of timber in such circumstances constitutes prohibited "waste" which is subject to being enjoined by a court.

Finally, the conveyance of a right to Winn to destroy the land surface of the disputed tracts in order to remove by area surface mining methods, the coal beneath the surface, creates a circumstance in which the mutual rights of the Kirtleys to use and enjoyment of the jointly-held land are effectively extinguished. Surface coal mining by area methods devotes the land surface exclusively to mineral extraction, excluding other uses and users from the land for the period of time that the mining and reclamation is ongoing. This exclusive dedication of the land to mineral excavation and extraction effects an actual or constructive ejectment and ouster, and results in a conversion of the property to individual use by a lessee of some of the co-tenants in derogation of the rights of the Kirtleys as non-consenting co-tenants.

ARGUMENT

Under Kentucky law, a cotenant of real property may enter and use the commonly owned estate as if she or he were the sole owner, regardless of his or her percentage of interest. For "[t]he primary characteristic of a tenancy in common is unity of possession by two or more owners. Each cotenant, regardless of the size of his fractional share of the property, has a right to possess the whole." Martin v. Martin, 878 S.W.2d 30, 31 (Ky.App. 1994).

That right of possession is subject to constraints, however, and those constraints have in this instance been transgressed both in the attempted conveyance of the right to remove timber and to surface mine the property without the consent of all cotenants.

The lease in question purports to convey rights to a remote party (Winn) that are beyond the power of less-than-all joint tenants to convey and which are inconsistent with the obligations and limitations inherent in a joint tenancy. The lease attempts to convey to Winn rights to destroy or remove standing timber, and to destroy the land surface by area surface coal mining, that the no joint tenant possesses in the first instance absent the consent of all other cotenants.

No one disputes that those “lessor” co-tenants lack the authority to burden the undivided interests of Billy and Sue Kirtley in the jointly-held lands. For it is axiomatic that "one joint owner of land cannot, by his own unconsented to agreement, burden the interest or title of his joint owner[,]" Clark v. Smith, 66 S.W.2d 93, 95 (1933). When a joint tenant enters into any such transaction not consented to by his associates in interest “it attaches only to his aliquot part ownership and is not obligatory on any of the others." Id., at 95. See: also ­Geary v. Taylor, 179 S.W. 426, 428 (1915)("Where property is owned by several tenants in common, a lease by one or more of them is not valid as to those who do not joint in the lease, but operates merely to make the lessee a tenant in common with the others.") Any rights that the lessee acquires under a lease from a joint tenant "are subordinate to the rights of the other joint owners of the lands, who do not join them[,]" Potter v. Wallace, 215 S.W. 538, 542 (1919), and the lessee acquires "no right which will prejudice the rights of the nonassenting cotenants." Id.

The question here is whether those co-tenant who leased their interests to R & L Winn had the ability to lease the power to remove standing timber or to conduct area surface coal mining of the joint property, without the consent of the Kirtleys, who are the co-tenant owners of a fractional 1/10th interest in the lands. The answer is resoundingly negative, since the “right to possess the whole" recognized in the Martin case is subject to constraints that have in this instance been transgressed. For in attempting to convey to a remote third party the right to remove timber without the consent of all cotenants, the cotenants who executed the lease purported to grant what was not theirs to grant.

I. THE CONSENT OF ALL JOINT TENANTS IS REQUIRED FOR TIMBER REMOVAL AND THE ATTEMPTED LEASE OF THAT RIGHT ABSENT THE

CONSENT OF ALL COTENANTS IS VOID

Numerical Paragraph 5 of the Winn lease purported to convey a right to Winn, as lessee, to destroy or use any standing timber after sixty (60) days notice to the lessors.

In full, the paragraph reads:

5. Removal of Timber, Growing Crops or Structures

Lessors shall have the right to sell and/or remove all timber, growing

crops or structure on the premises. lessee shall give Lessors not less that

(sic) sixty (60) days written notice of its intention to commence mining

a designated area of the premises. lessors may remove any timber, growing

crops or structures which they desire to remove from the designated area

within the said sixty (60) day period in order that Lessee can commence

mining operations. After the expirations (sic) of said sixty (60) days,

Lessee will not be responsible for the destruction or use of timber,

growing crops or removal of or damage to structures or other improvements

on the designated area of the premises.

It is well-settled under Kentucky law that a cotenant does not have the authority to cut trees absent the consent of each of the cotenants. Emmons v. Evans, 198 S.W. 900 (1917); Burt & Brabb Lumber Co. v. Clay City Lumber Co., 64 S.W. 652 (Ky. 1901). As the court noted in the Burt case, "[t]he common and statutory law both carefully protect owners of land in their right to preserve it as they may desire[.]" As with that case, the remedy if timber removal or destruction is desired by the leasing cotenants, is to partition the land. Id. at 653.

It is equally well-settled that a co-tenant cannot convey by lease or by deed, the timber from land jointly owned by others without their consent. Winchester v. Watson, 183 S.W. 483, 487 (1916) ("It is well settled, both by statute and by the adjudications of this court, that a tenant in common cannot lawfully sell timber from land jointly owned with others, without their consent.") It is generally acknowledged that any rights that the lessee acquires under a lease from a joint tenant "are subordinate to the rights of the other joint owners of the lands, who do not join them[,]" Potter v. Wallace, 215 S.W. 538, 542 (1919), and the lessee acquires "no right which will prejudice the rights of the nonassenting cotenants." Id. Since the lessee can take only those rights which the lessor has to convey, the attempted lease by 9/10ths of the joint tenants of the right to enter and cut any standing timber after a notice period, was void ab initio since the lessors were no more competent to convey such a right absent the consent of the Kirtleys that they would be to unilaterally harvest or destroy the standing timber themselves without the Kirtley’s consent.

In Nevels v. Kentucky Lumber Company, 56 S.W.969 (1900), the Court explained the basis for the requirement of cotenant consent for timber removal.

Joint tenants or tenants in common may, or course, join in a

conveyance of the common property, but, one co-tenant not

being permitted to do any act which will prejudice the rights

of another, a sale made by one will not devest (sic) another

of his interest in the common property, unless he had been duly

authorized to make such sale, or unless the sale was duly

ratified by the other tenants. But such a sale is not, as a general

rule, void; the purchaser's title attaching to such interest, and

only such, as the tenant of whom he purchased was possessed.

(citation omitted).

Id. at 969.

The Nevels Court continued, describing the Minnesota case of Shepard v. Pettit, in which a cotenant had cut logs without the consent of the other, and quoting with approval the principle that while a cotenant may engage in such beneficial use as is associated with normal husbandry:

But this right to retain, use, and appropriate the benefits of the

land extends only to the products of its proper use and employment, and not to anything which is part of the land itself, and not severable in the proper use of it. He is undoubtedly liable for waste, or for destruction of what is of the realty, or for acts amounting to a destruction of part of the realty, as the severance and removal of a mill or the fixed machinery. . . . Standing trees are ordinarily, at least, to be regarded, as between the co-tenants, as part of the real estate, and severing and removing them without consent of other co-tenants is a destruction to that extent of the realty. . . . It is clear that it is waste to cut and remove the timber off timbered land . . . .

Id.

The Burt and Brabb Lumber Co. v. Clay City Lumber Co., 111 Ky. 725, 64 S.W.652 (1901) decision, in explaining why the attempted conveyance of timber rights by a cotenant absent the consent of other cotenants could not support removal of the timber, expressly addressed and underscored the inability of a cotenant to convey rights to remove coal absent the consent of other cotenants:

[T]he law is well settled that where one tenant in common

conveys to a stranger anything less than the full undivided

interest of the vendor in the whole land, where such interest

is prejudicial to the rights of the other cotenants, the

conveyance as to them is utterly void. . . If Mrs. Holbrooks,

by the sale of a part of all of the trees growing upon the

land, could invest the purchaser with the rights of a joint

tenant, so in the same way she might dispose of stone quarries,

coal deposits, and other minerals that might be found upon the

land, and thereby create numerous new tenancies in common,

and her grantees could have enforced a sale of each interest

as against the other cotenant, which would inevitably

result in the destruction of his landed estate.

The Court concluded that such a result would be inconsistent with the goal of the common and statutory law to "carefully protect owners of land in their right to preserve it as they may desire" and that any attempt to convey such rights would be enforceable only through a partition of the estate. Id. at 653.

While the Court in Nevels noted that a conveyance to a third party by less than all cotenants is not as a general matter “void,” the Court in Burt concluded that an attempted conveyance of the right to remove timber was ineffective and insufficient as to the non-consenting co-tenants. The Burt Court noted, "the law is well-settled that where one tenant in common conveys to a stranger anything less than the full undivided interest of the vendor in the whole land, where such interest is prejudicial to the rights of the other cotenants, the conveyance as to them is utterly void." Both Nevels and Burt, as well as an unbroken line of Kentucky case law, make clear is that a lease purporting to convey the right to sever standing trees is insufficient to convey that right absent the consent of all co-tenants.

The Winn lease purports to allow the company, without liability, to destroy or use such standing timber as is not removed by the lessors within a sixty day period after giving notice. Since the Kirtleys have indicated that such consent will not be given, the Lessor-cotenants lack any authority to enter and remove that timber, meaning that under the lease, the company will destroy or use all standing timber after the lapse of the sixty day period.

The lease purports, in two respects, to divide between the parties rights which neither possesses – in the first instance, the lease purports to reserve to the 9/10 interest holders the right to remove standing timber, which is plainly contrary to law; and in the second instance, to grant to the company a right to use or destroy all that remains standing after 60 days elapse.

For this reason, without more, the Winn lease is invalid and void as to the Kirtleys as an attempt to convey rights to remove and destroy standing timber which the lessors were not competent to exercise themselves and thus cannot dispose of by lease. Summary judgment as warranted on the invalidity of the lease with respect to the destruction or removal of standing timber on the subject properties, and a permanent injunction preventing Winn from removing or destroying any standing timber is justified, since any such action would constitute prohibited waste.

II. A JOINT TENANT DOES NOT HAVE THE AUTHORITY TO ENGAGE IN OR TO AUTHORIZE BY LEASE ANOTHER TO ENGAGE IN AREA SURFACE COAL MINING THAT WOULD RESULT IN EFFECTIVE OUSTER AND EXCLUSION OF ANOTHER JOINT TENANT FROM THE JOINTLY-HELD LAND

The rights conveyed through the Winn lease are as sweeping in their scope as they are fundamentally incompatible with the concept of the unity of possession of joint tenants. The lease purports to convey to Winn, without the consent of the Kirtleys,

the exclusive right to mine, extract and remove all coal on or under the

premises for its exclusive benefit which, in the Lessee’s sole determination

is recoverable at a reasonable profit to Lessee, and to conduct such

mining operations by the surface mining method (auger mining is specifically

prohibited by this lease) as Lessee shall determine with the unrestricted

right to removal and destroy all or any part of the surface of the premises

for mining and/or reclamation operations of Lessee on the premises and

in conjunction with adjoining properties which are being mined or reclaimed

by the Lessee, all without claim or liability for damages to the surface of the

premises. Lessee shall have the right, without claim or liability for damages,

to raze or remove any improvements presently or hereafter constructed on the

premises, unless lessee executes a written waiver of such right prior to the

date of which such improvements are made or constructed on the premises.

(Emphasis added).

This case presents a legal question of first impression in the Commonwealth: whether a joint tenant has the right to destroy without liability all of a jointly-held property for area surface coal mining. For Winn can take under the lease only those rights that the lessor-cotenants are empowered to convey, and if the contemplated and sanctioned destruction of all or part of the surface of the land in order to access to underlying coal is inconsistent with the status of a cotenant, Winn takes nothing, the lease is void and is legally insufficient to support mining.

The answer is clear – the proposed destruction of the entirety of the joint estate is an exclusive use that is inconsistent with the status of joint tenancy and constitutes an ouster and constructive ejectment, and waste of the estate.

The proposition that the opening of a new surface coal mine without the consent of cotenants constitutes prohibited waste is generally recognized in law. 78 Am Jur.2d Waste at Section 22 provides:

It is a general rule that one in possession of premises under a limited

or temporary tenancy may, without committing waste, continue to work

mines or quarries that were open when the tenancy began. The theory

behind the holding in those cases is that mining is a mere mode of use and enjoyment, and to extract minerals is merely to take the accruing profits of the land. However, the rule in most jurisdictions is that the opening and operation of new mines, except as reasonably necessary for the repair and maintenance of the property, or unless the right is expressly conferred, constitutes waste.

* * *

Thus, where a lessee had obtained the consent to mine coal from the leased property from several, but not all, of the cotenants in the property, the lessee's mining operations constituted waste and the nonconsenting cotenants were

entitled to an injunction.

Id. at Section 23, p. 323.

Where the mining activity constitutes a "material and continuing destruction" of the property such activity constitutes waste and may be enjoined. 20 Am. Jur. 2d Cotenancy and Joint Ownership, Section 99, p. 191.

While there are no reported decisions in Kentucky directly on point concerning whether a proposed mining activity that would effectively destroy the land surface in order to extract the minerals would constitute waste as to non-consenting cotenants, such case law as does exist suggests that Kentucky is in accord with the proposition that it would constitute waste.

Kentucky courts have noted, as a general proposition, that one cotenant may lease his undivided interest in joint real property for "oil and other mineral" removal and that the lessee becomes "a cotenant in the mineral leased with the other joint owners" and may "enter upon the joint property and explore for, mine, and market minerals", subject to an obligation of accounting to the non-consenting cotenant. York v. Warren Oil and Gas Co., 229 S.W. 114, 115-6 (Ky. 1921).

Taylor v. Bradford, 244 S.W.2d 482 and its progeny hold that cotenants have the right to drill for gas on commonly-owned property without the consent of the other cotenants. Petroleum Exploration Corp. v. Hensley, 284 S.W.2d 828, 830 (1955).

However, with one exception, the reported decisions in Kentucky involving leasing and development of mineral interests by a cotenant without the consent of other cotenants involved oil and gas, not the surface mining of coal through methods that would result in the attendant destruction of the fabric of the land itself. There has never been a reported decision in this Commonwealth in which the Court has been asked to confront the question of whether a cotenant can literally upend and obliterate the surface of the estate in order to extract coal from beneath the land, or to lease to another that right, over the objection of another cotenant.

It is true that in the case of Taylor v. Bradford, 244 S.W.2d 482 (1951) the Court stated that "appellees had a right to mine the coal on their own land, both before and after appellant advised them of her joint interest." Id. at 484. Yet Taylor is distinguishable from the instant case. The Taylor court was not faced with the question of whether the complete destruction of the land surface through area surface mining was consistent with the rights of the nonconsenting cotenant to use and enjoyment of the property. There is no indication that the Appellant in Taylor objected to the mining or sought to enjoin the activity on the basis that it constituted waste or a constructive ouster. Instead, the complaining party conceded the right of Appellees to mine the property, Id., at 486, and sought only a royalty interest. That is a concession that the Kirtleys do not make.

Nor is there indication that the Taylor court considered the question of whether surface coal mining would be permissible even where it effective consumed the entire joint property and exclusively dedicated the land to that activity.

The York court noted that the rights of Warren Oil and Gas Company were tempered by the correlative rights of the cotenant York daughter, suggesting that such an exclusive dedication of joint land to mining purposes would not be acceptable:

While she and her lessee had the right to the surface for the purpose of exploring for, mining, and marketing the oil and gas, this use of the

surface was not and could not be exclusive, but subject always to the same right of the other cotenant. Had the son, who owned the other one-half undivided interest in the land, leased it to another company, both

companies would have enjoyed the privilege of entering upon

and using the surface of the lands while drilling for oil and gas

to the same extent as their grantors could have done, each respecting

the prior location and improvements of the other, and accounting

to the cotenants for their respective interests in the oil and gas produced.

This is but an application of the well-known rule governing cotenants of real property.

York, supra, at 116.

Explicit in that analysis is the proposition that the use or lease of the surface in a manner that would be exclusive of the right of other cotenants to use of the property would be inconsistent with the rights of the other cotenant. Exploration and development of oil and gas on a tract of land is not, as the York court recognized, necessarily exclusive or preclusive of other uses to which the land could be put, such as agriculture. Area surface coal mining is, by stark contrast, such an exclusive use, in which site access is limited and controlled, the surface of the earth itself is upended, and the heavy industrial use of the land precludes other beneficial uses by another cotenant and constitutes an exclusive occupation of the land.

Strong evidence of how Kentucky’s highest court would and should view the question of whether a cotenant can surface mine for coal in such as way as to dedicate the land to that use and destroy the very corpus of the joint estate, is found in the timber cases cited above. Under the rule and the logic of those cases, if the severance of a tree from the remainder of the realty is considered such destruction as to constitute waste, how else could the Court view the upending of the entire property in support of the extraction of minerals from beneath the surface of the land, except as waste. Burt and Brabb Lumber Co. v. Clay City Lumber Co., 111 Ky. 725, 64 S.W.652 (1901) The logic of the Burt Court finding an attempted conveyance of timber rights to be inconsistent with the goal of the common and statutory law to "carefully protect owners of land in their right to preserve it as they may desire" is equally compelling here. Id. at 653.

To the extent that Taylor v. Bradford is viewed as standing for the proposition that a joint tenant may mine coal by surface methods even to the extent of materially destroying the land surface during the mining, it should be viewed as an aberration in the law of cotenancy and a departure from the Nevels, Burt and other decisions constraining the attempted conveyance of excusive rights to use of joint lands. Taylor, decided in 1951, is distinguishable as the product of an era in which mineral interests were favored over the correlative rights of the surface owner, See: Buchanan v. Watson, 290 S.W.2d 40 (Ky. 1956), and in which those mineral interests were expanded significantly beyond the rights actually conveyed by grantors to the mining companies. See: Ward v. Harding, 860 S.W.2d 280 (Ky. 1993). The inconsistency of surface mining with the rights of non-consenting surface landowners to use of the surface was noted by the Court:

With the advent of equipment capable of moving massive amounts of earth, the controversy took on a new dimension. As technology progressed, mineral owners and their successors in interest acquired the capability of removing previously inaccessible or economically unfeasible coal by means of strip mining or other mining methods which caused profound disturbance of the surface. The issue which then emerged was whether or to what extent, and with or without compensation for damages, the mineral owner was entitled to destroy the surface to extract the coal. This Court's decision in Buchanan v. Watson, Ky., 290 S.W.2d 40 (1956), soon provided the answer. Purporting to rely upon the doctrine of stare decisis, the Buchanan Court stripped the landowner of any right to restrict the mining method and rendered him a virtual tenant on his land.

Ward, supra, at 283.

In overruling Buchanan, the Ward Court made clear how the court would in a more temperate era view the proposition that a cotenant could destroy (or lease to another to destroy) the land surface, destroy or remove all vegetative cover including timber, and exert such an exclusive use of the land as attends area surface mining, and still remain true to the obligations that attach to a cotenant with respect to the rights of other cotenants.

To the extent that Taylor v. Bradford is viewed as standing for the proposition that a joint tenant may mine coal by surface methods even to the extent of materially destroying the land surface and removing all standing timber without liability as is expressly sanctioned under the lease to Winn, the Taylor decision should be viewed as an aberration in the law of cotenancy, as was the Buchanan decision in the law of deed construction.

The State of Virginia, from which the Commonwealth devolved and from whence the body of common law developed, squarely faced and rejected the premise that majority cotenants could lease land to be strip mined without the consent of all cotenants. In the case of Chosar Corporation v. Owens, 370 S.E.2d 305 (Va. 1988) the Court was presented a similar fact situation, in which 85% of the owners of an undivided interest in a 61-acre tract of land executed a lease to mine. In addressing whether the mining of coal without the consent of all cotenants constituted prohibited waste, the Court reviewed the common law and determined that "the extraction of coal from the Willis tract is a material and continuing destruction of the very substances of the mineral estate[,]" and that '[t]he consenting cotenants had no right to remove coal from the common property without the consent of Owens." Under the logic of Chosar and the other cases cited herein, this tribunal should determine that Rapid Energy Inc., did not meet the burden of demonstrating a right of entry and a right to conduct surface coal mining operations (including attendant timber removal) through the lease of 9/10 undivided interest holders.

Under the logic of Chosar and the other cases cited herein, the lease from 9/10 undivided interest holders to Winn did not meet the burden of establishing a sufficient right to do those things authorized in the lease, including entry onto the land, destruction of the land surface, all standing timber and all structures, without liability, and removal of coal by surface mining methods.

The Winn lease, granting to a lessee the exclusive right to destroy the entire surface of the land and all timber and improvements thereon without liability, constitutes an improper appropriation of the common property for the sole use of the Lessor-cotenants, 20 Am.Jur.2d Cotenancy and Joint Ownership 42, p. 141; and effects an actual and constructive ouster. MCI Mining Corp. v. Stacy, 785 S.W.2d 491 (Ky.App. 1989). The attempted conveyance to Winn the power to unilaterally destroy standing timber and the exclusive right to destroy the entire land surface and all improvements thereon without liability, is beyond the power of the lessor-cotenants and constitutes improper waste, ouster and conversion of joint property to sole and exclusive use. In this instance, the sweeping grant of rights to Winn violates the obligations of the lessor-cotenants respecting their nonconsenting cotenant, and the offending lease should be voided.

CONCLUSION

WHEREFORE, the Plaintiffs, Billy W. Kirtley and Sue Kirtley, respectfully request that this Court grant them summary judgment against the Defendants, finding that the lease is void inasmuch as it proposes to authorize timber and coal removal in a manner that constitutes prohibited waste, ejectment and ouster of the Plaintiffs, and purports to convey rights to exclusive use of the land and appropriation of timber that are beyond the rights possessed by the cotenants who were parties to the lease; and for any and all other relief to which Plaintiffs may appear entitled.

Respectfully submitted,

_________________________

Daniel N. Thomas

THOMAS & ARVIN

1209 S. Virginia Street

P.O. Box 675

Hopkinsville, Kentucky 42241-0675

NOTICE OF HEARING

PLEASE TAKE NOTICE that the foregoing Plaintiffs' Motion for Summary Judgment will be brought on for hearing before Judge Jernigan, Muhlenberg Circuit Court, on January 16, 2004 at 1:30 p.m., or as soon thereafter as counsel may be heard.

CERTIFICATE OF SERVICE

The undersigned hereby certifies that the foregoing Plaintiffs' Motion for Summary Judgment and Notice of Hearing has been served upon Defendants by placing a true and accurate copy of said Motion in the United State Mail, postage prepaid, transmitted by facsimile, or hand delivered to the following:

Mr. William R. Thomas, Esq.

Corbin & Thomas

33 East Broadway

Madisonville, Kentucky 42431

Attorney for both Rapid Energy, Inc., and

R&L Winn, Inc.



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