Colorado § 34-48-106 - Security for mining under surface.

§ 34-48-106. Security for mining under surface.

When the right to mine is in any case separate from the ownership or right of occupancy to the surface, the owner or rightful occupant of the surface may demand satisfactory security from the miner, and if it is refused, he may enjoin such miner from working until such security is given. The order for injunction shall fix the amount of bond.

Source: L. 1874: p. 188, § 12. G.L. § 1822. G.S. § 2408. R.S. 08: § 4217. C.L. § 3299. CSA: C. 110, § 189. CRS 53: § 92-24-6. C.R.S. 1963: § 92-24-6.

ANNOTATION

Law reviews. For article, "The Interest of Landowner and Lessee in Oil and Gas in Colorado", see 25 Rocky Mt. L. Rev. 117 (1953).

Party removing minerals responsible for damages caused by negligence. Failure of a surface owner to exact security as a condition precedent to removing the minerals from his property does not release the parties removing such minerals from the payment of damages occasioned by their negligence. Campbell v. Louisville Coal Mining Co., 39 Colo. 379 (1907).

This section gives surface owner rights in addition to previous equitable rights. Barker v. Mintz, 73 Colo. 262, 215 P. 534 (1923).

Surface owner is not obliged in the first instance to invoke this section. Although this section furnishes to the surface owner a right in addition to his previous equitable rights, he is not obliged in the first instance to invoke it; but when the owner of the mineral right is willing to, and does, furnish a prescribed bond to save the surface owner harmless, ample relief is afforded to the latter. Whiles v. Grand Junction Mining & Fuel Co., 86 Colo. 418, 282 P. 260 (1929).

Court by its general equity powers, as well as in proceedings under this section, has power, if necessary, to provide for security for the payment from time to time to the surface owner of all damages which may accrue to him. Barker v. Mintz, 73 Colo. 262, 215 P. 534 (1923); Whiles v. Grand Junction Mining & Fuel Co., 86 Colo. 418, 282 P. 260 (1929).

Reservation of minerals in deed does not imply right to injure surface unless such right is made clear and expressed in terms so plain as to admit of no doubt. Evans Fuel Co. v. Leyda, 77 Colo. 356, 236 P. 1023 (1925); Victor-American Fuel Co. v. Wiggins, 746 P.2d 58 (Colo. App. 1987).

Right to work mines as to injure surface by removing its subjacent support cannot be claimed by custom, a custom to that effect being unreasonable, repugnant to, and inconsistent with existing law. Evans Fuel Co. v. Leyda, 77 Colo. 356, 236 P. 1023 (1925).

Right to surface support, in absence of express or implied waiver, is absolute right, and the owner of the surface estate has the right to demand this support even if, to that end, it becomes necessary to leave every foot of coal untouched under the estate, unless the subjacent owner gives security for damages under this section. Evans Fuel Co. v. Leyda, 77 Colo. 356, 236 P. 1023 (1925); Kirchof v. Sheets, 118 Colo. 244, 194 P.2d 320 (1948).

Court must consider value of surface land when making condemnation award. In an action to adjudicate interest in a condemnation award, where the trial court gave recognition to the ownership of the surface of the land in the determination of the value of gravel deposits under the surface, by taking this value into account in determination of the value of the mineral rights, the trial court reached a result consistent with that intended by this section. United States v. 1,253.14 Acres of Land, 455 F.2d 1177 (10th Cir. 1972).

Language of the deed providing that holder of mineral rights pay holder of surface rights fifteen dollars per acre of the surface so "used" cannot be said to reserve clearly and with certainty the right to destroy the surface by strip mining. Victor-American Fuel Co. v. Wiggins, 746 P.2d 58 (Colo. App. 1987).