Request By:
Lloyd R. Edens
Law office of Jacob P. Cline III
P.O. Box 326, Courthouse Square
Pineville, KY 40977
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Dale D. Brodkey, Assistant Attorney General
This opinion is in response to your letter of January 8, 1979 in which you requested an interpretation of KRS § 381.755(1). This section states:
Upon application of the owner of property upon which is located an abandoned grave or cemetery or whenever the fiscal court of any county deems it to be in the best interest of the county to remove and relocate any such grave or cemetery the court may issue an order or resolution authorizing such removal or relocation.
Your question is whether "the mineral owner [has] the right to make such an application where the mineral interest has been severed by a broad form deed . . . and the removal of the abandoned cemetery or graves is necessary in order that the mineral owner's lessee may mine the property by the surface mining method."
The answer to your question turns on the meaning of the phrase "the owner of property upon which is located an abandoned grave or cemetery" in KRS § 381.755(1).
By Kentucky law, "All words and phrases shall be construed according to the common and approved usage of language. . .," KRS § 446.080(4). The phrase we are concerned with, in its ordinary meaning, would refer to the ground in which the graves or cemetery were placed and the person or persons who had title to the surface. It is most unlikely that the General Assembly in enacting this statute intended that the phrase be interpreted in a technical, legal sense, distinguising different types of property and ownership rights.
In determining the rights of mineral owners with respect to the property on which are found abandoned graves or cemetery, we need to turn to the role of broad form deeds in Kentucky. Such deeds have the effect of severing the mineral estate from the surface estate.
Watson v. Kenlick Coal Co., Inc., 498 F.2d 1183 (6th Cir. 1974), cert. denied 422 U.S. 1012 (1975). Kentucky courts have held that under a number of these deeds the owner of the minerals has the right to strip mine the land, in effect destroying the surface.
Buchanan v. Watson, 290 S.W.2d 40 (Ky. 1956);
Kentland-Elkhorn Coal Co. v. Charles, 514 S.W.2d 659 (Ky. 1974);
Peabody Coal Co. v. Pasco, 452 F.2d 1126 (6th Cir. 1971). In some cases, the statement in the deed that the mineral owner has the right to use the surface "in any manner deemed necessary or convenient" has been interpreted that "the mineral owner's right to use the surface in removal of minerals would be superior to any competing right of the surface owner."
Peabody Coal Co. v. Pasco, supra at 1132. However, although the mineral owner has rights to use the surface and even to destroy it for strip mining, thus having the dominant estate over the surface, it has never been held in Kentucky that the mineral owner owns the surface estate.
The owner of mineral rights would not have the kind of ownership rights required by the abandoned cemetery statute. This means that the owner of mineral rights is not able to make an application to the fiscal court for removal and relocation pursuant to KRS 381.755(1).
If we can be of further assistance, feel free to contact this office.