Practicing In The Past, Today
By: John E. Rhine
Anyone who practices law in support of an industry needs to know the fundamentals of how that industry works. Maritime lawyers must know the shipping industry, Entertainment lawyers must understand the peculiarities of that business. Coal lawyers have an added aspect-they occasionally need to know how the coal industry operated long ago. It is commonplace for a coal lawyer to be called upon to interpret or amend a lease, deed or contract provision which was written a century ago but still lives on governing the actions and options of the parties bound by it. Just what did the parties have in mind when, for example, they created a right-of-way before trucks were invented? Of course, the ISBA Mineral Law Section Council newsletter cannot bring you The History of Coal Mining in Illinois, but here are a few interesting historical notes as well as a few facts, interesting or not, which demonstrate the point.
No state can claim an earlier coal history than Illinois. The first discovery of coal in America by Europeans was made in what is now Illinois by Louis Joliet and Jacques Marquette in 1673. Joliet located "Charbon de terra" near the present town of Utica. [1] Marquette's journal includes a map showing an outcropping of coal near the same spot.[2] LaSalle's chaplain, Father Louis Hennepin, reported an Indian "cole-mine" above Fort Creve-Coeur in his report to William III of England, published in 1689.[3] It was not until 1701 that Huguenot settlers discovered coal in the eastern U.S., on the James River and the anthracite deposits in Pennsylvania were not discovered until a half-century later.
Until the time of the American Revolution, the abundance of wood and the paucity of industry limited the demand for coal. Small amounts of coal were imported to the colonies from England. With the revolution, the Americans looked elsewhere and coal was supplied from Pennsylvania and from that part of the Old Northwest Territory captured by George Rogers Clark, which became known as the Illinois Territory. During the Revolutionary War, coal was used to manufacture shot, shell and other war material.
Coal has always been particularly important to the economy of southern Illinois. There is an early written record of regular barge shipments of coal to New Orleans in 1810 from the Brownsville settlement on the Big Muddy River in Jackson County. Large quantities, at least by pre-railroad standards, were mined in the early 1800s in St. Clair and Madison Counties and sold in St. Louis by the bushel. The 1840 census shows men employed in coal mines in the following southern Illinois counties: Edwards, Gallatin (including modern Saline County), Jackson, Lawrence, Madison, Perry, Randolph and St. Clair.
Do you think that professional landmen and those coal company lawyers are recent to the Illinois coal scene? A description of the Illinois Territory published in 1820 noted that coal was to be found there, then went on to state that the inhabitants of Illinois included "a medley of landjobbers, lawyers . . . and farmers, who traverse this immense country . . . engaged in all kinds of speculation."[4] In 1840, Forrest Shepherd purchased 2000 acres of coal lands in southern Illinois for the Boston Association for Purchasing Mineral Property in Missouri and Illinois. Shepherd was a lawyer reported to be well acquainted with practical geology and mineral surveying.
Did the Clean Air Act initiate the concern for low sulphur coal? Quality has always been important. Shepherd reported to the Boston Association that the coal underlying the Jackson County lands he purchased in 1840 were selected as "very free from sulphur and earthy impurities" and that Jackson County coal uniformly commanded a higher price at New Orleans because of its quality. This 1836 report to the Journal of Franklin Institute on the coal from Mount Carbon coal mine in Jackson County, Illinois, describes the very same qualities desired today:
This coal combines the qualities of the anthracite with pure charcoal with a remarkable freedom from sulphur, slate, and other impurities, makes an open fire, ignites very easily, and burns with much flame, and a strong heat, producing little smoke, cinder and ashes. These rare qualities render this coal of great value . . . and particularly so, in the production of steam.[5]
The 1855 publication "Statistics of Coal" noted that certain coals in central Illinois were "highly charged with sulphur which confines the use of it principally for household purposes. Boats and other machinery make but little use of it for steam, it being so destructive to grate-bars and boilers."
Many believe that the parties to early mineral conveyances could not have contemplated surface mining. After all, didn't surface mining start when large machinery became available in the 20th century? A year after the end of the Civil War, America's first surface mine opened near Danville, Illinois. Horse drawn plows and scrapers were used to scrape away overburden and the coal was dug out and hauled away in wheelbarrows and carts.
And those union miners? In 1861, almost 20 years before John L. Lewis was born, the American Miners' Association was formed in Belleville, Illinois. It was the first miners' union to extend beyond state borders.
The advent of the railroad enhanced the value of Illinois coal. Early railroad engines burned wood and in fact the Illinois Coal Company built a short railroad from Caseyville to East St. Louis in 1851 to replace ox carts. Its engines burned wood. In 1854, locomotives with boilers capable of burning coal were introduced and the use of coal was greatly expanded. Chicago and St. Louis became railroad hubs, and the ability to easily transport Illinois coal also increased the demand for it. The rail era expansion of coal demand led to the construction of the large coal mine we are familiar with today. Coal mines opened in the late 19th century were surprisingly advanced, even compared to today's mines, and herein lies a few examples of the occasional relevance of coal mining history to present day practice. One cannot assume that all modern mining practices are in fact, modern.
Many attorneys in Illinois erroneously believe that longwall mining is a new technique. Robert Beck, a law professor at Southern Illinois University, in discussing a 19112 waiver of damages for subsidence from coal mining, wrote in 1985, that "it cannot be argued that the mineral owner in 1912 purchased the mineral anticipating use of the longwall method of mining."[6] Citing this article, the Illinois Appellate Court held a 1912 waiver inapplicable to longwall subsidence, stating in its slip opinion, "The deed containing the waiver was executed in 1912, long before the advent of longwall mining." Professor Beck was wrong. It could indeed be argued that the mineral purchaser most certainly contemplated longwall mining. The Illinois Coal Association and the United Mine Workers of America made just that argument as amici curiae, showing that longwall mining which caused certain subsidence had been utilized for over two centuries and had been in use in Illinois since the 19th century. In fact, the Illinois State Geological Survey, the Department of Mining Engineering at the University of Illinois, and the U.S. Bureau of Mines reported numerous longwall mines operating in Illinois in 1912, the year of the waiver. That appellate court slip opinion was ultimately withdrawn and in a companion case opinion, which was published, the court upheld waivers as a defense against common law damages for subsidence.[7] Another court found that longwall mining, at the time of various subsidence waivers dating to 1901, was well known in the United States, and particularly in Illinois, where longwall mining had occurred at least as early as 19874. The court stated:
While these excerpts cover only a small part of the history of underground mining, they suffice to show that any argument that longwall mining was a novelty in this country in the early 1970's is totally baseless. Historically, the longwall mining process, and subsidence associated with it . . . have been inextricable parts of coal mining operations. (Emphasis by the court.)[8]
Other courts also found Beck's factual assumptions in error.[9]
How about those new-fangled conveyor belts that lift coal over highways and go cross country? Recently an operator wanted to construct an overland conveyor belt, and counsel were called upon to interpret a turn of the century right-of-way to "convey" coal across a tract of land. What did the parties have in mind when the right to "convey" was granted? Most likely, one might assume, a railroad, mule train track or a cartway. In fact, conveyor belt systems were used in mining when the grant was made. Tom Robins, with the aid and advice of Thomas Edison, developed a conveyor belt system for a mine where Edison was experimenting with separation techniques and the first Robins Conveyor was installed in 1891. When the parties said "convey," they may well have been thinking about a "conveyor belt." Coal mining was a leading industry in Illinois, and a competitive one. Developments which made them more efficient could not go unnoticed.
To be sure, conveyor belts are a lot better these days and longwall mining is more sophisticated but the holder of a right always "has the right to adapt it to the improvements of the age."[10] Practicing law in support of the coal industry is sometimes more challenging, and more interesting, than other practices because the coal industry is governed in part by law that is ancient and in part by extensive modern regulation. Add to that one additional, if occasional, aspect: ancient facts. Because the coal industry has been so important to the state of Illinois, there are extensive records and resources available to determine what occurred decades ago. There is usually no need to make assumptions about historical coal mining practices. You can look it up.
The Illinois Basin coal industry has thus far survived three major attacks: the development of a more favorable labor climate in the American west, the passage of the Surface Mining and Conservation Reclamation Act (SMCRA) which inordinately impacted eastern coal, and the Clean Air Act which rendered much Illinois Basin coal undesirable. A fourth attack is coming-utility deregulation-which may encourage importation of electricity itself into the midwestern industrial belt and discourage coal-fired generation here, thus reducing one of this state's remaining advantages, low mine to generator transportation costs. Still, Illinois remains the sixth leading coal producing state and the fifth leading consumer of coal. Illinois has more underground reserves than any other state, four times that of Kentucky, and is second in total reserves, behind only Montana.[11] The mineral industry is historically a boom or bust business and there is still plenty of coal history to take place in Illinois.
1. Decouvertes et Etablissements des Francais, I, p. 261. Published at Paris, 1681. 2. Recueil de Voyages. Published by Thevenot in France, 1681. 3. A New Discovery of a Large Country in America. Published by Thwaites in England, 1689, Vol. I, p.
152. 4. A History of America, published 1820, quoted in Illinois Coal Mining Investigations, State Geological
Survey Bulletin 13, 1915. 5. Illinois Coal Mining Investigations, State Geological Survey Bulletin 13, 1915, p. 19. 6. Beck, Illinois Coal Mine Subsidence Law Updated 1985 S.I.U.L.J. 428 (1985). 7. Rocking M. Ranch v. Sahara Coal Company, 217 Ill.App.3d 162, 576 N.E.2d 1120, 160 Ill.Dec. 166
(1991). 8. Culp v. Consol. Pennsylvania Coal Co., 1989 WL 1011553, 1989 U.S. Dist. Lexis 8193, District Court
(W.D. Pa. 1989). 9. See Bell v. Island Creek Coal Co., 722 F. Supp. 1370 (W.D. Va. 1989) and Wells v. American Electric
Power, 48 Ohio App.3d 95, 548 N.E.2d 995 (1988). In Bell, the court noted that insofar as today's
longwall mining was different from historical mining, it was different only in the degree of damage, not the
kind of damage, it causes to the surface. The court stated that the coal operator could "of course, take
advantage of developments in the operation of underground mines which modern technology may make
available. " 722 F.Supp. at 373, quoting Phipps v. Leftwich, 216 Va. 706 at 713, 222 S.E.2d 536 at 541
(1976). The historical existence of longwall mining and other full extract mining is also revealed by old
case law deciding disputes over it. See, e.g. Griffin v. Fairmont Coal Co., 59 W.Va. 480, 53 S.E. 24
(1905), Butterly Co. Ltd. v. New Hucknall Colliery Co. Ltd., A.C. 381, 99 L.T.R. 818 (1909), 1 Law Repts.,
Chancery Div. 37 (1910), Wesley v. Chicago, Wimington and Franklin Coal Co., 221 Ill.App. 427 (1920)
and Cope v. United States Fuel Co., 229 Ill.App. 243 (1922). 10. Diller v. St. Louis, Springfield and Peoria Railroad, 304 Ill. 373 (1922). See also Bell v. Island Creek
Coal Co., preceding footnote. 11. Source: Energy Information Administration, compiled by the National Mining Association in Facts
About Coal, 1996-1997.