Staff File Photo by Jessica Lowry Tracy McDaniel stands in front of stone on some of her 66 acres of land she lives on atop Fredonia Mountain. The Avery Land Co. owns the mineral rights to her property and is now claiming these rights entitle them to take the stone from her land and make roads in order to take it. She is currently fighting the company in court over her land rights.

A rock-mining dispute that became the first legal challenge to whether mineral rights include the right to mine mountain stone is scheduled to go to trial next week in Sequatchie County.

The case began in December 2004 when George Avery Land sued landowners Harold Lewis and his family. Mr. Land owned mineral rights to the Lewises' 66 acres, but they denied him access to mine rock from the property.

Mr. Lewis' daughter, Tracy McDaniel, said the property deed and mineral rights agreement, drawn in 1966, was intended to refer to oil or coal -- not the surface rocks and those near the surface.

The lawsuit claimed that "the rock is a mineral and our deed wrongly states that the surface rights go with the property," Ms. McDaniel said shortly after the suit was filed. "Well, when you own property, what do you own? The air above the property?"

The rock, known as mountain stone, is popular in homebuilding and is used for fireplaces, landscaping and other construction.

Hamilton County Chancellor Howell Peoples will serve as a special judge in the case beginning Tuesday. The Sequatchie County judge recused himself because of a potential conflict.

On Friday, in a telephone conference with attorneys, Chancellor Peoples denied a motion to rule before the hearing on whether the deed was written in such a way as to allow rock mining.

The Lands' attorney, Steve Greer, asked for the ruling on the right to mine as a separate issue from the method of mining.

The Lewis' attorney, Keith Grant, opposed the request.

"I don't think this is two separate issues," he told the chancellor.

In a previous ruling, Chancellor Peoples said the recent Cumberland Trail State Park rock-mining lawsuit and a Tennessee Appeals Court opinion in it made it clear that, regardless of how rock is classified (as a rock or mineral), the method of its removal and the resulting condition of the property surface after its removal are key considerations.

The state park case was brought after miners tore up a portion of the Cumberland Trail near Soddy-Daisy to remove mountain stone for Florida-based mineral rights owner Lahiere-Hill Inc. After the ruling, the rock miners abandoned mining in the park.