Penman v. Jones , 256 Pa. 416 ( 1917 )

Opinion by

Mr. Justice Potter,

The plaintiff brought this action to recover damages for breach of contract by the defendant, in failing to carry out his agreement to purchase from plaintiff a certain lot of ground, known as lot No. 21, in block No. 55, in the City of Scranton. The lot is underlaid with coal, and defendant agreed to purchase it only upon condition that he should be assured of the right of surface support. He refused to accept the deed tendered by plaintiff, on the ground that it does not appear that plaintiff is entitled to surface support of the lot, and, therefore, cannot convey any such right. Whether or not plaintiff has the right of surface support in the land, is the question in controversy. The determination of this question depends upon the proper construction of the language of certain deeds. As the facts were not in dispute, they were agreed upon -by counsel, and the case was sent to a referee. He reached the conclusion that the plaintiff had the right to surface support for his land, and was in position to make valid conveyance to the defendant in strict accordance with the articles of agreement. Exceptions to the report were overruled both by the referee and the court below, and the report was confirmed, and judgment in favor of the plaintiff was entered. Defendant has appealed.

It appears from the record that in 1873, and prior thereto, the Lackawanna Iron & Coal Company owned in fee a tract of land, which included, inter alia,' the lot which plaintiff agreed to sell'to defendant; in that year, it conveyed the lot in question to William Matthews, excepting and reserving to the grantor, its successors and assigns, “All the coal and minerals beneath the surface of, and belonging to said lot, with the sole right and privilege to mine and remove the same by any subterranean process incident to the business of mining, without thereby incurring, in any event whatever, any liability for injury caused or damage done to the surface of said lot, or to the buildings or improvements which now are or hereafter may be put thereon, provided, that no mine or air shaft shall be intentionally opened, or any mining fixtures established on the surface of said premises.” By mesne conveyances, all the rights of William Matthews in and to the lot, Avith its appurtenances, have become and are now vested in the plaintiff, T. P. Penman.

In 1891, by deed duly recorded, the LackaAvanna Iron & Coal Company conveyed to the Lackawanna Iron & Steel Company, all the coal and minerals beneath the surface of plaintiff’s lot and other lands belonging in part to it, the said LackaAvanna Iron & Coal Company, with the appurtenances, together Avith the right to mine and remove the coal. But the deed contained no provision that the coal could be removed without liability for damage done to the surface.

In 1897 the coal company made a further conveyance to the steel company, confirming the title of the grantee to all coal and minerals then and theretofore owned by it in LackaAvanna County, together with “all the rights of said coal company to mine and remove the said coal and minerals herein conveyed by any subterranean process incident to the business of mining.”

In the year 1915, the coal company conveyed to the Scranton Trust Company, inter alia, all its right, title and interest in and to the said lot No. 21, in block No. 55, and in the coal and minerals underlying the same, as follows : “All and every the real estate or interest of any kind or nature in real estate, lands, tenements or hereditaments, situated in the County of Lackawanna, State of Pennsylvania, which it, the said party of the first part, now hath, owns, possesses, or enjoys.” The Scranton Trust Company then in turn conveyed to the plaintiff the right or privilege of surface support for lot No. 21. This deed, after reciting thé conveyance of said lot from the Lackawanna Iron & Coal Company to Matthews in 1873, without the right of surface support, the conveyance of the minerals in 1891 to the Lackawanna Iron & Steel Company, “without however granting or conveying to the Lackawanna Iron & Steel Company the right to let down, injure or destroy the surface,” and, also the conveyance from the coal company to the trust company of “all right, title and interest” in lot No. 21, “remised, released and quitclaimed” to the plaintiff, lot No. 21, with the further recital that it was “the purpose and intent of this indenture to vest in the said party of the second part, his heirs and assigns, inter alia, the right or privilege of surface support hitherto withheld by the Lackawanna Iron & Coal Company, the predecessor in title to the party of the first part, and to release and discharge the party of the second part, his heirs and assigns, from any and all waivers of said right of surface support, so far as it, the said party of the first part, has the legal right to vest the said right of support and to release and discharge the said party of the second part from the effect of said waiver, and without warranty on the part of the party of the first part, that this indenture vests in the party of the second part, his heirs and assigns, any right, title or interest whatsoever.”

It thus appears that, in so far as the lot in question is concerned, the coal company conveyed the surface to one party, reserving the right to remove the coal without liability for damage to the surface, and some eighteen years afterwards it conveyed the coal to another party, but did not with it transfer or convey the right to remove the coal without liability for injury to the surface. If this fight to remove the coal without supporting the surface remained in the coal company, after it had parted with the ownership of the coal, such right was, by subsequent conveyances made for that purpose, duly relinquished, transferred and quitclaimed to the plaintiff.

The law is firmly established in Pennsylvania that, in the absence of express waiver or the use of words from which the intention to waive clearly appears, the grantee of minerals takes the estate subject to the burden of surface support. Thus in Jones v. Wagner, 66 Pa. 429, it is said, following the English rule, that (p. 434) “where there is no restriction or contract to the contrary, the subterranean or mining property is subservient to the surface to the extent of sufficient supports to sustain the latter, or, in default, there is liability to damages by the owners or workers of the former for any injury consequent thereon to the latter.” On the same page it is further said, quoting from Rogers on Mining, “That if an owner of lands grant a lease of the minerals beneath the surface with power to work and get them in the most general terms, still the lessee must leave a reasonable support for the surface, and so, conversely, where the minerals are demised and the surface is retained by the lessor, there arises a prima facie inference at common law, upon every such demise, that the lessor is demising them in such a manner as is consistent with the retention by himself of his own right of support.” This language was quoted with approval in Horner v. Watson, 79 Pa. 242, 251. These cases were followed in Coleman v. Chadwick, 80 Pa. 81, where a grant of all the coal under a certain tract carried with it “all the privileges necessary for the convenient working of the same,” and “all rights and privileges incident or usually appurtenant to the working and using of- coal mines,” and it was said by Mr. Justice Gordon (p. 87) that “when one owning the whole fee, grants the minerals, reserving the surface to himself, his grantee is entitled only to so much of the minerals as he can get Avithout injury to the super-incumbent soil, and that the plea of a custom to the contrary could not be entertained, because such a custom Avould be unreasonable, and hence wanting in an element essential to its validity.” In Williams v. Hay, 120 Pa. 485, it was said by Mr. Justice Paxson that the right to surface support (p. 496) “is not to be taken away by a mere implication from language which does not necessarily import such a result,” and it Avas accordingly held that the right to surface support is not affected by a clause providing that the owner of the coal in mining and removing it should “do as little damage to the surface as possible.” In Robertson v. Youghiogheny River Coal Co., 172 Pa. 566, it' was said by Mr. Justice Williams that (p. 571) “a sale of all the coal under a tract of land is not in terms or by necessary implication a release of the right to surface support any more than the sale of the first story of a building, two or more stories in. height, would be a release of the floor so sold from its visible servitude- to the remainder of the building. The release must be in either case by express words or by necessary implication.” In Youghiogheny River Coal Co. v. Hopkins, 198 Pa. 343, a company operating under a lease from defendant was sued by the owner of the surface for injuries thereto and judgment was recovered against it, whereupon suit was brought against defendant to recover the amount of the judgment under a clause in the lease which provided that (p. 347) “All damages direct or consequential and claims therefor, resulting from the mining and removal of said coal in the doing of any and all the matters and things thereinbefore described are hereby waived and relinquished by the said party of the first part, provided the party of the second part takes all ordinary precautions usually taken in mining and removing coal.” It was held that this clause did not grant to the company a release from its obligation to support the surface.

In Youghiogheny Coal Co. v. Allegheny National Bank, 211 Pa. 319, it was said by Mr. Justice Mestrezat (p. 324): “If the owner of the whole fee conveys the coal in the land in general terms, as in this case, retaining the residue of the tract, the purchaser acquires the coal with the right to mine and remove it, provided he does so without injury to the superincumbent estate. His estate in the coal, like that of the owner of the surface, is governed by the maxim sic utere tuo ut alienum non laedas. The owner of the surface is entitled to absolute support of his land, not as an easement or right depending on a supposed grant, but as a proprietary right at common law: Carlin & Co. v. Chappel, 101 Pa. 348; 2 Snyder on Mines, Sec. 1021.”

In the light of the foregoing authorities, it is clear that there is nothing in the language of the deed from the Lackawanna Iron & Coal Company to the steel company, which can be regarded as indicating an intention to convey the minerals free from liability upon the part of the purchaser to support the surface in their removal. No such privilege follows from the mere conveyance of coal, machinery, fixtures, tools, etc., with the “hereditaments and appurtenances” belonging thereto'. The conveyance of “all the estate, right, title, interest, benefit, property, claim and demand whatsoever” of the grantor, is properly referable to the subject-matter of the grant, to wit, the coal conveyed, and does not necessarily amount to a waiver of the right of the grantor to insist upon support being left for the surface. This conclusion is strengthened by reference to other provisions in the deed. Some sixty-two tracts were conveyed in the same instrument, and, with, respect to only one of them is the right given to remove the coal “without thereby incurring in any event whatever any liability for injury caused or damage done to the surface of said land or to the buildings or improvements which now are or may hereafter be put thereon.” The insertion of such a clause in the conveyance of one particular tract and its exclusion in conveying all of the other tracts, brings the transaction within the maxim expressio unius est exclusio alterius, and indicates an intention, upon the part of the grantor, not to waive the right of support as to other lots. In Graff Furnace Co. v. Scranton Coal Co., 244 Pa. 592, the same deed from the Lackawanna Iron & Coal Company to the Lackawanna Iron & Steel Company, which is now before us, was under consideration. In that case it appeared that the coal company granted certain property, reserving the coal and the right to remove it, without liability for surface support. A subsequent purchaser of this tract brought suit against the steel company for damages for injury to the surface. It was held there could be no recovery because no right to surface support existed in plaintiff. In that case the exact question now before us was hot presented or decided; we there said, speaking through our Brother Mestrezat (p. 596) : “We do not deem it necessary to determine whether the grant to the steel company released or waived the right of surface support.......It is wholly immaterial whether the common grantor of the parties holding respectively the surface and the coal still retained the right of surface support or whether it has passed to the owner of the coal. The important fact is that it never passed to the plaintiff nor its predecessors in title.”

In the present case, whatever right the coal company retained to interfere with the surface support was relinquished by it to the Scranton Trusi^ Company, and from it passed to the plaintiff, by deed which recited the former conveyances, and expressed the intention to restore to the owner of the land the “privilege of surface support hitherto withheld by the Lackawanna Iron & Coal Company.” While the deed to the Scranton Trust Company does not appear in full in the record, the clause quoted purports to convey all real estate, or interest therein, of every kind situated within the county, and the agreement of facts, in quoting from the deed from the trust company to plaintiff, contains a recital that the coal company conveyed to the trust company “all its right, title and interest in the aforesaid Lot No: 21.”

The Scranton Coal Company has no direct interest in this case, but considering that its rights might be affected by the conclusion herein reached, it presented a brief, and has been represented by counsel, who, among other points raised, have contended that, if the deed from the coal company to the steel company did not pass to it the waiver of liability for failure tp support the surface, which had been retained by the coal company, then the deed to the trust company was also insufficient to release ‘or reconvey that waiver to- the owner of the surface. But this contention overlooks the fact that the law gives to the owner of the surface the right to subjacent support of his land in its natural condition, as a result of, and as an incident to, that ownership. The right of surface support is a natural right of property which is inherent in such an estate; while in the conveyance of coal, it is thoroughly settled that the right to remove it without liability for damage to the surface is not a fundamental or necessary incident. In the present instance, the acceptance by Matthews of the deed containing the stipulation that the coal company should retain the right to remove the coal without liability for injury, was merely a waiver by him, as purchaser of the surface, of his natural right or easement. This stipulation cannot properly be regarded as the creation of another easement appurtenant to the mineral estate, which would pass merely with its conveyance. The stipulation for the right to remove the coal without liability for injury to the surface did not have the effect of retaining in the grantor any interest outside of the coal, in the land which was being conveyed. It did not authorize the grantor to do anything upon the land of the surface owner, but its effect was merely to absolve the owner of the coal from responsibility for injurious consequences which might follow the removal of the coal. The stipulation may fairly be considered as being a license to do the desired act, that is, to let down the surface, if necessary, in order to remove the coal. It was authority to do an act affecting the land, without, however, conferring upon the licensee any estate in the land. An easement is always an estate in the land. But “a license properly passeth no interest, nor' alters or transfers property in anything, but only makes an action lawful, which without it had been unlawful”: Thomas v. Sorrell, Vaughan’s Bep. (Eng.), 330, 351. It is distinguished in this from an easement: Jones on Easements, 64, 65. The only effect of the stipulation in this case, would be to make lawful the letting down of the surface, which otherwise would be unlawful. Further than that, it could not go. Its force would be spent with the removal of the coal. The.license in this case being coupled with a grant of the coal, or rather with the reservation of the coal, was irrevocable by the owner of the surface, and was assignable by the licensee. Beyond question the coal , company had power to assign to the steel company its right to remove the coal without liability for injury to the surface, but it did not see fit to do so. Having retained this right when it sold the coal, the coal company was at liberty thereafter to abandon the right, or to transfer it directly or indirectly to the owner of the surface. It was not something which fastened itself upon the mineral estate, and became impossible of detachment. The coal company was under no obligation to convey to the steel company all the rights which it possessed with respect to the removal of the coal. The language of its deed to the steel company shows that it took pains not to include the right of removal without liability for injury to the surface, and it would be a strained construction indeed which wóuld hold that a valuable property right passed as an appurtenance, when the transfer of any such right was. carefully avoided in describing the principal thing conveyed. The right in question was valuable in connection with the large tract of land held by the coal company, and this fact was probably taken into account, both in the sale of surface and in the sale of the coal. The latter presumably sold for a less price than it would have brought had the right to remove it without leaving support for the surface been included. If, as was stated upon the argument, the coal company retained a considerable-amount of surface land when it disposed of the coal, it was manifestly to its interest to retain for itself, and for the benefit of future purchasers of lots, the right of surface support.

We are clear that no easement appurtenant to the mineral estate was created by the terms of the-stipulation in the deed to Matthews, in 1873. The right to remove the coal without liability for injury to the surface, which the coal company retained was something which it could retain or dispose of, as it saw fit. It was not something which must pass with a conveyance of the coal, contrary to the desire and intention of the grantor, the coal company. The rights of the steel company are limited and defined by the language of the deeds to it. We find nothing therein, Avhich, under the established rules of law, is sufficient to authorize the removal of the coal without liability for injury to the surface. We agree with the conclusion reached by the referee and confirmed by the court- below.

The judgment is affirmed.