Williams v. Hay , 120 Pa. 485 ( 1888 )

Opinion,

Mr. Justice Paxson :

It is settled law in this state that where one person owns the surface and another person owns the coal or other minerals lying underneath, the under or mineral estate ovres a servitude of sufficient support to the upper or superincumbent estate. This principle has no application where the same person is the owner of both estates, nor does it apply where by the contract between the parties they have covenanted for a different rule. Like any other right, the owner of the surface may part with the right to support, by his deed or covenant: Jones v. Wagner, 66 Pa. 429; Horner v. Watson, 79 Pa. 242; Coleman v. Chadwick, 80 Pa. 81; Scranton v. Phillips, 94 Pa. 15; Carlin v. Chappel, 101 Pa. 348.

The defendant below contended that as to the tract of 241 acres the right to surface support was waived by the terms of the deed from W. J. Baer conveying the surface and reserving the right to the underlying coal. The words of the deed relied upon are as follows“Provided, however, that the said W. J. Baer, his heirs and assigns, in mining and removing the coals, iron ore, and minerals aforesaid, shall do as little damage to the surface as possible.”

It was urged that this language implies that some damage would necessarily ensue to the surface in mining the coal. But an absolute right to surface support is not to be taken away by a mere implication from language which does not necessarily import such a result. The owner of the coal had certain surface rights which were indispensable to the carrying on of his mining operations, such as the right to go upon the surface to make explorations for the minerals beneath, and bore holes, sink shafts, drifts, etc., and the right to make roads and erect structures for taking out the coal. Hence it is a fair construction of the deed to say that in doing these things as little damage was to be done to the surface as possible. The provision referred to covers these matters, and as we have a subject to which it directly applies, it would be a strained interpretation of the deed to hold that it was intended to take away the right of surface support.

We are unable to see any force in the suggestion that the action should have been trespass instead of case. A technical objection of this nature comes with little force after á trial upon the merits, especially in cases where the party making it has received no injury thereby. Aside from this, the injury charged in the narr was of a purely consequential nature, being the subsidence of the surface, the result of not leaving sufficient props to support it.

The objection that the action would not lie against Mrs. Williams, because she was a married woman, need not be discussed, for the reason that the court below allowed an amendment by which her name was stricken from the record and the judgment allowed to stand against her husband alone. This amendment was properly allowed.

We are unable to see how the recovery in the first suit, No. 47 August Term 1883, can be set up as a bar to this action. An examination of the narr in each case does not show them to be for the same cause of action. On the contrary, they refer to different portions of the property.

The remaining assignments do not require discussion.

Judgment affirmed.