I concur in the reversal of the decree of the Circuit Court of Preston County in this case, but not on the grounds stated in the syllabus, and principally relied upon in the opinion filed by Judge Riley. The mining rights referred to in the opinion are broad, and, in the circumstances of this case, call for a liberal application in the lessee's favor of the privileges conveyed thereby; but, with all this, I do not think they cover the right to take rock, shale and soil from the leased premises and use the same in constructing a fill or road on the premises of another. In my opinion, the mining rights granted were intended to be exercised only on the leased premises. I think rock, shale and soil could have been mined from the leased premises and used to construct fills and roads on said premises, where necessary to mine and market the underlying coal; but I would go no further. In the present instance, only a small amount of earth material was removed from the leased premises; but the principle announced does not make the amount of material used the test. Evidently the test is whether the material can be reasonably used either on or off the premises to serve the purpose for which the premises were leased. This being true, the opinion filed would permit the removal of all available earth material from the leased premises, whatever the result and damage might be, if reasonably necessary to the marketing of the coal. Also, in this case, the earth material was small in amount, and probably transported but a short distance from the leased premises; but *Page 375 on the principle herein announced, I do not see how a line can be drawn between fifty tons removed for a short distance only, and five hundred tons removed for five miles or more, provided the removal is necessary to effect the paramount purpose for which the lease was executed.
I would reverse the decree of the trial court on two grounds. First, no damages were shown to have been suffered by the plaintiff. I concur in the discussion on that point in the opinion filed. Second, the plaintiff stood by and without protest permitted the removal from the leased premises of the rock, shale and soil for which he now claims compensation. In the circumstances of this case, as they are set out in the opinion, it was his duty to protest. Had he done so, the lessee might have procured material necessary for the fill near the tipple from other sources. Considering the amount paid for mining privileges, and other circumstances of the case, the lessee had the right to assume that the terms of the lease under which he was working would be liberally construed in his favor and it was, in my opinion, peculiarly a case where the lessor was called upon to protest. Not having done so, I think he is now estopped from prosecuting the claim here presented.