The opinion of the court was delivered, February 9th 1871, by
Thompson, C. J.— The piece of ground out of which the controversy in this case has arisen, formerly belonged to John Ormsby’s estate, and in the partition of that estate in November 1855, the minerals in, and the surface of the land were separated and made to constitute two separate and distinct properties or estates, without any restriction, limitation or servitude imposed on either, and were so allotted among two of Ormsby’s heirs. The plaintiff claims title to the surface through the heir to whom it was allotted, and so do the defendants to the minerals from another heir to whom they were allotted.
The question in the court below and here, is whether the latter have by their unrestricted title, the right to mine and take out all the coal underlying the surface, without liability for injury thereto, or to buildings and improvements thereupon by subsidence or otherwise. The learned judge below reserved the point and submitted to the jury the question of injury.; to what amount, and whether it arose from unskilful or negligent mining in not leaving sufficient pillars or props in the mine to sustain intact the surface. On this question the jury found for the plaintiff, and at a subsequent day the court ruled the reserved question also in his favor and entered judgment on the verdict. From this statement it will appear, that the only negligence or unskilfulness at all attributable to the defendants, if any, arose from not leaving sufficient pillars of coal or supports to sustain the surface, and this they undoubtedly did not, most probably under the belief that all the coals in the mine belonged to them by virtue of their purchase and title. - This was certainly true with the exposition of such a right given by Baron Parke in Harris v. Ryding, 5 M. & W. 60 : “I do not mean to say,” observed that able judge, “that all the coal does not belong to the defendants, but they cannot get it without leaving proper supports.”
*434The right of supports, ex jure naturae, which the owner of the soil is entitled to receive from the minerals underneath, has, within comparatively a few years, received much attention in the courts in England, and the rule deducible from the cases in all the courts, the House of Lords, Exchequer and Queen’s Bench, is, that 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. This is fully supported by Harris v. Ryding, 5 M. & W. supra, determined at Easter Term 1839, in the Exchequer; Humphries v. Brogden, 1 Eng. Law & Eq. 251 (1850), in the Queen’s Bench before Lord Campbell, C. J., and Patteson, Coleridge and Erie, JJ. The whole question was there discussed most learnedly and ably by the Lord C. J., and the same result arrived at as had been in the Court of Exchequer, supra, and in the case of The Earl of Glasgow v. The Hurlet Alum Co., House of Lords in 1850, 8 Eng. Law and Eq. 13. There are many other cases referred to in the English courts to the same effect, by Rogers on Mining, p. 455, et seq. Among them are Rowbotham v. Wilson, 8 H. L. Ca. 348; Pennington v. Gallard, 9 Exch. 1, for the principle stated by the learned author at page 467: “ 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 primá 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.” These citations prove two things, viz., that the owner of a mineral estate, if the law be not controlled by the conveyance, owes a servitude to the superincumbent estate, of sufficient supports; consequently the failure to do so is negligence, and so may be declared upon: Humphries v. Brogden, supra.
A usage to mine without the observance of this duty by defendants must have been so ancient and uniform in the region in which the property is situated, as to amount to a custom or usage capable of controlling the rule of the common law cited above, and of becoming the law itself. One element of such a custom would be, that it is so ancient “ that the memory of man runneth not to the contrary.” This could not be, and was hardly pretended of the locality in question. Nor is it likely that in a business like mining bituminous coal, found only in the western counties of the state, there ever was any rule there other than that which would result from convenience.
*435As to the house in question damaged, it undoubtedly had a right to supports as incident to the ground on which it stood. What might be the consequence of building in an unreasonable manner, taking into view the mining rights beneath, on a question of the sufficiency of the supports, does not arise in this case and need not be decided.
We have no case strictly of authority in our books, nor do I find any in the books of our sister states. In most of them but little subterranean mining exists, and in others the question has not presented itself for adjudication. In none of the cases cited by the learned counsel from our state reports, is the question decided or intentionally touched; we therefore must rule the point for ourselves for the first time. The English cases referred to, and others which might be referred to, emanate from great ability, and from a 'country in which mining, its consequences and effects, are more practical, and the experience greater, than in any other country of which we possess any knowledge. We think it safe, therefore, to follow its lead in this matter, and hold that in the case in hand, the recovery was right, predicated as it was of the want of sufficient supports in the mine to prevent the plaintiff’s ground, house and orchard, from injury by subsiding into the cavity made in the earth by the removal of the coal. The upper and underground estates being several, they are governed by the same maxim which limits the use of property otherwise situated, sic utere tuo et alienum non loedas. We have no doubt but all the evils deprecated by the adoption of this rule will disappear under regulations adapted to each case of severance of the soil from the minerals. Contract may devote the whole minerals to the enjoyment of the purchaser, without supports, if the parties choose. If not, the loss by maintaining pillars or putting in props will necessarily come out of the value of the mineral estate. If at any time the public necessities may demand the pillars to be removed for fuel, we may safely assume that the same necessity will provide some rule which will be satisfactory in such a crisis. We think the case was well decided below, and that the judgment must be affirmed.