delivered the opinion of the court, November 5th 1877.
The rule is well settled that it is not waste in a tenant for life, to work open mines. When not precluded by restraining words, such a tenant may work them to exhaustion. Kier v. Peterson, 5 Wright 357; Neel v. Neel, 7 Harris 323; Irwin v. Covode, 12 Id. 162.
It may be conceded that the term mine, when applied to coal is generally equivalent to a worked vein, for by working the vein, it becomes a mine; it therefore follows that if a mine be opened and worked, the tenant for life may pursue that vein to the boundaries of the tract on which it is found. Here the attempt is made to enlarge the rule, and to pursue it further. It is contended the right to mine is not limited or restricted to the particular tract or body of lands on which the mine had been opened ; but extends to a body of lands entirely separated and removed from the other; that if a vein of the same quality and character extends from the former land, to the latter, it constitutes one mine, although it has never been opened on the latter land. To this conclusion we cannot assent.
If the rule would apply in this case where the parcels of lands are one mile apart, there is no limit to the distance the tenant may pursue it, short of the termination of the vein. If she has the right to open the vein on the distant tract by pursuing it under ground, she would have a right to reach it by sinking a shaft on that tract. If she has a right to the coal, she is not restrained to the one manner of reaching it. Hence it would follow that the tract might be dotted over with openings, when none existed before. Neither tract is appendant nor appurtenant to the other. If she had a life estate in the distant tract only, the fallacy of claiming a right to remove the coal therefrom would be most manifest. The unanswerable reason would be that the mine on that tract had never been opened.
Decree affirmed.