delivered the opinion of the court,
This is an action on the case. It was brought to recover for the damages done to the lot and building of the defendants in error, by reason of the mining of coal beneath, by the plaintiffs in error. The former owned the surface right of the land, the latter all the coal beneath the surface.
Joseph Fellows was the owner of a larger tract of land, of which the lot in question formed a part, underlaid with coal. While thus the owner in fee, on the 1st of May 1860, he, by contract in writing, agreed to sell the lot on which the alleged damage was sustained to Emily E. Preston. After describing the lot, the contract proceeds: “ Excepting and always reserving all the coal beneath the surface of and belonging to said premises, with the exclusive right to the said Joseph Fellows, his representatives and assigns, to mine and remove the same by any subterranean process incident to the business of mining, and also to pass through the said premises by any subterranean passage to mine, and remove the coal from any adjacent lands, without the right, however, to enter upon the surface of said premises for any purpose whatever.” Ten per cent, of the purchase-money was to be paid down, and the residue in ten annual instalments. On the full payment of the purchase-money, Fellows was to execute and deliver a good and sufficient deed in fee-simple, “reserving the coal and privileges above stated, and with a full and unconditional release and discharge for ever, on the part of the said party of the second part, her heirs and assigns, to the party of the first part, his heirs and assigns, from any liability for any injury that inav result to the *19surface of the said premises from the mining and removal of the said coal; and with a quit-claim on the part of the party of the second part to the party of the first part, his heirs and assigns, of all right, title and interest in and to said coal, and the privilege of mining and removing the same as aforesaid.” She took possession of the lot soon after, and made some payment thereon. Probably, early in 1861, the precise time is not shown, she transferred her interest under the contract to the defendants in error, who erected the church building thereon. They afterwards paid the residue of the purchase-money due on the contract, and on the 27th April 1867, Joseph Fellows conveyed the lot to them, “excepting nevertheless and always reserving all the coal beneath the surface of and belonging to the said premises, with the exclusive right to the said Joseph Fellows, his heirs and assigns, for ever to mine and remove the said coal by any subterranean process,” as stated in the contract. “ To have and to hold the said land subject to the exceptions and reservations as aforesaid.” In the same deed, duly executed by the appellees, they also did thereby “ grant and convey unto the said Joseph Fellows, his heirs and assigns, the exclusive and indefeasible right to mine and remove the said coal as aforesaid, to have and to hold the same unto the said Fellows, his heirs and assigns, for ever.’'’
On the 30th July 1860, while Emily Preston held the equitable title to the surface, Joseph Fellows by indenture leased to said Scrantons “ all the coal in and under said lot and other lands, for and during such term and period of time as shall be required therefor to mine and remove all said coal.” The lease further stipulated “ the said coal to be mined and taken out by said Scrantons in such manner as they may deem proper and according to their own discretion.” They are not to be responsible for the falling in of said mines or the surface of said lands in any case whatsoever, nor shall they be required to leave pillars or other supports to prevent the falling of the surface, or for any other purpose except under certain lands, including the lot in question, where “ the said Scrantons shall in mining leave such pillars and supports, as shall be deemed by those having experience in mining, to be sufficient to prevent the surface from falling in.” This lease was duly acknowledged at its date, and recorded not long thereafter. In mining under this lease the alleged injury was done to the surface, and the action was brought against both lessor and lessees and their representatives.
The main contention arises under the agreement of 1st May 1860. The learned judge held substantially that it gave to Emily Preston, and those claiming under her, an unqualified right of support to the surface from the owners of the coal beneath. This conclusion is claimed to be sustained by the authority of Jones v. Wagner, 16 P. F. Smith 429; Horner v. Watson, 29 Id. 242, and *20Coleman v. Chadwick, 30 Id. 81. An examination of these cases shows they were ruled on a state of facts essentially different from those in the present case, and therefore they do not control it. They dealt with presumed and implied rights and duties, in the absence of any specific agreement, as to the measure of care and skill in mining and removing the coal without leaving suitable supports. ITence, in Jones v. Wagner it was said, “contract may devote the whole minerals to the enjoyment of the purchaser without supports if the parties choose.” Horner v. Watson was this: Horner w'as the owner of an upper mine. In excavating his coal he removed the ribs or pillars which supported the roof of his mine, thereby causing the surface above to sink and crack, so that the water therefrom flowed in and through his mine, and into a lower mine of Watson. It was held, the latter could recover from the former for the injury thereby sustained, although 'it resulted from the approved, established and customary practice of mining in that region and without negligence. That the surface could not be destroyed by following a prescription or custom, for a claim destructive of the grant could not be set up by any usage. Here, too, there was no specific agreement as to the manner in which the coal should be removed or the mine supported. The fact that the rights and duties of the parties might have been changed by agreement is clearly implied in that portion of the opinion in which it is said a careful examination of the agreement discloses nothing to take the case out of the rule stated. Coleman v. Chadwick also rules that when the owner of the whole fee, grants the minerals, reserving the surface, his grantee is entitled to so much only of the minerals as he can get without injury to the surface, and a custom contrary to such right would be unreasonable and invalid. There was no express agreement in this case as to the manner in which the mines should be worked, and the fact that the mining had been done according to the usual course and practice, and without any negligence, was held insufficient to protect from liability when there was an omission to leave ribs or pillars of coal or other supports for the surface. I dissented from the judgment in each of these last cases. Yet I recognise them as authority in cases where they apply. They do not apply to a case, like the present, of an express agreement fixing and defining the rights of the parties.
In the contract of 1st May 1860, Fellows agreed to sell “excepting and always reserving” all the coal. Coal in place is land. As early as Comyn v. Wheatley, Cro. Jac. 150, it was held in England that ejectment would lie for a coal mine. The objection that it was beneath the soil was held insufficient to defeat it. This case was cited approvingly in Caldwell v. Fulton, 7 Casey 475. It is there held that minerals beneath the surface of a tract of land, may be conveyed by deed, distinct from the right to the surface. *21They are a corporeal hereditament, and may thus be severed by conveyance. So in Turner v. Reynolds, 11 Harris 199, it was held that a coal mine may be described and recovered, in an action of ejectment, as land, although the plaintiff did not claim or assert any title to the soil or . surface of the tract, but only to the coal beneath. A mine right, severed from the ownership of the soil, may be regarded as a separate close, and compared to the lower story of a building. The law implies an obligation on his part to keep it in a suitable condition to support the upper stories owned by others, and that the owner of the upper story shall maintain the roof for the protection of those owning below him. There is, however, nothing in this implied duty arid obligation to prevent either from being relieved therefrom by agreement with the other.
The contract with Emily Preston excepts from the agreement to convey a part of the land by clear and apt words. Fellows held the coal as absolutely after the contract was executed as before. It cannot be objected that the exception was as large as the grant and therefore void. The coal is a part of the land that would otherwise have passed it is true. By excepting that, and selling the surface of the land, enough property passed to the vendee to give full effect to the agreement. The court, therefore, erred in saying that the right contended for “ would present the anomalous feature of a grant of an estate in land, accompanied by a reservation totally destructive of the grant:” Whitaker v. Brown, 10 Wright 197.
The exception proceeds “ with the exclusive right to the said Joseph Fellows, his representatives and assigns, to mine and remove the same by any subterranean process incident to the business of mining.” Thus there is a clear recognition that he retains as full property in, and dominion over all the coal, and could transfer the same to his heirs and assigns as if he had not agreed to convey other parts of the land. It is not a mere license to mine, nor a reservation out of something previously granted, but it is an exception out of the grant, so that no title to the coal should pass from him. He excepts “ all,the coal.” There is no limitation as to the time nor the purpose for which it shall be taken. Under no circumstances was it to become the property of Emily Preston. The absolute right of property in the coal remained in Fellows, but he was not at liberty to sink shafts through the surface of the land for the purpose of mining it. He must reach and remove it by subterranean process. If in so doing the surface should be injured, the question arose how and to what extent should he be relieved from liability therefor ? On the payment of the purchase-money, the agreement provides that Fellows shall execute and deliver a deed reserving the coal and privileges stated; but at the same time Emily Preston, for herself, her heirs and assigns, shall *22give “a full and unconditional release and discharge for ever” to said Fellows, his-heirs and assigns, “from any liability, for any injury that may result to the surface of the said premises from the mining and removal of the said coal, and with a quit claim on her part, her heirs and assigns, of all right, title and interest in and to said coal, and the privilege of mining and removing the same as aforesaid. “As aforesaid” not only refers to the subterranean process; but still more clearly to the absolute “ release and discharge” from all liability for injury to the surface just before mentioned.
Thus, in clear, express and distinct language, it was agreed, the owner of the mine, his heirs and assigns, should be exempt from the very liability now attempted to be fastened on him and his assigns. We see no reason why a person shall not be bound by his agreement to exempt another from liability for damages in working a coal mine, as well as from liability for damages resulting in the performance of any other kind of labor. No rule or policy of law' forbids it. The undoubted intention of the parties to the contract was, that Fellows might mine and remove the coal without any obligation to support the surface or liability in case it fell. It was well said by Justice Blackburn, in Smith v. Darby et al., Law Rep., 7 Q. B. 716, “the man who grants the minerals and reserves the surface is entitled to make any bargain he likes; both parties are just as much at liberty to make a bargain with reference to coals and minerals, as to make a bargain with reference to anything else.” The same rule applies when one grants the surface and retains the minerals. In each case the question is, did the parties agree there should be no obligation in regard to support ?
On the 30th July 1860, while this contract was in force, Fellows executed the lease to the Scrantons. Although called a lease, it Avas virtually a- sale of all the coal, with unlimited time to remove it, with the right at their election to yield it up after the expiration of ten years. It was therein stipulated that the Scrantons should “not be responsible for the falling in of said mines or the surface of said lands, in any case whatsoever,” but in mining they were required to leave such pillars and supports as should be deemed sufficient by those haying experience in mining, to prevent the surface from falling. While the language in this lease differs someAvhat from that contained in the agreement with Emily Preston, yet it is evident the intention Avas to pass to the Scrantons substantially all the right and power which Fellows had to mine and remove the coal without liability for damages. He did not attempt to give them greater immunities than he possessed, but rather less. When the defendants in error aftenvards procured from Emily Preston an assignment of the contract, it gave them full notice of the rights of Fellows, and of his exemption from *23liability. They acquired her equities only. It is probable that the lease to the Scrantons was then recorded, thus giving to the defendants notice that Fellows had transferred his rights. If not then recorded, it was soon thereafter, and several years before the defendants in error obtained the deed from Fellows. The fact that it omitted the clause releasing Fellows, his heirs and assigns, from all liability for damages from injury arising in mining, could not take from the Scrantons rights which he had previously transferred to them. The defendants in error purchased the interest of Emily Preston in the contract, subject to all the obligations therein imposed on her affecting the title. She could not compel a delivery of the deed without fulfilling her obligation to release and discharge Fellows as therein stated. It was to be done cotemporaneously with his deed, and to be contained in the deed which she covenanted for herself, her heirs and assigns, to make to him. Her covenant was in regard to the enjoyment of a thing in esse. It ran with the land, and the defendants in error, as purchasers from her, took the land subject thereto: Cathcart v. Bowman, 5 Barr 317. It therefore follows that the Scrantons are not liable for the reasonable exercise of any right which they acquired from Fellows, under the terms and conditions of the lease, at a time he possessed that right; and he,cannot in this action be liable to the defendants in error in case he afterwards conveyed to them rights which he had previously granted. In so far as the rulings of the court are contrary to this opinion, the assignments are sustained. We discover no substantial error in the remaining assignments.
Judgment reversed, and a venire facias de novo awarded.