Opinion by
Porter, J.,The opinion of Judge King, of the court below, which will appear in the report of this case, renders unnecessary any extended discussion of the question presented. The written agreement, dated November 25, 1896, between W. J. Steele, the former owner of the land, including the coal, and Joseph G-. Beale, defendant’s predeces*528sor in title, vested in the latter, his heirs and assigns, the exclusive right to mine all the coal underlying the tract of five hundred acres, and required him to pay for it, as mined, five cents for each ton of two thousand pounds removed. The agreement contained the usual covenants requiring the lessee of the coal to so conduct his operations that the minimum of royalty should equal a certain specified sum, and provided that the lease should remain in force until all the coal was mined and the pillars and ribs drawn.
The lease contained the following covenants, the construction of which is involved in the present litigation. “Reserving (to the lessor) however, the right to retain three acres in one body underneath the buildings now erected on the land, if desired. Said three acres to be located and designated by the first party hereto.” This provision did not constitute the three acres of coal under the buildings an absolute exception out of the grant. The right which the lessor thus reserved to himself was the right to retain the three acres of coal in question if at some time in the future he desired to do so. It was thus left in the power of the lessor to exercise an option. He could either retain the three acres of coal, or he could require the lessee to mine that coal and pay for it at the rate fixed by the covenants of the agreement. If he finally concluded that it was his desire that the three acres should remain untouched, then under this covenant he was bound to designate the boundaries of the coal so reserved and give notice within a reasonable time to the lessee. Steele never did notify the lessee that he desired to retain the three acres of coal in question, and never made any attempt to designate any coal which he wished to retain, under this covenant. The mining Operations progressed about nine or ten years after the lease had been executed the three acres of coal under the buildings was mined out, and as part of the general operations of the mine gangways were established through which the *529coal under the more remote parts of the tract has for years been transported to the pit mouth.
Steele having permitted the coal to be mined out and received the royalty for the coal so removed, his right to retain any coal in question was, under the terms of the covenant above quoted, at an end. Beale and those who have succeeded to his title were free to use the three acres under the buildings in the same manner in which they used the entries and gangways in the other parts of the mine. The three acres of coal had been mined out before this plaintiff acquired any interest in the property and long before the defendant had anything to do with the mining operations. There was no error in the action of the court below in entering judgment for the defendant non obstante veredicto.
The judgment is affirmed.