The offers of evidence in this case were properly refused; for without reference to the fact that surface support is not only a legal but a natural right, if the alleged parol alterations of the lease were made before the sales of the surface to the defendants’ vendees that fact might have, been set up to defeat the bill brought by those vendees against the present plaintiffs, and it was no fault of the defendants that that was not done.
If, on the other hand, those alterations were made after those sales, then clearly, as the vendees were in possession, the plaintiffs had notice of their right to surface support, and must have acted in view of it. But further, had the plaintiffs succeeded in proving the alterations as proposed, the result must have been to establish a parol agreement on which an action of covenant would not lie. It follows that with or without the rejected evidence the plaintiffs had no ease.
Judgment affirmed.