(dissenting). — In avoiding any expression of opinion as to the rights of the lessee under a mining lease, in the absence of express agreement, to use the entries on the leased land for the purpose of transporting also coal mined on other land, and basing the decision entirely on an interpretation of the lease, I think the majority begs the whole question as to plaintiffs’ right to an injunction. The lease can be interpreted only in the light of the law which is presumed to have been in the minds of both parties at the time the lease was made. *34If by law tlie lessee of premises to mine coal therefrom, in the absence of any particular stipulation on the subject, has a right to use the entries on the leased premises for the purpose of transporting coal through them from other land so long as he does not in any way neglect his duties to the lessor nor cause him any damage, then, to entitle the plaintiff to an injunction in this -case, it would be necessary to find some stipulation of the contract indicating the intention that defendant should not exercise the right which he would otherwise have under a coal mining lease.
In the few cases which have arisen involving this question the general concurrence of opinion seems to be that the lease of land for a long term for the purpose of allowing the lessee to mine a subterranean vein of coal or ore involving the construction and maintenance of entries through which the coal or mineral may be removed confers upon such lessee the right to use, during the term of the lease or so long as its provisions are complied with as to the leased premises, the entries properly constructed for removing coal or mineral from the land leased, also as a channel for the transportation of like coal or mineral from other land owned or leased by such lessee. Lillibridge v. Lackawanna Coal Co., 143 Pa. 293 (22 Atl. 1035, 13 L. R. A. 627, 24 Am. St. Rep. 544); Moore v. Indian Camp Coal Co., 75 Ohio St. 493 (80 N. E. 6); Coal Co. v. Mining Co., 40 Ohio St. 559. A lease of the coal under a specific tract of land is more than a mere license to take coal from the land. Knight v. Ind. Coal & I. Co., 47 Ind. 105 (17 Am. Rep. 692); Coltness I. Co. v. Black, 6 App. Cas. 315, 335; Austin v. Huntsville C. & M. Co., 72 Mo. 535 (37 Am. Rep. 446); Consolidated Coal Co. v. Peers, 150 Ill. 344 (37 N. E. 937); Young v. Ellis, 91 Va. 297 (21 S. E. 480). The nature of the right or estate which is granted by such lease may be difficult of definition under the law of estates as usually applied to *35tlie surface of the land, but, at any rate, tbe lessee acquires a possessory right as to the vein or chamber from 'which the coal is to be removed, and is not liable to the owner of the surface for any use which is consistent with the purpose for which the right is created. Eadon v. Jeffcock, L. R., 7 Exch. 379. And see with reference to the nature of this right of possession Plummer v. Hillside Coal, etc., Co., 104 Fed. 208 (13 C. C. A. 190); Toothman v. Courtney, 62 W. Va. 167 (58 S. E. 915). When, therefore, the plaintiffs leased to the defendant “all the merchantable coal that is or may underlie the surface of” the land described, they conveyed to defendant the right to take possession of the vein of coal underlying the surface and to use the space occupied by such vein of coal for mining purposes, and, had there been no other provisions in the lease, the defendant would have had the right, having constructed entries for taking out its coal from plaintiffs’ land, to use those entries so far as no damage resulted to plaintiffs in transporting through them coal from other lands. What is there in the lease to negative by express or implied limitation the right thus arising from the nature of the lease itself? The further grant of the right “to erect underground entries, railroads, and all necessary buildings and fixtures necessary to facilitate the mining and removal of said coal from said land with the right to remove said buildings, fixtures, and railroads at the expiration of this lease,” etc., purports to enlarge, and not to restrict. It relates to the right of removal of rails, buildings, and fixtures on the termination of the lease rather than to the use which the defendant is to make of the space occupied by the coal so long as the lease continues. The provisions for royalty on coal brought from other land and elevated through a shaft on plaintiffs’ land evidently contemplates a transportation through entries on plaintiffs’ land with the stipulation that, if defendant shall construct a shaft on plaintiffs’ land and through it elevate coal brought from *36other land, then compensation is to be made for the additional use of the surface for taking away the coal thus mined and depositing on the surface the additional waste. It seems to me this express provision for royalty on coal brought from other land only in the event of its being elevated through a shaft on plaintiffs’ land negatives any claim that defendant was not to use the entries on plaintiffs’ land for transporting coal from other land if it did not see fit to construct a shaft on plaintiffs’ land; for it is expressly provided that the coal from plaintiffs’ land may be taken out without the construction of such a shaft.
The majority would surely not contend that, if the lease of the coal underlying the surface of plaintiffs’ land contained no specific provision authorizing defendant to construct underground entries, defendant would be without right to construct such entries for the purpose of taking out the coal. The right to use the space occupied by the coal in place for the purpose of carrying on mining operations is necessarily implied in the lease itself, and there is no express limitation on the extent to which such space may thus be used. Likewise the stipulation in relation to bringing coal through such entries from other land is limited to the payment of a royalty should such coal be elevated through a shaft on plaintiffs’ land, and implies in my judgment no limitation on the right to transport coal from other lands through entries on plaintiffs’ land if defendant does not see fit to elevate it through such shaft. I discover nothing in the lease inconsistent with the exercise of the right by defendant -to make such use as he shall see fit of the space occupied by the vein of coal so long as such use is consistent with the mining operations necessarily implied in the leasing of the coal. There are no cases in this state which contravene this view. In Peters v. Phillips, 63 Iowa, 550, the question involved was as to the right of the lessee to continue to use a shaft on the land of the lessor for the purpose of removing coal *37from adjoining land -without complying with the terms of the lease as to the removal of the coal from the land of the lessor, and, as the court there indicates, it is self-evident that a lessee, having established a shaft on the land of the lessor for the purpose of mining coal from such land,' can not continue to use it for taking coal from adjoining land after he has ceased to make use of it for the removal of coal from the leased premises. The primary purpose of the shaft, and the reason why the lessee was entitled to establish it and use such surface for the erection and maintenance of buildings, etc., without extra charge in the prosecution of its mining business, was the removal of coal from lessor’s land, but there is nothing in the opinion of the court to indicate that, so long as this right of use continued, the lessee might not incidentally use the shaft for the purpose of removing coal from other land. However this may be, the use of a shaft and incident occupancy of the surface involves a burden entirely different from that involved in the use of the space underground occupied by the coal to be mined.
In Moore v. Price, 125 Iowa, 353, a continued possession and use of a portion of the surface of the land of the lessor for taking out coal from the adjoining land was also involved, and the view of the court was that the lessee had no right to thus use the surface for the dumping of waste and refuse incident to the removal of coal from other land. In this case the court says that the lessee may have absolute ownership in the mineral while the ownership of the lessor as to the surface continues, citing the case of Lillibridge v. Lackawanna Coal Co., already referred to, and concedes for the purpose of the case that the lessee may have the absolute right to use the space which he has created by the removal of the mineral therefrom for such purposes as he may see fit. Certainly this case is no authority for holding that, so long as no rise of the surface is involved, the lessee may not remove through *38entries on the leased premises coal which is mined on adjoining land. In Madison v. Garfield Coal Co., 114 Iowa, 56, the only question involved was the right of tho lessee to continue to use the surface of the land for the purpose of taking out coal from adjoining land, and there is nothing in the majority opinion in that case nor in the dissent to indicate that the court had in mind any question relating to the use of entries on the leased premises.
Under the facts as it seems to me, there is no equitable ground for an injunction. The holding in Kraft v. Welch, 112 Iowa, 695, that unauthorized use .of leased premises may be enjoined although no pecuniary damage to the lessor is shown, has no application here, for the reason that, as above indicated, the lessee was not making any use of the space occupied by the coal leased other than that contemplated by the lease; that is, a use for mining operations. If the lessee had been attempting to make some other use of these entries than that involved in the operation of a mine, such for instance as the storing of water or the raising of mushrooms, no doubt an injunction would be proper without regard to the question of pecuniary injury. It is pertinently suggested in Coal Co. v. Mining Co., supra, that “he who rents a farm adjoining his own may, during the lease, haul the produce of his own land across the leased land without any license from his landlord.” Where the lessee is using the space occupied by coal or mineral in the leased land for the very purpose for which tho lease is given and without injury to the surface, I can see no reason, so long as he is strictly complying with the terms of his lease as to the removal of coal from the leased land, why he should be enjoined from transporting coal from adjoining land through the entries which he has properly constructed for the purpose of taking out 'coal from the leased premises, and I therefore dissent from the conclusion of the majority that an injunction should have been granted in this case.