(dissenting) :
Being of the opinion that the exception contained in the deed, though in form a reservation, docs not lack that certainty which is necessary to vest a title, and that, by its express terms, it carries an interest in, and not a mere right to do something upon, the land, I am compelled to dissent from the conclusion to which my associates have come.
This is not a case in which a choice to take one of several different things is'reserved or granted. It is an express exception, which is practically the same thing as a grant, of an interest in one thing which is made certain by the description found in the deed. That one thing is the tract of land. The only question left for determination is the extent of the interest excepted, or the particular designation of the part excepted. Nobody could hesitate in saying that it was competent for the grantors to reserve to themselves all the coal in the tract of land granted. Having the power to reserve all, can it be said that they had not the power to reserve part of the same thing? The case of the United States v. Grundy, 3 Cranch 337, and the hypothetical case put in Sir Rowland Hayward’s Case, 2 Coke 359, illustrate an entirely different proposition from the one involved *203here. In the former, the United States had the right to elect whether it would take a ship itself or the value of that ship in money to be recovered of the owner. The ship and the money were two separate and distinct entities or things. Until the choice was made, it was left wholly uncertain as to which of those things would be taken. There was uncertainty of the thing in which the interest would be taken. The statute did not provide that the government should have an interest in one certain thing, leaving the extent of that interest to be determined by election, but said that the government should have, by reason of the forfeirute or violation of the statute, an interest in one thing or an interest in another thing, as it might elect, without saying in which thing it should have an interest. There was no uncertainty of any kind whatever. Hence, no title could pass or vest until the entity in which it was to vest was indicated and made certain by the election. The instance of giving one of three horses is of the same kind. If the gift had been of a one-fourth or a one-half interest, according to the election of the donee, in that certain white horse called “John,” an interest would have passed and vested at once. Nothing would have remained unsettled, except the extent of that interest, and the mode of making that certain, would have been expressly stated in the declaration of gift. The specific piece of property in which the interest is given is, in such ease, designated, pointed out and made absolutely certain. So, in this case, a tract of land is described by metes and bounds, located and identified to an absolute certainty, and then the deed says one of the coal banks, to be selected by the grantors, is reserved and excepted from the conveyance. That coal bank is a part of the one thing conveyed, and is not a separate and distinct entity. All six of the coal veins and the strata of stone between them, and the earth on top, and all that lies below, constitute the thing identified and passed by that deed in which an interest is reserved. The only matter left open is the amount of the interest, and the means of ascertaining that are specified in the deed. That is certain which can be made certain. Suppose it had been the conveyance of one hundred acres of land, excepting therefrom one acre, or ten acres, to be selected by the grantor. Would that have been void for uncertainty? By no means.
*204•“If a man grants twenty acres, parcel of his manor, without any other description of them; yet the grant is not void, for an acre is a thing certain, and the situation may be reduced to a certainty by the election of the grantee.” 3 Bac. Abr. 307. “So, if one being seized of a great waste grants the moiety of a yardland lying in the waste, without ascertaining what part, or the special name of the land, or how bounded; this may be reduced to a certainty by the election of the grantee.” Id. “When one and the same thing passeth to the donee or grantee, and the donee or grantee hath election in what manner or degree he will take this; there the interest passeth immediately, and tire party, his heirs or executors, may make election when they will.” Id. 311.
“And it was said, if a man gives two acres to another, habenr dum one acre to him in fee, and the other acre to him in tail, and he aliens both, and hath issue, and dies; in this ease, the issue may bring a formation in tiiscender for which acre he will, for the election is not determined by Ms death; for am estate< passes presently by the livery, and the issue shall take by descent.” Sir Rowland Heyward’s Case, 2 Co. 35a, 37a. At the same page, Lord Coke says: “When nothing passeth to the feoffee or grantee before the election, to have one thing or the other, there the election ought to be made in the life of the parties, and the heir or executor cannot make the election. But when an estate or interest passeth presently to the feoffee, donee, or grantee, there election may be made by them, or by their heirs or executors. When a thing passeth to the donee, or grantee and the donee or grantee hath election in what manner or degree he will take it, there the interest passeth presents ly, and the party, his heirs or executors, may make, election when, they will.”
This principle was applied in Anderson v. Donelsons Exrs., I Yerg. (Tenn.) 197, under the following conditions: Anderson had covenanted to convey to Donelson seven hundred acres of land to be selected in a square or oblong out of any one of the four comers of a large tract. After Donelsom’s death, his executor selected the land and Anderson refused to convey it. .Thereupon an action was brought on the covenants. In deciding the case, the judge quoted and applied a part of the language above quoted from Lord Coke, and then said: “It is a *205simple titlé bond for 700 acres of land out of a five thousand acre tract, making Donelson in equity, a tenant in common with Anderson, in proportion as the 700 acres are to the whole tract, and the option spoken of in the bond, refers alone to the mode of partition, which Donelson reserved the right to control to a certain extent.”
This is not an exceptional case. A great many others so hold in several different states, some of which are cited in support of the following text, found in 17 Am. & Eng. Enc. Law 8 Ed. 663: “Where a conveyance is made of a certain number of acres of a tract of land, not described by metes and bounds, the grantee becomes a tenant in common with the grantor or the other owners, where the land is held in common, of the entire property, the extent of his interest being determined by the proportion which the number of acres conveyed bears to the number of acres in the entire tract.”
These decisions have settled what, in early times, was an open question, namely, whether in such case, there was a tenancy in common. “Upon a covenant, in consideration of marriage, to stand seized of so much land as shall be of the yearly value of forty marks; it hath been a question, whether they to whom the assurance was made, might enter into any part of the land of the value of forty marks, at their election, and hold the same in severalty; or if they should be only tenants in common with the other; and whether they may choose one acre in one place, and one acre in another; and so through the whole land where they please.” 3 Bac. Abr. 307, 308. The question was what the relation between the parties should be, but no doubt was expressed that an interest attached and passed by such a covenant, although far more uncertain in its nature than that which is excepted here by the clause in question.
As the relation of co-tenancy in the land is credited by this exception, it was in the power of Perdue, the grantee, or any person claiming under him, to compel, at any time, an election on the part of the grantors or their heirs, just as in any other case. One co-tenant may, by a proceeding for partition, have his interest set apart for his separate use and enjoyment.
Before the statute, authorizing conveyances of land by deed, without livery of seizin, this exception could hardly have been made, and if it could have been made, it would have failed, if *206the election were not made within the life time of the party in whose favor it was made. A man could not make a feoffment to commence after his own death, for estates of freehold could not be made to commence in futuro. 4 Bac. Abr. 303, 304. Neither could a man reserve to himself a life estate. Id. 304. There is another reason why, under a feoffment, it was necessary that the election be made in the life time of the feoffee. The delivery of possession of the land was necessary to the completion of the transfer of title. Lands could only pass by livery of seizin, and livery of seizin was delivery of the possession. Anciently, this was done without any writing, but later a charter or deed accompanied it as evidence thereof, but the delivery of the possession continued to be the essential part of the transaction. Where the livery was in deed, both parties went upon the land, and when the conveyance was by livery within view or livery in law, title did not vest in the feoffee until he entered upon the land. Until entry, the livery operated as a license to take possession for the purpose of completing title, and, if the feoffee died before entering, his heirs could not enter, 4 Bac. Abr. 300, 303. As lands now pass by grant, and estates may be so created to commence in futuro, these old principles do not apply, and election is. not necessary to- the completion of title. Entry upon the land is no longer required. Therefore, Bullock’s Case, cited in Sir Rowland Heyward’s Case, is not applicable. That was a feoffment of a house and seventeen acres of land out of a large tract and the land was not selected and entered upon by the feoffee in his life time.
Nor do I think the exception can be limited to the creation of a mere incorporeal hereditament, the mere right to go upon the land and dig and carry away, in common with the other owners, coal. The exception is of the use and occupation of the coal bank. Occupancy, when applied to real estate, implies an estate in the land. An occupant of land is a tenant or an owner. If he occupies at the will of the owner, he has an estate at will or at sufferance; if for a period of years, an estate for years, if for a life time or any greater period, he has an estate of freehold. The mere right to go upon land and do certain acts, such as to take away the wood or coal, is not an estate in the land of any kind or character. Certain grants or reservations, in re*207spect to coal, have been held by the Pennsylvania courts to create mere-incorporeal hereditaments, and not to pass any interest in the land. But, in most of these instances, the instrument disclosed upon its face the intent to pass nothing more than a mere right to dig and carry away coal, not all the coal, but some of the coal, the grantor reserving the right to dig and carry away from the same seam or mine also. One case may be said to be somewhat similar to this. The instrument conferred the “free right to dig coal at the coal bed under my lot — - with the privilege freely to carry the coal from the said lot, as also free ingress and egress to and from said coal bed through my land at all times hereafter, doing as little damages as may be in the uses, etc.” Gloninger v. Coal Co., 55 Pa. 9. That deed expressly gave the right to dig and carry away coal. It did not give in express terms the use and occupation of the coal bank, as the reservation here does. There is no escape from the conclusion that this passes an interest in the coal, except by resorting to construction, so as to narrow these terms and make them mean less than the words used technically and ordinarily mean.
Rex v. Inhabitants of Eatington, 4 T. R. 178, holds that, “If A. residing in a cottage of his own grant it by lease and release to B. in fee, in consideration of £361, with a proviso That A. shall live in and occupy the said cottage with the appurtenances as he theretofore had done and then did for life;’ B. only takes an estate for life in A.” Lord Kenyon said: “If this question had depended on the first words in the proviso, I should have thought that they would have been satisfied by determining that only a liberty to inhabit the cottage was reserved to the father; but the word ‘occupy’ carries the interest reserved still farther, and shows that the whole estate was intended to be reserved to him.” Ashhurst, J., said: “The word ‘occupy’ in the proviso, is extremely material to show that the deed must have this operation; for it is a reservation of the thing itself, of the whole estate.” Buller, J., said: “Something more was meant than a bare license to inhabit or live in the house, for the word ‘occupy’ is added to them.” The same force was given to the word “occupy” in Rabbeth v. Squire, 4 De G. & J. 406, where a will gave a joint use and occupation of land. Applying the reasoning found in the above quotations to the language of this exception, it might be said that, if it had stopped with the word *208“use,” a mere privilege would have been imported, but it does not stop there. It gives, not only-the use of the coal bank, but the occupancy of it, and, by giving the occupancy of it, it excludes the grantee and those claiming under him, and this necessarily vests an interest in the grantor.
Thus it, clearly appears that, unless a different intention on the part of the parties to the deed can be found, the coal bank itself was excepted. Where is this intention to be found? Not in the deed. In order to hold that less than an estate passes under the exception, it must be 'found that the words “use .and occupancy” were used in some sense different from their technical meaning. The only ground offered for this purpose is the fact that, at the time of the conveyance, the use of coal was limited, and it was not mined extensively, if at all, for commercial purposes, and not mined at all in that section of the country except for blaeksmithing purposes, and, therefore, the exception was only intended to give to the grantors the right to go upon the land and take coal for such purpose. Had Hall and Chapman been blacksmiths anA using a coal bank for that purpose, that fact might have given some color to this contention. But they were not so using it, nor were they blacksmiths. There was an opening on the land from which coal was taken for blaeksmithing purposes, and the inference to be drawn from these circumstances, if any, is that Hall and Chapman were receiving pay for the coal so taken and thus deriving an income from the land which they desired to continue. Moreover, they were lawyers and are supposed to have known the legal meaning and force of the terms used in the exception, a circumstance which strongly argues against any intent different than from that imported by the technical meaning of the terms used. I do not see that the purpose for which the coal was then used has any bearing upon the question. If it be true that only such use was made of this mineral at that time, might not the grantors just as well have reserved to themselves the exclusive right of one coal bank for that purpose as for any other purpose? If such ignorance of the use and value of the mineral obtained at that time, may we not well suppose that the parties were wholly ignorant of the extent of that mine and that the grantors, in order to assure themselves of a sufficient supply, were careful to reserve the whole of it to themselves? The grantee being equal*209ly ignorant of its extent and value, may we not say he was perfectly willing to let it be cut out of the conveyance? If they did, the subsequent demand for, and value of, this great deposit cannot change the original intent. This argument of the limited use of coal and ignorance of its value and quantiy is a sort of two-edged'sword, and cuts as deeply on the one side as on the other, and it by no means supports the alleged intent different from that imported by the words used in the deed.
Again, it is said we must ascertain the intent by the conduct of the parties under the deed. What conduct? What use of this coal mine have the grantors or their heirs made? What act of theirs can be pointed to as indicating their construction of this language? Does it appear that, under it, they have confined themselves to the. exercise of a mere liberty in taking coal ? By no means. It appears that they have done nothing under it. Instead of conduct or acts under it, showing intent or construction, want of action appears. How then, can the rule of conduct be applied ? It appears that, since the deed was executed, some thirty-seven years have elapsed, in all of which there has been absolute silence and inactivity on the part of the grantors and their heirs, respecting the reserved coal mine.
A good illustration of the construction of a reservation determined by the acts of the parties under a deed is given in Jones on Beal Prop, in Conv., at section 523, where he says: "Thus, whore there was an exemption and reservation ‘of sixty-eight feet of land from the east end of the described premises/ and the grantor retained possession of a lot of that width along the whole east side of the land, putting the purchaser in possession of the remainder, and the parties built a fence along the line thus fixed, and the grantor built a house and bam on the portion held by him, and after many years conveyed the tract as being sixty-eight feet wide, it was held that the acts of the parties established the interpretation that the exception was of a strip sixty-eight feet wide along the east side of the lot, and not merely of sixty-eight square feet, which would be a strip of the width of only six inches.”
In that case there was action, not want of action; things done, not things omitted; affirmative conduct, not entire want of conduct.
The last epptentign is that, by 'the use of the wotds "one of *210tbe coal banks,” the parties 'could have meant nothing more than the surface or walls of the coal or opening. It seems to me, we are not warranted in assuming or inferring that the grantors, in reserving to themselves and their heirs, the exclusive use and occupancy of this coal bank, intended to use it for residence purposes or temporary occupancy when out in pursuit of wild animals, or for any purpose other than the digging down of those walls and making use of the material taken from them. It is pointed out that coal was then used to a very limited extent, even in that wild country, and, as it is impossible to discover any reasonable purpose for which this reservation could have been made, except to make use of the coal, in doing which, the walls would be pulled down and the surface pushed back from time to time, possibly to the extent of exhausting the whole vein, we ought to say that this was the purpose of the exception.
If the court had adopted this view, the result would have been embarrassing to the company now operating in the vein of coal for the recovery of which this suit was instituted. It would have been the result of their own lack of caution and prudence. They must have known this exception was in the deed under which they claimed, and, as prudent men, it was their duty to acquire that outstanding interest before expending their money in the development of the mine.