(eonómring:)
I concur in the conclusion reached by this Court in this case. I have no quarrel with the doctrine or right of sub-jacent support, when it has not been parted with, applicable where the surface and subjacent estate in the same land are owned by different persons. I do not condemn or question what I deem the best considered cases and text-books expounding this doctrine. Owing to these facts, and to the very great importance of this case, I have concluded to prepare this opinion.
This case is on a writ of error to the judgment of the circuit court, sustaining a demurrer to the declaration and dismissing the action. It appears from the averments of the declaration, which for the purposes of demurrer must be taken as true, that iilaintiff, Griffin, being the owner in fee of 68.89 acres of land in Harrison county underlaid with coal, sold and conveyed the coal (except 3 acres thereof) to Camden, with the following mining rights and privileges: “The party of the second part and his assigns is to have the right of way through said reservation for a road, air-course and drain way necessary or convenient for the mining and removal of said coal and the coal under coterminous and neighboring lands, together with the right to enter upon and under said land and to mine, excavate and remove, all of said coal and remove upon and under said land the coal from under adjacent, co-terminous and neighboring lands, and also the right to enter upon and under the tract of land hereinbefore described, and make all necessary structures, roads, ways, excavations, air-shafts,- drains, drain-ways and openings necessary or convenient for the mining and removal of *497said coal, and the coal from co-terminous and neighboring lands,- to market.”
The defendant company became the owner of said coal and mining rights and privileges conveyed to Camden. The defendant, having removed a part of said coal, leaving blocks .or pillars thereof, afterwards removed the blocks or pillars, completing the removal of all the coal without leaving support for the surface, thus causing subsidence of the surface, as plaintiff avers, to his injury and damage.
Plaintiff brings his action of trespass on the case for damages, not relying upon any express covenant or provision of the deed of conveyance, which constitutes the contract between the parties, but relying upon what is termed the doctrine or right of subjacent support. The only act complained of is the act of removing all the coal conveyed without leaving support. The manner of the removal is not complained of; and no negligence in the manner of removal is averred. The act of removal itself, and not:the manner of doing the act, is averred to be negligent. This being the case, there is for determination the single question: Was the removal of all the coal conveyed without leaving support in violation of plaintiff’s right?
This leads us to a consideration of the doctrine or right of subjacent support. We are cited to no previous decisions in point in this State, or in the state of Virginia before the formation of this State. We are cited to many decisions and text-books, both English and American, which are not said to be binding authority upon this Court, but which may be termed persuasive reasoning. They appeal to us and should govern us so far, and only so far, as they appear to us to be founded upon correct principles. We are seeking the right — the truth — and should accept it wherever found.
In this investigation, we turn naturally to England, which I think may be termed the parent of the doctrine of subjacent support. The first cases were decided there.
No case or text-book, either English or American, will be found which rests this doctrine or right of subjacent support upon more than two grounds, or, rather, which holds that *498the doctrine or right is' composed of more than two ingredient propositions. They are: First, a iiresumptive or implied reservation to the surface owner of sufficient of the subjacent strata or estate to support the surface modo et forma,. Second, the principle of law expressed in the Latin maxim: Sic utere tuo lot alienum non laedm — liberally construed, “So use your own property as not to injure the property of another. ” Many authorities rest the whole doctrine upon the last proposition only. The principle contained in the first proposition, when applied to a case where the fee owner has granted the surface and reserved the underlying strata or estate, would necessitate an implied additional grant of so much of the subjacent strata or estate as was necessary to support the surface; but we are not dealing with that case here.
The first proposition was announced by Lord Campbell in Humphreys v. Brogden, 12 Q. B. 739, decided in 1850, in which he used this language: ‘‘If the surface and the min■erals are vested in different -owners without any deeds appearing to regulate their respective rights, we see no difficulty in presuming that the severance took place in a manner which would confer upon the owner of the surface a right to the support of the minerals. If the owner of the entirety is supposed to have alienated the surface, reserving the minerals, he cannot be presumed to have reserved to himself, in derogation of his grant, the power of removing all of the minerals without leaving a support for the surface; and if he is supposed to have alienated the minerals, reserving the surface, he cannot be presumed to have parted with the right to that support for the surface by the minerals which it had ever before ci joyed.”
This was not the first case in England upon the subject of subjacent support, as thought by some. Lord Campbell in that case also recognized the second proposition above' mentioned, but reached his conclusion by analogy to the severance of the ownership of the different stories of a house, quoting Erskine’s Inst, as follows: “Where a house is divided into different floors or stories, each floor belonging to a different owner, which frequently happens in the city of Edinburgh, the proprietor of the ground floor is bound, by the nature and condition of his property, without any servitude, *499not only to bear the weight of the npper story, but to repair his own property, that it may be capable of bearing the weight. The proprietor of the ground story is obliged to uphold it for the support of the upper, and the owner of the upper must uphold that as a roof or cover to the lower.”
Lord Campbell in that case, was very guarded in his holding that the law there laid down only applied where the surface belonged to one man and the minerals to another, and no evidence of title appeared to regulate or qualify their rights of enjoyment. The last clause of the opinion contains the following language: “I need hai’dly say that we do not mean to las^ down any rule applicable to a case where the prima facie rights and liabilities of the owner of the surface of the land and of the subjacent strata are varied by the production of title deeds, or by other evidence.”
The earlier English case of Harris v. Ryding, 5 M. & W. Rep. 59, decided in 1839, held that the mining rights in the deed in question applied to acts to be done upon the surface of the land, and did not enlarge the rights of the owner of the minerals, under the ground, beyond what they were without the mining rights. Baron Park there reached his conclusion in this language: “I do not mean to say that all the coal does not belong to the defendants, but that they cannot get it without leaving sufficient support.”
Some English and American cases have followed the two English cases cited, resting their decisions, at least in part, upon the theory of a presumptive or implied reservation of so much of the subjacent strata or estate as is necessary to support the surface. The case of Noonan v. Pardee, 200 Pa. 474, carried that theory to its logical conclusion by holding: “What the surface owner has a right to demand is sufficient support, even if to that end it be necessary to leave every pound of coal untouched under his land.”
In Blanchard and Weeks’ Rote to the case of Jones v. Wagner, in Leading Cases on Mines, etc., page 617, it is said: “There is a prima facie inference at common law, upon every demise of minerals or other subjacent strata, where the surface is retained by the lessor, that the lessor is *500demising- them in such a manner as is consistent with the retention by himself of his own right to support. In the absence of express words showing clearly that he has waived or qualified his right, the presumption is that what he retains is to be enjoyed by him modo et forma, and with the natural support which it possessed before the demise.”
The theory of implied reservation or implied grant has been couched in different language in different cases. Some cases have said that the subjacent estate owes a servitude to the super-incumbent surface. Others have said that the surface owner is entitled to an easement. Others have called the right of subjacent support ex jwe naturae; and still others have said that the right is a part of the surface, and as such may not pass except by express words. In whatever language the decisions referred to may be couched, in the last analysis they rest upon the authority of Humphreys v. Brogden, holding that there is a presumptive or implied reservation or an implied grant.
The theory of an implied reservation is earnestly relied on by the learned attorneys for the plaintiff, in their original brief. I quote therefrom as follows: “In a grant like the one at bar, a reserve of the right of surface support is implied.” This proposition of the early English cases, of an implied reservation in the face of an express grant, has been much questioned and criticised in England, and, it seems to me, with great reason. I do not think that, in a case where the owner of the fee granted or conveyed the underlying strata or estate, the theory of an implied reservation, amounting if necessary to the whole of the thing granted, could ever, have been maintained upon sound reason. It seems to me that the first part of the statement above quoted from Lord Campbell in Humphreys v. Brogden, viz., that the grantor in case of the reservation of the minerals cannot be presumed to have reserved to himself, in derogation of his grant, the power of removing all the minerals without leaving a support for the surface, furnishes a conclusive- reason for overthrowing the second part of his statement quoted, viz., that in case the owner of the entirety is supposed to have alienated the minerals, reserving the surface, he cannot be presumed to have parted with the right to *501that support for the surface by the minerals which it had ever before enjoyed. The latter part of the statement necessarily implies a reservation in derogation of the grant —the very thing condemned in the first part of the statement.
I cannot see how, against every rule of construction, where a deed has been made by the owner of the fee, granting in express terms all the subjacent strata or estate, that the right of subjacent support may be based upon the ground that there is a presumptive or implied reservation by such a deed, in which there is no express limitation, reservation or exception, and in derogation of the expressr terms of the grant, of so much of the subjacent strata or estate, to the extent of all if necessary, to support the overlying surface. Such a proposition seems to me to be contrary to all principles of law. I am not, however, saying that the doctrine or right of subjacent support does not exist where it has not been parted with; but I do say that I cannot assent to the proposition that it emanates from a presumptive or implied reservation of so much of the estate granted as is necessary to support the surface.
An inconsistenc3^ running through most of the cases holding to the theory of an implied reservation is they concede that after the grant the grantee is the owner of the thing granted.
In the later English case of Eadon v. Jeffcock, L. R. 7 Ex. 379, decided in 1872, the provisions of a lease of a bed of coal were involved; and the Court held that the intention of the parties was that all the coal should be removed, other than certain pillars specified by the terms of the lease, and that the lessees were not otherwise liable for failure to leave support for the surface. There is no difference in principle between a lease and a deed of conveyance. Davis v. Treharne, 6 App. Cas. 460. I do not find that this case of Eadon v. Jeffeoch has been overruled. On the contrary, it is cited as late as 1902, as one of the leading English cases. It is true that in the case of Davis v. Treharne, supra, Lord Blackburn alone, of the three Lords, delivering opinions, including the Lord Chancellor, said: “I cannot agree with what seems to have been said by Baron Cleasby in the case of Eadon v. Jeffcock." The other Lords delivering opinions *502did not question that case; and it was not there overruled. In the case of Eadon v. Jeffcock, Baron Cleasby said in part: “It appears to us that, outside of this contract, there is no reservation of any right to support, whatever the exact nature of that right may be, but that we must look at the contract itself, and by a proper construction of it, having regard of course, as in all cases, to the subject matter, arrive at the extent to which the owner authorizes the minerals to be removed.” He also quotes from Lord Wensleydale in Rowbotham v. Wilson, 8 H. L. C. 359, as follows: “Whether the right to support given by the land below to the land of the owner of the surface, when the strata belong to different persons, properly is to. be called an easement, as it is by Mr. Gale in his excellent Treatise on Easements, ‘a natural easement,’ or, whether the owner of the surface has merely a right to enjoy his own land in its natural state and condition with a right of action against the owner of the land adjoining or subjacent when the act of his neighbor does him an injury, are questions immaterial to the decision of this case, though the last proposition appears to be fully established by the judgment of the Court of Exchequer Chamber in Bonomi v. Backhouse,” 9 H. L. C. 503.
Baron Bramwell, delivering an opinion in the case of Eadon v. Jeffcook, said, in part: “In this case the defendants have a lease of a seam of coal. It may not appear of much consequence by what name their interest is called, but the word lease may in such cases have helped to a particular conclusion. For by that word we commonly understand a temporary estate granted in something which, at the end of the term, is to be restored to the lessor in the condition in which it was delivered to the lessee, fair wear and tear excepted, as in a lease of land, house or a moveable chattel. But that is not the intention of a lease of a seam of coal. That is more a sale of the coal, or grant of a right to take and remove it within a certain time, and it is not to be restored at the end of that time to the grantor. Treat it as a sale of the coal, provided the vendee get it all within a certain time; and why should the grantor be at liberty to say: ‘Though in terms I sold the whole of it, yet-by implication I reserved as much as was necessary to support the surface in its natural condition:’ Why should not the argument be *503good, ‘If you meant that exception you should have said so in words.5 Suppose a sale of brick, earth or gravel by metes and bounds, and suppose the'vendee took it all, and suppose then the soil of the vendor outside the boundary crumbled in for. want of lateral support would the vendee be liable to a claim in respect thereof by his vendor, and, if he would, why? With great respect, such a dealing with a seam of coal is more like selling the materials of an intermediate floor than letting or selling the floor. Suppose a man with a three story house sold the materials of the second floor, would he have a right to say, ‘But you must leave enough to support my third story or you must prop it up?’ It is true a lessee of a mine may take all the coal and artificially prop the surface; but, practically, this is impossible, owing to the expense; and the same argument applies, viz., why did not the grantor stipulate for it? It may be said that.if this argument is true of a lease or grant of coal, to be taken in a certain time, it would be equally so of a grant to be taken whenever the grantee thought fit; if so, of all cases where the ownership of mines and surface was severed; and that the authorities are overwhelming the other way. But, in the first place, the argument is not so strongly applicable where the grant allows the grantee to take at any time, because the grantor may well allow his land to be let down provided it is to be down within a certain time, where he would object if he could not tell for all futurity when it might happen. In the next place, where the terms of the severance are not known, but only that there is a severance, then it may as well be presumed one way as the other. That is a case of ownership, not contract; as this is. Here the terms of the contract that gives the right to take the coal are known, and the question is, why does not the general principle apply viz., look at what is said in the deed, and add nothing except from a necessity for doing so.” Yet Baron Bramwell felt bound by the previous decisions of his own country, and doubted as to his decision.
It is obvious that the English Courts are no longer in sympathy with the theory of presumptive or implied reservation of so much of the thing granted as is necessary for support, as a basis for the right of support. Rowbotham v. Wilson, supra; Bonomi v. Backhouse, supra. Our statute, *504section 2, chapter 72, Code, provides: “Every such deed, conveying lands, shall, unless an exception be made therein, be construed to include all the estate, right, title and interest whatever,, both at law and in equity, of the grantor, in or to such lands.”
Shall we still say that there is an implied reservation, in derogation of the express grant? The answer is apparent.
What we have said does not dispose of the whole doctrine of subjacent support. What is the doctrine or right in this State, and upon what does it rest? It rests upon, and consists solely of, the second proposition above stated — the principle 'of law, Sic utere tuo ut alienum non laedas. This rule of law expresses all that there is of the doctrine. This position seems to be fully recognized by plaintiff’s petition for a rehearing.
It may be asked, what is the difference upon what ground the doctrine or right of subjacent support rests, so that it exists. The reply is that the difference is not so much in the existence as in the manner in which it may be parted with by the surface owner. If the right of support is a reservation of the subjacent estate, or a servitude upon it, or an easement in favor of the surface owner, or a part of the surface estate, there is more show of reason in saying that the right of support may not be parted with by implication or without express words, than there is when’the right is considered to consist only of a rule of law commanding that you shall not use your own so as to injure that of another.
This rule of law relates to the use and enjoyment of property, and not to the ownership of property. As a rule of law it is negative in its application, forbidding the use so as to injure that of another. It is not-a servitude when applied between the owner of the surface and the owner of the sub-jacent strata of land, in the strict sense of that term, any more than it is a servitude upon all property. Likewise, it is not, strictly speaking, an easement in favor of one.owner of property - against another. It is no more a part of the surface than of the subjacent estate in land, although applicable to both. It has no more force when applied between the different owners of the surface and subjacent estates in land, *505than when applied between the different owners of property everywhere and of all kinds. As a rule of law, it must be always the same — constant, invariable, and immutable.
By the side of this principle of law, and to be applied in harmony with it, there is another which must be considered. It is the proprietary right of the owner of property — the principle of absolute dominion where there is absolute ownership.
Under the principle of law, Sic utere, etc., I think it is incontrovertible that where the surface and subjacent strata or estate in the same land are owned by different persons, and the right.of support has not been parted with by the surface owner, the surface owner is ehtitled to subjacent support; or, as many of the authorities put it, the surface owner is entitled prima facie to support. All the authorities agree upon that proposition. Also, all of the authorities recognize the principle, Sic títere, etc., as one ground of the doctrine of support. Why? Because when the ownership is severed, two separate estates are formed, and neither may be used by the owner to the injury of the other. The owner of the subjacent estate may not so use his own by removing all of it, as to injure the surface estate; but so long as the removal does not injure the surface estate, he may remove.
Considering this rule of law as the doctrine of subjacent support in this State, how may the surface owner waive or exclude the right of support? which is simply another form of asking how he may waive or exclude the benefit of the rule of law mentioned.- I would answer that he may waive or exclude the benefit of this rule of law in precisely the' same way that he may waive or exclude it in relation to any other property owned by him, or any other rule of law the violation of which has caused or will cause him injury. It is now fully settled by the authorities, no matter upon what ground they base the right of support, that the surface owner may waive or exclude it by contract. “The right to remove all the minerals in a certain strata, though the support of the superincumbent strata is destroyed thereby, may be created by apt words.” 6 Am. & Eng. Dec. Eq., 643, and English and American cases there cited.
*506Great difficulty has been experienced by the courts, upon consideration of the several instruments before them, as to-what words, or whether the particular words involved, evinced an intent to part with the right of support.
It seems now to be fully settled that the right of subjacent support may be waived or excluded by plain implication.
The principal controversy in this case resolves itself to-this: Has the plaintiff waived or excluded the right of support, by the deed of conveyance mentioned in the declaration? Let us look at the cases claimed to construe instruments similar in language to that used in this contract. Let me say that none of them interpret language exactly like the contract here presented.
The case chiefly relied upon by plaintiff is the English case of Harris v. Ryding, supra. As we have said, in that case it was expressly held that the mining rights related to acts to be exercised upon the surface of the land, and that they did not give additional rights to the owner of the-minerals reserved, under the ground. Certain American cases are cited, such as Carlin & Co. v. Chappel, 101 Pa. St. 348; Burgner v. Humphreys, 41 Ohio St. 340; Livingstone v. Coal Co., 49 Ia. 369; Williamson v. Hay, 120 Pa. St. 485, and others. An examination of these cases will show that they adhere, in some form of expression, to the theory of implied reservation or implied grant as a ground of support, following in the footsteps of Humphreys v. Brogden. So following, they in effect refuse to admit that the owner-may waive the right of subjacent support by implication. I cannot pass this subject, however, without saying that I can in no sense agree with the two cases cited of Livingstone v. Coal Co. and Williamson v. Hay, upon the question of construction. The language of the instruments construed in those cases will be found in the reports thereof. It seems-to me that the language used in those instruments was sufficient to waive and exclude the right of support, without considering whether that right rests upon one or both of the propositions first above mentioned. It was Judge Story who said: “Where the language of an instrument is neither uncertain nor ambiguous, it is to be expounded according to-its apparent import, and is not to be warped from the or*507dinary meaning of its terms in order to harmonize it with uncertain suppositions, in regard either to the probable intention of the parties contracting or to the probable changes which they would have made in their contract had they forseen certain contingencies.” Those cases seem to me to do violence to the principles of law stated.
In the Ohio case referred to, the agreement or lease was of the coal, with the right to remove the same. ' We are not construing that language here. It will be observed that the extent to which the coal might be removed, or the manner of its removal, are not expressed in that instrument. The mining right may not have amounted to more than the grantee or lessee would otherwise have been entitled to as a right of way of necessity, without words. As to that, I do not decide.
In the work on Mines ‘by Robert Forster MacSwinney, of London, issued in 1884, all previous English cases are reviewed, and the rules governing the interpretation of instruments and contracts in relation to support obtaining in England are laid down. I quote from that work, page 304, as follows': “If apt words are used, whether in the instrument of severance itself; or in a contemporaneous, or a subsequent instrument; and whether in affirmative or negative terms and whether in express terms, or by plain implication; and whether the underlying mines are granted or excepted; and whether the instrument is voluntary or statutory; the right of support for land in its natural state may be effectually excluded” — citing Rowbotham v. Wilson, 6 E. & B. 593; Shafto v. Johnson, 8 B. & S. 252; Taylor v. Shafto, Id. 228; Murchie v. Bluck, 19 C. B. N. S. 207; Williams v. Bagnall, 15 W. R. 272; Buccleuch v. Wakefield, L. R. 4 H. L. 377; Smith v. Darby, L. R. 7 Q. B. 716; Eadon v. Jeffcock, L. R. 7 Exch. 379; Buchanan v. Andrew, L. R. 2 Sc. & D. 288; Aspden v. Seddon, 10 Ch. 396; Gill v. Dickinson, 5 Q. B. D. 159; Davis v. Treharne, 6 App. Cas. 466; Dalton v. Angus, Id. 809. Chapman v. Day, 47 L. T. 709; Mundy v. Rutland, 23 Ch. D. 81; Bell v. Love, 10 Q. B. D. 558. A number of cases are there cited in which the right of support was held to have been waived or excluded, either by the express terms of the contract or by plain implication.
*508In Smith v. Darby, supra, decided in 1872, Lord Blackburn said: “But does not this deed say, ‘You may take them absolutely, only making compensation afterwards?’ I cannot agree that there is any argument to be derived from the use of affirmative words only, without any negative words. The question is: What was the intention of the parties to the deed, when there is an affirmative promise to pay money to the tenants, and what was the bargain as to the sale of the pi’operty? If the owner of a horse said, ‘You may take the horse, ’ and the person to whom this was said had promised to give £20 for it, there is no question that he could not be sued in an action of trespass for taking the horse, because the intention of the parties was that the one was to buy and the other sell the horse. So here the question is whether it appears upon the clauses in the deed that the intention of the parties was that the minerals should- go absolutely, without any restriction as to the right of support.”
In Aspden v. Sedden, supra, decided in 1875, Sir G. Hellish, L. J., in the opinion said: “If it appears from any express words in the deed, or by necessary intendment from anything contained in the deed, that it was not the intention of the parties that there should be any right to support, the court is bound to hold that the plaintiffs have failed to make out their case.” Also, “If liberty is reserved to do the act complained of, that reservation, as between the parties and those claiming under them, makes the act rightful.”
In Buchanan v. Andrew, supra, decided in 1873, the Lord Chancellor said: “My Lords, generally speaking, when a man grants the surface of land, retaining the minerals, he is guilty of a wrongful act if he so uses his own right to obtain the minerals as to injure the surface, or the things upon it; and, as prevention is better than cure, the Court would be justified in granting an interdict to prevent him from doing so. But on the other hand, I apprehend it is the clear law of England, and also of Scotland, that when two persons meet and deliberately settle, a contract they are at liberty to enter into such terms (not being contrary to the public law) as they may think fit; and if a feuar of surface lands is willing to take the risk of any injury which may be done by the working of the subjacent minerals, it is perfectly lawful for him to do so; the person who was previously the owner of *509the entirety being under no antecedent obligation to part with any portion previously his own, except upon such terms as are mutually agreed upon. In such a case, therefore, the whole matter resolves itself into a mere question of construction. No views of a conjectural kind as to what is or what is not reasonable can be admitted, if the contract itself is plain and free from ambiguity.”
In Davis v. Treharne, supra, Lord Blackburn said, in relation to the exclusion of the right of support: “If Mr. Treharne, when he let the land, had by express words or by necessary implication, said, ‘ You may take away all the minerals',’’ or, ‘You must take away all the minerals, letting down the surface,’ he had a perfect right, at least before he had made the two building leases, to do so.”
Other English cases might be cited on the question of the interpretation of instruments as to waiver or exclusion of the right of support. From them it is simply a question of intention, in the usual way, from the words used in the instrument.
In McSwinney on Mines, this subject is treated under certain divisions. Under the division “(d),” the first case reviewed is Harris v. Ryding, supra. I quote from that work, on page 339, as follows: “With respect generally to the various cases referred to in divisions (b), (g), (d) and. (e) of the present subject, the following observations may be made. In the earlier cases the courts, in construing the instruments before them, apparently adopted the curious mode, both in the case of land in its natural state, and of land in its non-natural state, of assuming, in the first instance, the existence of an intention, that the right of support should not be disturbed; and of then proceeding to consider, whether the provisions used could not be reconciled with that intention. In the later cases, on the other hand, the courts seem to have assumed nothing; but to have proceeded at once to construe the instruments before them according to their literal and natural meaning. It is, in many respects, difficult to reconcile the earlier with the later cases; and, on these grounds, the difficulty seems capable of explanation. It need hardly be added that the later cases must, at the present day, be considered authoritative.
“Having regard to these circumstances, the following *510propositions may, as the result of the cases, in which the instrument of severance is producible, and in which some contract has been made, or is said to have been made, with respect to support, be considered as established:—
“l. Instruments of severance are, at the present day, construed according to their literal and natural meaning, rather than according to preconceived assumptions of the existence of an intention in the parties, or in the legislature, that the right of support should not be disturbed.
“2. Where it appears from the express words of such instruments, or by clear intendment therefrom, that it was the intention to exclude the right, effect will be given to such intention.
“3. Where the mine owner is relieved from liability for damage, the surface owner may often be presumed to have been compensated by anticipation. But in other cases, the presence of a clause for compensating the surface owner; at all events if it refers to underground working; are material elements in ascertaining an intention to exclude the right.”
* * * *
“7. The common covenants to woi’k in the usual and most approved mode, or the common clause in an Inclosure Act under which mines are reserved to the lord, of holding and enjoying them in as full, ample and beneficial a manner as if the act had not been made; or the common clauses giving full liberty of working and winning; are not, of themselves, sufficient to exclude the right.”
Other propositions are deduced by the author, which I deem it unnecessary to repeat.
From this it appears that the early English cases, such as Harris v. Ryding, are discredited in their own land upon the question of the construction of instruments relating to the waiver or exclusion of support, and are no longer considered as authority at home on that question. They are, however, relied on here as conclusive on that question. It seems to me that these early English cases would come with more force, as persuasive argument, if they had not been discredited in the land from which they come.
It is hardly necessary to say that American cases which adhere to, and follow implicitly in the footsteps of, those arly English cases, on the question of the construction of *511instruments of severance, adopting tlie same “curious mode” of construction, would be discredited in England, and it seems to me in reason should not be followed by us.
In argument, much stress is laid upon the ability and learning of the English judges. I concede it all. I would detract nothing from their world-wide reputation for abilhy and learning in the law: but I do say that the trend of the English courts, with all their greatness, is toward, if indeed they have not already come to, the position, to which every other court it'seems to me must finally come, of construing an instrument conveying coal or minerals under the ground in identically the same manner in which other written instruments' are construed, and in the same manner as instruments conveying any other species of property, free from presumptions or implied reservations not applicable to other instruments of conveyance.
This being the true rule, we seek the intention of the parties to the instrument involved in this case, as the paramount end to be attained. Certain rules of law applicable to contracts are referred to, all of which will simply aid us in ascertaining the intention of the parties. All the provisions of the contract must be considered together. Then resort must first be had to the.language used by the parties therein. As has been said, the contract of the parties is the law to them. The words are to be given their plain, ordinary and popular meaning, unless they have acquired a peculiar sense in respect to'the particular subject matter, as by the known usage of trade or the like, or unless the context shows that the parties used them in some other and peculiar sense. 17 Am. & Eng. Enc. L. 11; Railroad v. Chutte, 103 U. S. 118. When the contract is thus considered, and it appears to be free from uncertainty and ambiguity, and the intention of the parties is apparent, the task is at an end. Uhl v. Ohio R. Co., 51 W. Va. 106; Story on Contracts, section 780; 9 Cyc. 587: Gibboney v. Fitzsimmons, 45 W. Va. 334; Devlin on Deeds, section 837; Salt Co. v. Campbell, 89 Va. 396.
Before the deed in question was made, the plaintiff was the owner of the fee and everything in the land in question. He might have removed the subjacent estate, and permitted the surface to subside. He might have destroyed both, or used them at his pleasure, so long as he did not injure another. *512What he might have done himself, he might grant to another the right to do.
For a valuable consideration, the plaintiff granted the coal under the land in question, which means all the coal, and he granted certain mining rights and privileges, among which was the following: “together with the right to enter upon and wider said land and to mine, exórnate and remove all of said coal. ” It will be observed that these words are not “the common covenants of working in the usual and most approved mode,” or “the common clauses giving full liberties of working and winning.” It cannot be said that the minds of the parties did not meet upon the removal of all the coal, when they so expressed it in the deed.
If the right to support may be waived or excluded by contract, what kind of a contract is necessary for that purpose? The plaintiff granted all the coal, and the ownership of the surface and of the underlying coal was severed, creating a separate estate in each. If the deed said nothing more, the owner of each would be bound by the rule, Sio utere, etc. If the deed said nothing more, I would without hesitation hold that the owner of the surface would be entitled to support, and that the owner of the coal could not so use it by removing all of it as to injure the surface. The deed does not stop with the grant of all the coal. It contains the express additional grant, on the part of the plaintiff, to the grantee, of the right to enter upon and under said land and to mine, excavate and remove all of said coal. It is contended that the conclusion reached in this case overlooks the fact that the law is a part of the contract so far as the parties have not otherwise contracted. I think it does not. I go further, and say that the parties to this contract are presumed to have known the law at the time they entered into it, and to have known that if the deed rested with the simple grant of all the coal and nothing more the grantor would then be entitled to support for his surface. Knowing the law, the parties undertook to further contract. The grantor being willing to give further privileges, and the grantee desiring further privileges, they placed in the deed a further provision granting the right to enter upon and under the land and to remove all of the coal conveyed. This intent gives effect to the additional grant; otherwise, it would seem to be mean*513ingless, and not to grant more than a way of necessity, which' the law would give without it. In fact, that is the position taken by the learned attorneys for the plaintiff. It is true that other mining rights are also granted, and the provisions granting them are not without meaning. But the particular grant of the right to enter upon and under the land, and mine and remove all of the coal, is virtually without meaning if it does not give to the grantee the right to remove all of the coal.
I think there is a vast difference between a grant of all the coal simply, and a grant of all the coal together with the right to enter upon and under the land and remove all of it. Without a right to remove all, the owner of the coal may not do so, if to do so would injure the surface.
As to the waiver or exclusion of the benefit of the rule, Sic utere, etc., upon which alone the right to support rests, I ask in what more effective way may it be waived or excluded by the surface owner, than by positively agreeing or consenting, for a valuable consideration, to the specific use complained of? The plaintiff complains of the use by the removal of all. Pie has by express, positive words, not by implication, agreed to the specific use of which he complains. No claim.is made that the words used have any technical meaning, as applied to the subject matter of the deed. The words are intelligible to all. They mean the same to the linguist and the unlettered. If the English language were searched for words of consent or agreement to the removal of all the coal conveyed, I apprehend that none more appropriate could be found. Then, has the defendant so used its property as to damage the plaintiff? According to the aver-ments of the declaration, it has; but we cannot stop there. Has not the plaintiff consented and agreed to that specific use by his solemn deed, and thus been barred of his right to complain? If the plaintiff is injured by the performance of the contract, is it not damnum, absque i-njuria? I must answer in the affirmative. So long as the constitutional guaranty of the right to contract exists, a man may so contract, and the contract must be respected by the court. If a party chooses by binding contract to agree to an act resulting in damage to his property, he has the right to do so. It is a proper subject of contract. Can the plaintiff say, I have *514agreed in unequivocal terms to the specific use of the defendant’s property of which I how complain, but sic utere 'tuo ut alienum non Laedas. I have agreed to the act, anticipated the injury, and received the compensation therefor. May I not sue and recover the compensation again? I answer, most certainly not. To answer in the affirmative would ■bé to say that the principle, Sic utere, etc., may be invoked to impair the obligation of a binding contract. No such application of this principle is authorized by law. It may not be used to perpetrate a fraud; neither may it be used against the express terms of a contract, or to impair or destroy its •obligation.
“It-is a general rule of law that no one can maintain an -action for a wrong, where he has consented to the act which occasions his loss.” S.'Am. & Eng. Ene. L. 698; 1 Broom’s Legal Maxims, 268, quoting Tindale, O. J.
In other like cases, where a party has so contracted or consented, it would hardly-be contended that he might, notwithstanding the contract, recover damages.
If the owner of a building sell and convey the materials 'in a story of the building, together with the right to remove all of them, may he afterwards complain of the removal of what he sold? If one sitting on a chair in his own home, sells that chair together with the right to remove all of it, and it is removed under the contract, may he afterwards complain because he has not the support of the chair as he [had before the sale and removal? If one agrees that another may do a particular act which otherwise would constitute a trespass to the former’s property, and that act is done pursuant to the agreement, may he complain? It is hardly necessary to say that, in such cases, damages may not be recovered produced alone by the specific act agreed to, if there be no negligence or malice in the manner of doing the act. Illustrations might be multiplied indefinitely. The intention ■of the parties to the deed is apparent, certain and unambiguous, from the language used. The language of the deed gives the grantee the right to remove all the coal.
It may be claimed that, although the grantee is given the right to remove all the coal, if he does so he should provide artificial support. As said by Baron Bramwell, this is impossible, owing to the expense. I doubt if it is possible to *515support a whole tract of land modo et fm^ma by artificial means. It seems to me that there must be some subsidence, some settling, of the surface, if artificial support alone be resorted to. What has been said in relation to agreeing and consenting to the specific use, disposes of the question of artificial support as effectually as the question of natural support. Taking the deed as it is averred to be, we find no express covenant for artificial support. I do not think that artificial support was within the contemplation or intention of either of the parties when the deed was made. No language was used from which such intent may be implied. The court cannot make a contract for the parties, and cannot extend or enlarge one already made.
Many of the English cases lay stress upon the fact that, under the particular instruments before them, the mining rights applied to acts to be done upon the surface of the land only. If anything were needed to show the contrary intent here, the word “under,” when read with the rest of the deed, certainly performs that function. It cannot be said, if the word “under” is to have effect, that it does not clearly mean that the rights granted may be exercised under the land, and that the right of removal relates to the coal conveyed under the land. It may be claimed that the word “under” should be excluded as repugnant. Why should it be excluded? The claim is that it is in conflict with the dominant and primary intent of the deed. Is this true? What is the primary or dominant intent of the deed? The primary or dominant intent is to convey the coal under the ground, and the right to remove all of it xmder the groxmd is not in conflict but consistent with this dominant intent. It is argued that the dominant intent of the deed is to reserve the surface. I cannot agree with that. The plaintiff does not own the surface by virtue of this deed. He was the owner of it before this deed was made. He derived title to it, as well as to the coal conveyed, from some other source. He simply did not part with the surface by this deed, farther than therein specified. No reservation of surface is expressed in the deed. It was not necessary to do so. I must give meaning and effect to the word “under,” because I believe it is rational and consistent with the" residue of the deed to do so. “Rules - of construction are adopted with a view of ascertaining the in*516tention of the parties, and are founded in experience and reason, and are not arbitrarily adopted. They are not intended to make terms for the contracting parties, but simply to ascertain what the language means which they have employed in their contracts.” 2 Devlin on Deeds, section 837.
If, however, there were a doubt (which I do not concede), then the rule that the deed must be construed most strongly against the grantor is applicable. “Where the grant shows the intention, even though ambiguously stated, following the rule that it is construed most strongly against the grantor-, the right to surface support will be held not to exist.” Snyder on Mines, section 1032, and cases there cited. It is said that this rule, that a deed must be construed most strongly against the grantor, is the last rule to be resorted to, after everything else has failed, and for that reason it is inveighed against in argument. If it be the last, and there remains ambiguity after the others have been applied, it must certainly be applied before reaching a decision in favor of the grantor. It hardly seems fair to treat this rule so harshly, when we remember that we have a statute (section 2, chapter 72, Code,) designed at least to emphasize and carry it into effect. Mr. Minor in his Inst., Yol. II, p. 918, speaking of the like statute in Virginia, says that it “seems to be designed to carry this principle of the common law yet further, although there has been as yet with us no judicial determination as to its construction. The enactment is that every deed conveying lands shall, unless an exception be made therein, be construed to include all the estate, right, title and interest whatever, both at law and in equity, of the grantor, in or ’ to such lands.”
I think the language used in the deed under consideration, no matter what may be the ground upon which the right to subjacent support is thought to be based, is sufficient to exclude the right to support. I would apply here the same rules of construction applicable to other instruments of like character conveying other property; no stronger, no weaker, but with the same effect upon all. This is the trend of many of the late cases and authorities and I feel that it is the true rule.
Section 7, chapter 79, Code, is cited as bearing upon this case. In my judgment,' it has no application.
*517It is contended that the court should look at the hardship of a decision in favor of the defendant. If the contract is binding, the court cannot relieve against it because of hardship alone. It is claimed by each side that great hardship will result, in case of an adverse decision. This may be true: but if true, it is a hardship of their own making.
According to the declaration, the plaintiff’s surface has subsided, and damage resulted. If the plaintiff was required to leave, of the coal conveyed to it, enough to support the surface, which is estimated at from one-fourth to one-half of the whole, then the part so left would be of no value in place to the defendant. Under our law, the defendant, being the owner thereof, must pay taxes on the portion left, through all the years to come. It is persistently urged that the modern and best methods of mining require the removal of all the coal for the benefit of the surface: that to do so permits the surface to re-form and the remaining strata to re-unite, thus preventing the continuous draining of the water from the surface. This may or may not be true; I do not know. If true, the damage to plaintiff’s surface may not be so great as it otherwise would be.
My only apology for the length of this opinion is the importance of the questions involved. For the reasons stated, I concur in the decision.