{dissenting):
. I am unable to' concur in the view of my associates in this case, because I do not think it has been, or can be, reached without violating sound and well settled principles, and especially rules governing the interpretation and construction of deeds and contracts. The opinion avowedly disapproves and repudiates vital principles of the law of subjacent and lateral support, declared by every American court that has ever applied that law to a deed or contract by which the surface of land has been separated in title from the underlying coal, as well as the decisions of the English courts. It expressly condemns, by name, the decisions of Alabama, Illinois, Indiana, Iowa, New York and Pennsylvania, and those of Ohio and perhaps other states without express reference to them. It demolishes at one fell blow the entire system of *518English and American law on the subject. This the opinion fully and expressly concedes.
An effort is made, however, to free the case from the operation of the principles declared by the numerous decisions, thus repudiated and disapproved by this Court, but uniformly recognized and rigidly enforced by all others in the English speaking world, because of an alleged variance in the language of this deed from that of the ordinary deed conveying coal without the surface. After conveying all the coal in the tract of land except about three acres, the deed further stipulates, among other things, that “The party of the second part (grantee of the coal) and his assigns is to have the right of way through said reservation for a road, air-course and tram-way necessary or convenient for the mining and removal of said coal and the coal under coterminus and neighboring lands, together with the right to enter wpon and under said la/nd cmd to mine, exórnate and remove all of saidcoadf Immediately connected with this there is further language to be noticed later. Conceding, for the purposes of illustration and argument, that a mere grant of all the coal would not confer, by implication, the right to deprive the surface of subjacent support by removing all the coal, the opinion asserts that the clause above .quoted confers, by express grant, the right to remove every particle of the coal, and that the grant of such right of removal is an express grant of 'the right to take away the support of the surface, because the destruction of the support is the necessary and inevitable result of such removal from und§r the surface, provided no artificial support be substituted. This is the theory advanced by counsel for the defendant in error and adopted by the Court as a means of escape from the effect of the general principles declared by all other courts, in cases involving the interpretation of deeds, severing minerals from the surface by grant or reservation thereof. If it is untenable and unwarranted by the language of the deed, this decision is squarely contrary to said principles, and, in legal effect, as well as declaration of opinion, denies that they obtain in the law of this State, although universally approved as sound in all other jurisdictions. In determining whether this deed may be so distinguished, for the reasons aforesaid, it is certainly not improper to ascertain what reply other courts have made to *519the same contention, based upon similar, if not identical, clauses in deeds of this class. If they have held such clause, taken in connection with a previous clause, granting the coal, insufficient to authorize the destruction of support of the surface and to distinguish the deed from one granting title to the coal without saying more, then this decision ignores and repudiates the application of rules of construction and interpretation, made by courts of- the highest credit and repute, and without showing wherein they have erred in doing so.
One of the earliest cases on the subject, Harris v. Ryding, 5 M. & W. 60, decided in 1839, by the English Court of Exchequer, presided over by some of the most distinguished jurists whose names are recorded in the annals of our jurisprudence, including the great Sir James Parke, construed a deed, which, in all material respects, was like the one now under-consideration here. By it, A., being seized in fee of certain lands, granted it toP., his heirs and assigns, reserving to himself, his heirs and assigns, “all and all manner of coals, seams and veins of coal, iron ore, and all other mines, minerals and metals which then were, or at any time, and from time to time thereafter, should be discovered in or upon the said premises. ” By this language, he retained the title to all the coal. Then follows an additional reservation, which, it was claimed, conferred right to remove all the coal and destroy the support of the surface. It was in these words grammatically annexed to the words of grant: “with free liberty of ingress, egress, and regress, to come into and upon the premises, to dig, delve, search for, and get, the said mines and every part thereof, (Mid to sell, dispose of, talce a/nd convey away the same, at their free will and ‘pleasure.’’'’ In that case, as in this, it was urged that this last clause must have effect; that the words thereof must be deemed to have been used in their usual and ordinary sense and meaning, and, given such effect, that they authorized a removal of all the coal and so necessarily carried the right to injure the surface by destroying its support. Counsel in the argument of that case, said: “The defendant was entitled to work out all the mines, but he could not do so if he was obliged to leave props, which would be of coal to support the surface.” But the court, after mature consideration, replied thus: “Under this reserva*520tion, A. was not entitled to take all the mines, but only so much as he could get, leaving’ a reasonable support to the surface.” The clause of the deed, giving the right to enter upon the land to seek for, get, and to sell, dispose of, take and convey anmy all the said mines and every part thereof was not overlooked by the court in reaching its conclusion. In respect to it, Lord Abinger said: “The defendants’ counsel, therefore, seeks to carry the right of the defendants a step further by t[ie operation of the words in the 'exception, giving a right of ingress upon the land. Now the meaning of that exception was to meet the difficulty the defendants la-boured under, of not being able to enter upon the land to sink shafts, and make use of those shafts for the purpose of getting their mines. I think there is no new right reserved thereby more than the right to use the surface, for the purpose of getting the mines; but it does not enable them to get them to a greater extent, or in a manner unusual and improper, so as to prejudice the surface of the land. I cannot therefore see how the exception relied upon by the defendants at all assists their argument. That exception was rendered necessary by parting with the surface of the land; it applies to the liberty the grantor has of going upon the surface, and does not apply to the right he has below.” Maulé, Baron, said: ‘ T think the covenant or stipulation, giving them the power to go upon the plaintiff’s land, and providing that they are to make compensation for it, applies merely to acts done upon the surface of the land, that is, disturbing the surface by digging, sinking-shafts, and so on; all those things they are authorized to do, but not absolutely, only conditionally upon making compensation; and that libertjr has nothing to do with the right of getting the mines, which may be taken to be done on this occasion without breaking the plaintiff’s soil; but their right to get the mines is the right of the mine-owners, as against the owner of the land which is above it.” Parke, Baron, after setting out the terms of the reservation and the power to enter upon the land and take away the coal, said: “It is clearly the meaning and intention of the grantor, that the surface shall be fully and beneficially held and enjoyed by the grantee, he reserving to himself all the mines and veins of coal and iron ore below. * * * This is the true construction of this deed, in order to make it operate ac*521cording to the intention of the parties. * * * If that is the true construction of the reservation and power, the defendant ought to have stated in his plea that he took the coal he did take, leaving a reasonable support for the surface in the state it was at the time of the grant.”
Another parallel case is Carlin & Co. v. Chappel, 101 Pa. 348. One Brown conveyed to Lewis certain lands by deed containing the following clause: “Excepting and reserving to John Brown all the coal underlying said lots of ground, the right- and full and free privilege of ingress, egress and regress for digging, mining and excavating said coal (for the purpose of mining, digging, excavating and conveying away said coal).” By sundry conveyances, the title to part of the land came to Chappel and the last deed contained this clause: “All the coal underlying the same, together with the full and free privilege and right of ingress, egress and regress, so far as may be required for digging, mining, excavating and conveying away said coal, being vested in John Brown.” Counsel for the defendant in error said in the argument that as the grantor had expressly excepted and reserved all the coal underneath the lots conveyed, with the right to mine and take it away, he and his assigns of the coal were not liable for damages to the grantees of the surface, or their assigns, for any result following the removal of all the coal. But the court unanimously resolved as follows: “Where the owner of land conveyed it in fee simple, excepting and reserving all the underlying coal, with the right of mining, excavating and conveying away the same; and subsequently conveyed to another party the coal and privileges so excepted and reserved: Held, that the grantor’s assigns of the coal were liable for damages occasioned to the owner of the surface by subsidence caused by mining the underlying coal.” In Williams v. Hay, 120 Pa. 485, the deed conveying away the land, expressly reserved to the grantor the right to take all the coal and after-wards the necessary rights of way for the full exercise of the privileges were reserved. It is much stronger than the language used in the deed now under consideration. It reads as follows: “Reserving, however, to the use of the said W. J. Baer, his heirs and assigns forever, the full and perfect right and privilege of searching for, mining, procuring and taking .away by such ways and means as to the said W. J. Baer, his *522heirs and assigns, may seem fit and practicable, all the coal, iron ore, metals, limestone, fire clay, and all other mineral substances, whatsoever, whether solid or liquid, lying and being upon, under, and contained within the surface of the land hereinbefore mentioned and described, (exclusive of the three (3) acres around the buildings,) and the necessary right of way for the full exercise of privileges as aforesaid, Provided, however, that the said W. J. Baer, his heirs and assigns, in mining and removing the coals, iron ore and minerals aforesaid shall do as little damage to the surface as possible.” In view-of the decision in Carlin & Co. v. Chappel, cited, it does not seem to have been urged in this last case that the right to remove all the coal carried with it the right to destroy the support to the surface, but it was insisted that this grant together with the clause recognizing the right to damage the surface, disclosed upon the face of the deed intent to permit the support to be destroyed and the surface thereby damaged. .But the court said: “Where one person owns the surface and another the underlying coal or other minerals, the absolute right of the former to surface support is not to be taken away by a mere implication from language not necessarily importing such result. Such'right is not affected by a clause in the deed conveying the surface but re-. serving the coal, which provides that ■ the grantor, his heirs or assigns, in mining and removing the coal ‘shall do as little damage to the surface as possible.’ ”
■ In Burgner v. Humphreys, 41 C. St. 340, the court held as follows: “If the owner of land grants a lease whereby he conveys all the underlying mineral coal, with the right to-mine md remove the same, the lessee will not be entitled to remove the whole of the coal without leaving support sufficient to maintain the surface in its hatural state, unless the language of the instrument clearly imports that it was the intention of the lessor to part with the right of subjacent support.” In that case the grantor owning a tract of land, bargained, sold, transferred, aliened and conveyed to another “all the mineral, coal, iron ore, limestone and all the other minerals” under or upon said tract of land, and further gave, granted and conveyed to said other parties ‘ ‘the right, privilege and license to enter upon the above described land at. any and all times hereafter and search and explore thereon. *523for said mineral, coal, iron ore, limestone, clay and other minerals, oil and salines, or for any of them, and when found to exist on said lemd, to dig, mine and remove the same therefrom. ” The deed then went on and granted all the rights, privileges, licenses and easements necessary or incident to the proper prosecution of the business of mining and removing any or all minerals of substances aforesaid. It is to be observed here that this deed gave expressly the right to remove all that had been granted. It granted all the coal and granted the right to search for it and remove the same. “Same” in that connection could mean nothing other than all the coal, but the court said the deed conferred no right upon the grantee to disturb the surface by withdrawing its support. No doubt, the clause giving the right to remove the coal was strongly urged hs a relinquishment of the right of support, for counsel for plaintiff in error conceded that the lease of coal carried with it the right to open the mines and explore, and if coal was found to dig and remove it, but they insisted that the mine owner had no right to remove all of it, including props and pillars, in the absence of an express relinquishment of the right of support by the owner of the surface, and the court, as above shown, sustained that view. In Livingston v. Coal Co., 49 Iowa 369, the clause conferring the title to the coal was in this language: “And reserving alT so to said first party, his heirs, successors and assigns, all coal, coal mines, mineral products and oil beneath the surface of, and belonging to, said premises, with full and sole right to mine, and obtain and remove the same, by such means as they deem proper, without thereby incurring, in any event whatever, any liability for injury caused or damage done to the surface of the land in working coal, coal mines, minerals, mineral products and oil, and removing the same, provided the said first party shall not enter on the surface of said lands.” Upon this deed the court held that support for the surface could not be destroyed. Here, it is to be observed that all the coal, together with the right to remove the same* was reserved, which meant the right to remove all the coal, if the language is to have the effect the terms used import.
In all the above mentioned cases, the deeds contained clauses giving the right to remove all that was granted. 'How the deed from Griffin to Camden can be distinguished from them *524is not perceived. It granted all the coal under the tract of land and gave the right to enter upon the land and remove all the coal. Can it be doubted that the deeds in the Ohio case, and in the Iowa case, and Williams v. Hay, 120 Pa. 485, used language purporting to confer the express right to remove all the coal ? There is no claim that the language of the deed under consideration here does more. The deed in Williams v. Hay did that and added a clause which purported to recognize the right of the mine owner to damage the surface, and yet the court said there was no language in the deed by which the intent to waive support of the surface was sufficiently evidenced. In the Iowa case, there was an express grant of the right to remove all the coal, and, in addition thereto, language which purported to relieve the mineowner of any liability for injury caused or damage done to the surface of the land in working coal, coal mines, minerals, mineral products and oil and removing the same, provided said owner should not enter upon the surface of the land, and the court said that was not sufficient. It is said in the ai’gument that this last decision denies to the owner of the surface, on grounds of public policy, the power to release his support by contract. No such reason is anywhere given in the opinion for the conclusion arrived at in that case. Certain English cases, recognizing such right and power are referred to and the principles announced in them not denied or criticised. It was said of them that they did not go so far as to confer the right, under such a contract as the court was considering, to remove all the coal without liability for negligence in not placing-pillars for support of the surface. This may have been an erroneous view of those cases, and the Iowa decision may be wrong, but it is no declaration of public policy forbidding the'owner of the surface to part with his right of support by express contract.
As to the interpretation of this clause there may be differences in some of the decisions above referred to. In Harris v. Ryding, 5 M. & W. 59, Lord Abinger said the clause giving right to enter and remove every part of the coal, was inserted for the purpose of authorizing an entry upon the land, for the purpose of exploring and searching for, and carrying away, the minerals, which he seems to have thought was necessary to give such right of entry. In this view, Maulé, *525Baron, concurred, and thus they denied to it evidence of intent to authorize the removal of all the coal. Parke, Baron, without giving any reason for its insertion, said, “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.” The American cases seem to concede that a clause granting the right to remove all the coal will authorize the removal of all of it, but will not carry, by implication or otherwise, the right to destroy the support of the surface. They say it does not amount to an express relinquishment of the right of support and that no such right can be relinquished otherwise than by express language, disclosing plain intent to do so.
But it is said that, if the clause giving right to remove all the coal does not authorize the destruction of the support of the surface, it has no effect, for there is no other function it could perform, and the parties are not presumed to have used any language in their contract without purpose, and that the rules of construction require that every word shall have some effect, if possible, and as much effect as it may have consistently with other parts of the instrument. No fault is to be found with these propositions of law. They are sound and incontrovertible, but how about their application to the clause used in this deed? By reference to Judge McWhoe-ter’s opinion, it will be seen that the first part of the clause relied upon confers a right of way through a reservation of coal in the plaintiff’s land, which the grantee did not take by his deed and through which he could have no right to go without an express grant of the right of way. There was necessity for this part of it. It performs an important function. Then follows this language: “Together with the right to enter upon and under said land and to mine, excavate and remove all of said coal. ” But it does not stop there. It goes on and confers the right to remove upon and under this particular tract of land, coal to be mined upon other tracts of land, coal which had been, or might be, purchased from persons other than Griffin. There was reason, therefore, for not stopping with the mere grant of title to the coal and a way through the three acre reservation. Without this clause they could not have removed, through Griffin’s land, coal taken out of lands of other people. There was absolute necessity *526for these two additional clauses. There rnajr not have been -any absolute necessity for so much of the stipulation as conferred the right to enter upon and under said land to mine, excavate and remove all of said coal. The grantee of the coal would have the right, under the law of necessity, to do this. When a man grants a thing he grants with it, by necessary implication, the means of getting to it. But this principle does not prevent the parties to a deed or contract from expressly stipulating for rights which the law would give without such stipulation. Illustrations of this are to be found in almost every oil lease and coal lease and purchase of timber, operative within the limits of the State. Although, when timber is purchased on a tract of land, or oil and gas under it, or a lot or tract of land out of the interior of another, and left surrounded by the residue, the law gives the right to go upon the land and cut the timber or bore for oil and gas, and a right of way to the owner of the lot or tract ■of land so purchased and situated, the deed or contract almost ■always contains an express stipulation for such right of entry or way. This denies that express contracts for rights which the law gives are deemed useless and without purpose. Are express contracts never made where the parties may rest their rights upon the law? Money advanced without an express contract of repayment may be recovered. Goods, wares, and merchandise delivered to a party and by him consumed, without an express promise to pay for them, gives a right of action for the recovery of their value. But does this principle prevent men from taking notes in such cases? And, if in such case, a man takes a note for the money or the value of the goods, is he regarded as having done a vain, useless and foolish thing? If Mr. Camden preferred to have an express stipulation in his deed for entry upon the land, mining, excavating and removing the coal, rather than rely upon the law of necessity, giving him these rights by implication, is he to be regarded as having had it inserted for no purpose whatever, because, forsooth, the court denies to him the right to establish some other or different purpose or reason for its insertion? Will his assignee be permitted to advance, as a pretext upon which to found the construction it wants, the lack of another and different and baldly apparent purpose? If the ■court will not permit it to operate as a relinquishment of the *527right of support, could he not rely upon it in the court as a covenant for the right of entry upon the land? If we say no other purpose than to authorize the destruction of the support of the surface is discoverable, then we must say that, in no case in which a man could assert his rights without written evidence of the contract, does the taking of such evidence admit that there was any reason for it or purpose in 'it. But this is not all. The law gives no more than is necessary. It does not consult or provide for the mere convenience of the party who must appeal to it alone for his rights, but gives only what he can get along with. Parties often want more than this, and, therefore, stipulate for it. • So did Mr. Camden in this case. After providing for entry upon the land for the purpose of mining, excavating and removing his own coal and the coal from adjacent coterminus and neighboring lands, he, in the same clause and immediate connection, stipulated for the right to make all structures, road ways, excavations, air-shafts, drains, tramways and openings necessary or convenient for the mining or removal of said coal and the coal from coterminus or neighboring-lands. Not satisfied to depend upon the law of necessity for the privileges of structures, roadways, excavations, air-shafts and so on, he stipulated for all such things as might he convenient. Can it be said that this does not evince a purpose limited to the working of the mine conveniently and successfully which stops short of the right to take away the support of the surface, and that, if he cannot take such support under this clause, the clause is useless and valuless to him and there was no reason for putting it into the contract? An af-. firmative answer to this question would do violence to the rules of construction and be at variance with the known practice of all classes of business men everywhere, at all times, and in all relations. Even if this express contract did not broadén the rights of the grantee in extent, as to the rights of way and structures, it is a contract of a higher nature than a mere implied right, for such right is merged in it. An action for its vindication would have to proceed upon the express contract. But it is said no reason is yet assigned for the use of the word “all” in the clause conferring the right to remove the coal. Why did not the stipulation stop with a grant of the right to mine, excavate and remove “the coal” *528or “said coal?” Does not the word “all” prefixed signify every particle of the coal? Can it mean anything else? Plainly it does not necessarily mean that. In seeking its meaning we must consider it in connection with its immediate context, the language of the clause in which it appears. The purpose of that clause is to give the right to necessary and convenient roads, ways, structures, shafts, etc., and it was desired that such necessary and convenient things should extend to all the coal, that is, to the coal under all portions of the coal area purchased, the coal in the northern, southern, eastern, western, central and all other portions of that area, and the most apt words and expressive terms for securing such right were “all the coal.” That is the sense in which it is generally used in conveyances. A deed generally grants all of the tract of land, which it purports to convey. In a sale of timber or growing crops, the contract almost invariably uses the word “all,” unless something is to be excepted. Its use here by no means necessarily signifies intent that every particle of the coal may be removed.
It being thus demonstrated that this deed differs in no essential or material respect from those construed, by courts everywhere, as not authorizing destruction of the support of the surface, and as leaving the parties, as to the matter of surface support, in the situation in which they would be if the deed merely conveyed the coal, reserving the surface, or conveyed the surface, reserving title to the coal, it becomes necessary now to inquire whether this construction is right, as tested by the rules of construction and to point out the fallacy, if any, in the numerous decisions which have so construed such contracts, and, incidentally, to ascertain whether the reasoning found in Judge McWhorter’s opinion has clearly demonstrated misapplication of the rules of construction in the long line of decisions which the Court repudiates and overthrows.
In deeds, as well as in other contracts and in statutes, the intention controls, and the object and purpose of all interpretation and construction is to ascertain the intention. For this purpose, rules have been devised and prescribed by the courts. Dominant over all other rules of that kind is the one which declares that the whole instrument shall be considered and the intention expressed in every clause and in every word *529thereof shall be reconciled and harmonized, if possible. 13 Cyc. 605. Chitty on Contract, Volume 1, page 106, states this rule in different language and as the' language strongly illustrates the meaning of the rule it is quoted. “An agreement or contract shall have a reasonable construction, according to the intent of the parties: as if a man agree with B. for twenty barrels of ale, he shall not have the barrels when the ale is spent.” “In the construction of contracts, all the provisions thereof shall be taken into consideration and reconciled if possible, so that the true intent of the parties to the contract may be ascertained.” Barber v. Ins. Co., 16 W. Va. 658; Heatherly v. Bank, 31 W. Va. 70. Closely akin to this great dominant rule, requiring the construction of the contract as a whole, comes the next most important one, namely, some meaning must be given to every clause, word and expression, if it can reasonably be done, consistently with the general intent of the whole instrument, - so that the deed may operate, if by law it may, according to the intention of the parties. Another rule of great importance, but clearly subject to exceptions and modifications, where the application of the rules above referred to require it, is that which says words must receive that interpretation which is given by the common usage of mankind. That is, as a general rule, the words must be given their popular ordinary meaning. This rule is subject to many exceptions, but the other two are subject to none. They are invariable and unalterable. Whether a word is to be given its literal meaning must be determined in view of the circumstances under which it is used and the context. Where a word has a popular meaning and a technical meaning, the rule requires that the technical meaning shall prevail. Non-technical words are not to have their plain, natural, grammatical established, definite, usual, obvious and ordinary meaning, if the paper is ambiguous on its face. 13 Cyc. 606. Nor are they to have such meaning if, to give it to them would prevent a rational exposition of the whole contract. Id. “A literal interpretation will be abandoned where it leads to a capricious and irrational result, if such rational exposition can be followed.” Id. It is upon this rule, relating to the sense in which words shall be taken and given effect, that the whole theory of- the defense to this action is based. It is upon this rule that the *530whole contention of counsel for defendant in error, as to the construction of the deed, is founded. It is obviously subsidiary and subordinate to the two rules above referred to, and if in applying it to this deed, as counsel for defendant in error contend, it conflicts with the result of the application of the other two rules to the contract, then it must yield.
What is the general intent manifested by this deed? The grantor owned the tract of land from the sky to the center of the earth. He granted away the coal only. Therefore, he retained the surface. He did not reserve the surface, he excepted it by putting no language in the deed which could take any part of it away from him. The dominant intent of the whole contract is that the grantor shall retain the sui'face ■and the grantee shall have the coal. All other parts of this ■deed must receive such construction as will not make them •conflict with this general intention, if it be possible to do so, :and yet give them some reasonable operation and effect. 'Other parts must not have such effect as to deprive the grantor of the surface or any part of it, unless they so clearly express that intention as to make it necessary to give them that •effect. The court cannot presume that by retaining the surface there was any intention, on the part of the grantor, to retain it otherwise than in that state in which nature placed •and left it. If, in his hands, it is to become punctured with craters and holes and riven with fissures, so as to deprive him of the use and benefit of it for those purposes for which, by nature, it is fitted and designed, he does not retain the surface in the true and full sense of the word. If, having bargained for the surface, he is to be put off with a broken, ruined and useless piece of land, he does not get what he bargained for. Hence, it will not be presumed, in the absence •of words expressly showing it, that he intended to let the ■.support go from under his surface, for the very reason that loss of the support is loss of the surface itself, and the whole general intent of the contract, viewed as a whole, is defeated ¡so far as the grantor is concerned, and thereby the first great rule of construction violated. On the other hand, the intent plainly disclosed is that the grantee shall have the coal and all ■of it. And if he is entitled to all of it, he may remove all of it, but he cannot take with it any part of the surface, because the intent that the grantor shall have that is just as full and *531plain as the intent that the grantee shall have the coal. Therefore, although entitled to remove all the coal, if this contract gives such right, he still has no right to withdraw the support, because he may substitute artificial, for the natural support. Impracticability of artificial support, because of the great expense is the only answer to this. But that depends upon the circumstances. As a matter of fact, such support is sometimes employed. The books contain reports of cases referring to instances of the substitution of artificial, for natural, support. But, be this as it may, the deed cannot be so construed as to take away any part of the surface, if the other portions of the deed can have some reasonable effect without doing so. Bepugnance is to be avoided if possible. That which is plainly guaranteed to the grantor by an exception, the surface, cannot be cut down or impaired by another clause of the deed, if that other clause can have reasonable effect in some other way, — can subserve some other purpose useful to the grantee. That it can, and does, has been clearly demonstrated. It gives the important rights of entry upon the land, of excavation, of removal, and of necessary and convenient ways, shafts, structures, etc., as to all the coal, and, if it be limited to these things, plainly co-extensive with the utmost signification and import of its terms, the clause is consistent with the general and dominant intent of the whole instrument. Thus every portion, provision, clause and word is given effect as required by law. The other construction would defeat the general intention and subject the whole instrument and the general intention to the domination and control of the single word “all” and without necessity, as has been clearly shown. This would stand aside the great rule, requiring effect to be given to the general intent, which is absolute, for the subsidiary rule, requiring effect to be given to every word, which is not absolute except to the extent that some function must be found for each word. It is not absolute as to what office it shall perform or the extent to which it shall be effective, and under it, the import and meaning of mere words are required to be curtailed and limited so as not to conflict with the general intent expressed.
“And as the meaning to be put on a contract is that which is the plain,'clear, and obvious result of the terms used there*532in; so these terms are to be understood in their plain, ordinary, and popular sense, unless they have, generally, in respect to the subject-matter, — as by the known usage of trade or the like, — acquired a particular sense, distinct from the popular sense of the same words; or unless the context evidently points out that they must, in the particular instance, and in order to effectuate the immediate intention of the parties to that contract, be understood in some other special sense. And the same rule has been thus stated: “words are to be construed according to their strict and primary acceptation, unless, from the context of the instrument, and the intention of the parties to be collected from it, they appear to be used in a different sense, or unless in their strict sense they are incapable of being carried into effect.” Chitty on Contracts p. 113. “As a rule, the terms of a contract are to be understood in their ordinary and popular sense, rather-than in their strict grammatical or etymological meaning. Subject to this rule, words are ordinarily to be understood in their plain and literal meaning. * * * However, the literal meaning will not be adopted by the court against the intention of the parties as evidenced by the entire contract.” Hammon on Contracts, pp. 812-13, section 412. “As in the case of all contracts, the intent of the parties to the deed, when it can be obtained from the instrument, will prevail, unless counteracted by some rule of law. * * * The rule is that the intention of the parties is to be ascertained by considering all the provisions of the deed, as well as the situation of the parties, and then to give effect to such intention, if practicable, when not contrary to law.” Devlin on Deeds, section 836. “Manifestly, no general rule can be laid down as to the construction of particular words. The primary object courts have in view is to carry out the intention -of' the parties.” Id. section 864. In order to do this, words are often ignored entirely or discarded as meaningless and useless, and, in some instances, a meaning and effect are given to them entirely different from what they import, in order to effectuate the general intention shown by the deed. Numerous illustrations of this might be given but one or two will be sufficient. If it appears, from the terms of a deed, and the circumstances connected with the execution that the grantor meant children, although he used the word “heirs,” effect *533will be given to it accordingly, and the deed will not be' defeated, by the general rule that a conveyance to the heirs of a living person is void. Heath v. Hewitt, 127 N. Y. 166; Vickars v. Lee, 104 N. C. 248; Griswold v. Hicks, 132 Ill. 132; Broliar v. Marquis, 132 Ill. 194; Broliar v. Marquis, 80 Ia. 49. The term “heirs at law” may be construed as children, or grand children, where such a construction will effectuate the grantor’s intention, and is consistent with legal principles. Waddell v. Waddell, 99 Mo. 238. “Generally whatever is inconsistent with the real intention of the parties as ascertained from the language of the whole instrument may be rejected as superfluous, or false or mistaken, or repugnant, provided no rule of law be violated thereby, so as to give effect to the deed according to the intent. But although words may be rejected which are repugnant to other parts of the deed and to the general intention of the parties, nevertheless no word is to be rejected, unless there cannot be given a rational construction to the instrument with the words as they are found.” 13 Cyc. p. 619, article on deeds.
Under the application of these rules there can be no doubt that the general intention of the parties to the effect that the grantor shall have the surface in the full sense of the term and the grantee the coal, must govern and control the subsidiary clause giving right to enter upon the land and mine, excavate and remove all the coal, for these words may have reasonable and important force and effect without working such disturbance, and, under these rules, the court must so limit their effect. This clause adds nothing to the grant of the coal. The grant alone gives the right of removal of all of the coal, if it can be done without depriving the surface of its support. No additional words are required to confer that right. It exists without any additional clause. The mere addition of the right to remove all the coal, without language in connection with it, disclosing intent to allow the surface to be thereby injured, leaves the parties in the same situation as if the deed stopped with a mere grant of the title to the coal. The value and character of the surface in its natural state cannot be cut down or impaired without the employment of language expressly and necessarily showing such intent.
Under the operation of these rules of construction the *534courts have said, uniformly, that, in order to take away the right of support, the language used must not only authorize the taking of all the coal, but must go further and authorize in terms or by such language as clearly shows the intent, the letting down of the surface. There must be some words which can refer to nothing but the surface. No such language appears in this deed; no right to compensation for damages to the surface is stipulated for. No word is used which says the surface may be let down or necessarily means that. In Davis v. Treharne, 6 App. Cas. 460, Lord Blackburn said, in construing a coal lease, under which royalty was to be paid, not a deed conveying coal, that, if the lessor had said by express words or by necessary implication, you may take away all the minerals, or, you shall take away all the minerals, letting down the surface, he would thereby have relinquished his right of support, and that the fact, that it was to the interest of the lessor to have all the coal removed because he derived a royalty therefrom, might be considered as material on the question of intent. But the words of that lease omitted to say the surface might be let down and it was held that the support could not be withdrawn from under it, although it was a lease and although it contained a clause stipulating for compensation to the lessor for any damage or injury done to the surface of the said farms or lands. This stipulation was referred to, and held to be governed by, the clause giving the right to erect buildings and machinery and • to do and execute all such other acts, works and things, upon, in, or under, or above the said premises, as should be necessary and convenient for working and carrying away the minerals, and that the use of the word “under” in that clause did not make it applicable to operations carried on under the surface so as to permit injury to the surface by a withdrawal of the pillars. The general intent disclosed by the whole contract rendered this word irreconcilably repugnant thereto and it was thrown away and not allowed to control the general intent, because its connection was such, its location such, that the court could see that it was never intended to have such effect, and was intended to play a subsidiary and comparatively unimportant part in the contract. It was restrained by its immediate context and had to yield under the force of *535the general context, and the contrary intent appearing from the whole instrument.
Now what are held to be deeds and contracts giving the right to take away the support of the surface? What language is sufficient to disclose intent, on the part of the grantor, to relinquish it? In Smith v. Darby, 7 L.R.Q.B. 716, a deed was held sufficient for that purpose, because it conferred upon the lessees the right to enter and work and take the minerals by this clause: “they, the lessees, their executors, administrators, and assigns, making reasonable satisfaction to the lessors, their heirs and assigns, and their tenant and tenants, for the damage done to them respectively by the surface of their lands being covered with rubbish or otherwise injured, or as he or they should or might sustain, as well by the injury done to the lands of the said lessors in sinking and getting the said mines and mineral and converting coal into charcoal, as for such damage or injxvry as may be done or caused in the dwelling house or other buildings of the said lessors by getting mines of coal, ironstone, or other stone or other minerals under or near to any of the dwelling-houses or other buildings of the said lessors, according to the covenant hereinafter contained.” Following this was a covenant that the lessors, in case of damage or injury to any dwelling-house, cottages or other buildings already erected, or to be thereafter erected on the land in lieu of those then on it, and not of greater value than those then on it, “by reason of any minerals being got under them, or so near to them as to occasion such damage or injury, the lessees and assigns shall at their own cost, on six days’ notice by the lessor, rebuild or repair any such buildings so damaged and injured, and put them in as good condition and repair as they were before the damage was done.” There was a further stipulation for the payment of damages done to the crops on the surface. These provisions of the contract clearly showed an intention to allow the surface to be injured. They had direct reference to injury to the surface by withdrawal of its support, and, seeing that in the language of the contract, the court said it must have effect according to the intent of the parties. It was impossible to say that buildings could be injured by getting coal under them otherwise than from subsidence of the surface and that could result only from lack of support. *536Hence, the language clearly showed, that the support might be withdrawn. Eadon v. Jeffcock, 7 L. R. Ex. 379, proceeds on the theory of a difference between a lease and a deed, and seems to go a step further, but in Davis v. Treharne, above referred to, Lord Blackburn disapproved that case and said the intent to relinquish the right to support must affirmatively appear in a lease as well as in a deed; and the principles announced in Smith v. Darby are also inconsistent with the theory of Eadon v. Jeffcock. In Scranton v. Phillips, 94 Pa. 1, an executory contract of sale determined the rights of the parties in respect to the coal. It excepted and reserved to the vendor the coal under the tract of land and provided that on full payment of the purchase money the grantor was to execute and deliver a good and sufficient deed in fee simple, “reserving the coal and privileges above stated, and with a full and unconditional release and discharge forever, on the part of the said party of the second part, her heirs and assigns, to the party of the first part, his heirs and assigns, from a/ny liability for a/ny vnjury that may result to the surface of the said premises from the mining and removal of the said coal; and with a quit-claim on the part of the party of the second part to the party of the first part, his heirs and assigns, of all right, title and interest in and to said coal, and the privileges of mining and removing the same as aforesaid.” In the opinion of the court, this contract sufficiently disclosed intent to permit the surface to be injured by the withdrawal of support. It is stipulated that there should be no liability on the part of the mine owner for any injury that might result to the surface of the said premises from the mining and removal of the said coal. There was no room to say the injury to the surface contemplated might result from entry upon the surface and doing acts thereon. The language was susceptible of but one signification. It said injury to the surf ace. from the mining and removal of the coal, from taking the coal from under the land, so as to inflict injury by subsidence of the surface. What a vast difference between that contract and the deed here under consideration! Where, in this deed, is there a waiver of damage for injury to the surface, or reference to such injury? Search for it will be made in vain. In all these cases, the contract showed an affirmative intent to permit injury to the surface by withdraw*537al of the support, and the language used expressing that intent was such that it could be referred to no other subject than injury to the surface by removal of the support. Another case in which support was allowed to be taken away, without liability, is that of Duke of Buccleuch v. Wakefield, 4 L.R.H.L. 377. It arose under an Act of Parliament, providing for the inclosure of a commons, the minerals under which were owned, at the time of the passage of the act, by the Duchess of Buccleuch, and the surface held by her tenants. The forty-third section of the clause of the Act provided that the owner of the mines should work them “in as full and ample a manner to all intents and purposes as would or might have been done if the said lands had remained open and uninclosed, or this Act had not been passed, without any interruption whatsoever, yet nevertheless making reasonable compensation for damages done by such works as aforesaid to the person or persons sustaining such damage.” The court found that prior to the passage of that Act, it had been the usage, custom and practice, of the owner of those mines to take away the support of the surface and pay the tenants the damages occasioned thereby, and as the act provided that the working of the mines should go on in all respects as if it had never been passed, it was held that the mine owner had the right to remove the support but was liable for the injury resulting. By accepting their deeds under the Act of Parliament, the parties were deemed to have assented to the provision of the Act, which authorized the working of the mines to continue in the future as they had been carried on previously. Rowbotham v. Wilson, 8 H. L. 348, arose under another inclosure act. Under it, commissioners were appointed to allot the land, according to the rights of the various persons interested in them, including the mines. The award of the commissioners, assented to by the persons among whom the partition was made by them, provided that the land so allotted should be lawfully held and enjoyed by the allottees without molestation and without any mine owner being subject to damages on account of working and getting the mines, or by reason that the lands might be rendered uneven and less commodious to the occupiers thereof, or by sinking in hollows, or being otherwise defaced or injured. The court held that, whatever is the general right in the surface to sup*538port, this clause in the award operated as a grant of a light to disturb the surface of the land. But there was nothing left to implication in the terms of that award. They expressly referred to the surface and exonerated the mine owner from liability for injury to it by causing it to become uneven or to sink in hollows or to become otherwise defaced and injured. The language used could perform no other office than that of a relinquishment of a right of support, as in the Pennsylvania case and in all the other cases in which such effect has been given to the deed.
The requirement of expression of intent to impair the surface in connection with the grant of right to remove the coal, stands upon sound reason, arising from the nature of the right of support. There must be enough to enable the court to see that there is a covenant on the part of the surface owner not to sue the mine owner for damages for injury to-the surface resulting from subsidence, or in any way molest him in the working of his mine. If the right of support is an easement, or a right ex jure naturae, it is a right which cannot exist except as incident to, and a part of, the surface. It cannot be annexed to the coal for, by its nature, it is incapable of such annexation and cannot pass with a grant of the coal. It cannot pass by grant in connection with the coal, nor in any way, because when it is disconnected or eliminated from the surface it ceases to exist. There must be a subject of grant in order to effectuate a grant. The thing which language purports to grant must be capable of being given to another. This easement is not. Bonomi v. Backhouse, E. B. & E. (92 E. C. L.) 622. Nor can it be the subject of release in the legal sense of the term, because a release passes an estate, or right. In other words, it passes title; and as this right is- incapable of existence except as part of the surface, it cannot be passed to another, unless he has the surface which is necessary to its existence. This view is explained in Rowbotham v. Wilson, by Lord Chelmsford, as follows: “But although the thing itself, namely, the righc to support cannot pass by grant, nor be extinguished by release, yet the covenant amounts to a grant of license to do acts which may be completely destructive of that right; and being by deed, and therefore presumed to be founded upon good and sufficient consideration, it is irrevocable and bind*539ing upon all who claim the surface land from Pears. The effect of Pears’ deed is, not to transfer to Howlette any right or interest in the coal which might serve as a support to the surface-land, but it operates as the grant of right to How-lette, his heirs and assigns, to work the mines without molestation, denial, or interruption, even to the taking away this support, and defacing and injuring the surface of the land, which, without such a grant, could not lawfully have been done.” As tested by the decisions hereinbefore adverted h> and by the rules of construction, which are laws to which the court must bow and submit, the mere grant of a right to remove all the coal, unconnected with any words giving right to damage the surface by withdrawal of the support therefrom, does not amount to a grant which can operate, or be effective, as a covenant not to disturb, molest or sue the grantee for such injury to the surface; for the reason that the words “all the coal” are susceptible of more than one meaning. It is an uncertain equivocal grant, not necessarily meaning that the support shall be withdrawn, and grants or covenants which fall short of that intent cannot protect the grantee in the destruction of the right of support.
Another rule of construction which is favorable to the defendant in error, if it were applicable, but which does not seem to be relied upon in the argument, remains to be considered. It is that in deeds and contracts, the language of the grantor, covenantor or promisor is sometimes to be taken most strongly against him. This applies when there is doubt as to the meaning of the contract. It cannot avail here. Ham-mon on Contracts, at section 413, names six exceptions to which this rule is subject. 1. There must exist in the terms of the contract an ambiguity justifying more than one construction of it. 2. It will not be allowed to defeat the plain intent of the parties as gathered from the entire instrument. 3. It is inapplicable where the terms of the contract were concurrently settled by both parties. 4. It is not allowed where the contract contains anything in its nature odious and unequally burdensome. 5. It does not apply to grants from the sovereign. 6. It is not resorted to in any case until all other rules of construction have been tried and have proved ineffectual. See Chitty on Contracts, p. 137. Any one of he first, second and sixth exceptions will defeat the applica*540tion of this rule to this case. The contract is not susceptible of two constructions. To apply the rule would defeat the plain intent to be gathered from the whole instrument. Other rules of construction make the intention of the parties clear. ‘ ‘This rule is subservient to the ascertained intention of the parties, and is to be modified by the rule requiring effect to be given every word so far as possible; nor is it to be applied or invoked until all other rules of construction fail.” 13 Cyc. title Deeds, clause Construction against grantor, 609. Of this rule, Chancellor Kent says: “It is a rule of strictness and rigor, and not to be resorted to but where other rules of exposition fail. The modern and more reasonable practice is to give to the language its just sense, and to search for the x>recisc meaning, and one requisite to give due and fair effect to the contract, without adopting either the rule of a rigid or of an indulgent construction. 2 Kent. Comm. 556. The ambiguity which calls into effect this rule, must be, according to all the authorities, one which will not yield to any other treatment, one which, like Banquo’s ghost, will not down at the bidding of any other rule. It must be an obstruction which defies crow-bar, pick and shovel, sledge and stone wedges, drill, black powder and dynamite, and requires, for its demolition, the volcanic action of nitro-glycerine.
All that has been said thus far in this opinion, however, has been put aside by the declaration that this deed is free from ambiguity, in consequence of which no rules of construction can be invoked or applied. The majority opinion, as well as the brief for counsel for defendant in error, asserts and reiterates that the contract is clear and free from ambiguity. I assert that a contract or deed must be read in the light of the rules of interpretation to ascertain whether it is ambiguous. The mental process of analysis must be performed in the reading of the contract in obedience to the rules of construction. The legal effect of the instrument cannot be determined from one clause. All must be read and collectively viewed. No words or clauses will be limited or transposed or otherwise altered from the arrangement in which they are found or the ordinary sense in which they are used, unless some conflict is found to exist, but whether there is such conflict must be determined from an analysis of all *541the parts. ‘ ‘It would seem to follow, from the statement just made as to the object of interpretation, that if the language of the instrument is plain and unambiguous in itself, there is no room for interpretation or construction, and it is quite frequently so stated. But in determining whether there is such an ambiguity as calls for interpretation the whole instrument is to be considered, and not an isolated part thereof, this being merely an application of the rule considered Toe-low, that the instrument is to he considered as a whole." 17 Am. & Eng. Ency. Law, 4. The first great dominant rule of construction is used first to determine whether there is ambiguity, and that rule controls all other rules of construction. The assertion made, as to lack of ambiguity, a mere assumption based upon three words of this deed, was made in a case lately pending in the Supreme Gourt of the United States, with reference to a contract which that court had under consideration. But that court, the highest in the land, and at least the equal of any other in the world, speaking through Mr. Justice YV'hite, replied as follows: “The fallacy which underlies the assertion as to want of all ambiguity in the bond arises, therefore,-from presupposing that in order to establish want of ambiguity in a contract a few words can be segregated from the entire context, and that because the words thus set apart are not intrinsically ambiguous, there is no room for construing the contract itself. In other words, the confusion of thought consists in failing to distinguish between the contract as a whole and some of the words found therein. If the erroneous theory were the rule, then, in every case, it would be impossible to arrive at the meaning of a contract, in the event of difference between the contracting parties, since each would select particular words upon which they relied, and thus frustrate a consideration of the whole agreement. The elementary canon of interpretation is, not that particular words may be isolatedly considered, but that the whole contract must be brought into view and interpreted with reference to the nature of the obligations between the parties, and the intention which they have manifested in forming them.” O'Brien v. Miller, 168 U. S. 287, 297. “The meaning of the parties to written instruments must be ascertained by the tenor of the writing, and not by looking at a part of it.” Boardman v. Reed, 6 Peters 328. “When *542the substantial thing which they have in view can be gathered from the whole instrument, it will control mere formal provisions, which are intended only as a means of attaining the substance.” Carnal Co. v. Hill, 15 Wall. 94.
The keynote of the majority opinion is “when a person sells a thing with the right to remove it, or the right to occupy and use it, that he is conclusively presumed, in the absence of a contract to the contrary, to have included in the consideration not only the value of the thing sold, but compensation, for the inconvenience and injuries which will necessarily result by removal or occupation.” The fallacy of this proposition is that it assumes everything at issue. It is merely saying in another form and in different words that the contract is not ambiguous. It assumes that the question of the right to remove the coal without leaving support has been determined. Illustrations of the alleged rule are given by saying the sale of logs in the tree, wool on the sheep’s back and a growing crop, etc., with the stipulation of the privilege of severing and taking the same away, confers complete title and full dominion over the thing sold. But suppose the purchaser of the wool on the sheep’s back should set up a claim, in view of his peculiar practice or mode of enjoying and using such property, to the right to destroy the hide of the sheep, upon the theory that he is entitled, under his contract, to take all the wool and should have that part of it which extends into the skin. Or suppose one who sells a growing crop of clover, stipulating further that the vendee shall have the right, to enter upon the land, sever and remove all of said clover, and the grantee should set up, under that contract, a claim to the right, not only to take so much of it as stands above the ground, but to turn his hogs in upon it to dig up and consume the roots. All this would be strictly within the literal meaning of the terms, but no one would pretend to say that any such claims could be sustained. The man who has the title to property and the right to remove the same or otherwise use it must do so in such manner as not to injure the property of another. 8io utere tuo ut aliemom non laedas, (so use your own as not to injure another’s property,) and prohibeUor quis facial in suo quod nocere possit alieno, (it is prohibited to do on one’s own property that which' *543may injure another’s,) are maxims enforced by all the courts, known to our jurisprudence. They are a part of the common law, and .as old as the law itself. No man can free himself from their operation except by a contract which expressly exonerates him from the burden of them. They are rigidly and vigorously enforced by this Court. McGregor v. Camden. 47 W. Va. 193; Powell v. Bentley & Gerwig Co., 34 W. Va. 804. This old and universal law says when a man buys a thing with the right to remove it or occupy and use it, he cannot use it in such manner as to injure the property of another. Title alone gives right to remove and use. Every owner of property has that right, but the law limits that right to the extent of the maxims just quoted, no matter how or from whom he acquired the property, or what its character may be. Here the surface belongs as clearly and as fully to the plaintiff in error as does the coal to the defendant in error, and not one word of the contract necessarily, or fairly, confers upon the owner of either, the right to use his property so as to injure that of the other, except the express stipulation for rights of entry for certain specified purposes. A contract, by which a thing is sold and a right to remove it is conferred, must be governed to some extent by the nature of the thing so sold. Coal differs in its situation and in its nature from all the things enumerated in the opinion. There is no ground upon which a fair and just analogy between coal and any of them can be predicated. An element to be considered in ascertaining the meaning of all contracts is the nature of its subject matter, and this rule is utterly ignored in the comparison made. “In construing a contract the Court considers its subject matter,' and reads it in the sense most agreeable to the nature of the contract.” Ham. Cont. section 400, p. 196.
It is also said that difference in conditions prevailing in England where the principles of law found in the decisions relating to contracts of this kind originated, from the conditions prevailing here, furnishes some ground or reason for departure from those principles. Coal is coal the world over, has like uses and value everywhere and is mined and handled in the same way wherever use is made of it. The surface has the same general uses and value in *544all parts of the civilized world. If any difference should be made, probably it would favor, rather than militate against, the adoption of the principles of the English decisions. In England, much of the coal seems to lie in comparatively level regions and near the surface, so that the inconvenience of supporting the surface is greater than it is here where the coal, for the most part, is found in the mountains and overlaid with hundreds of feet of solid rock, in consequence of which less coal need be left here for the purpose of support. Another criticism made in the brief of counsel for defendant in error, but not mentioned in the opinion is grounded upon an alleged, unjust and unsavory origin of the English decisions on this subject. It is said that the nobility owned the surface and prided themselves upon the number and breadth of the acres held, while the villains, in the feudal ages, operated the mines, and the courts, under the control or influence of the nobility, steadily ruled in the interest of-the latter. So far as my limited investigation has revealed the history of the mining of coal in England, it does not sustain this charge, even if, in view of the reasonable and just principles upon which these decisions rest, as viewed in the light of present conditions, it merited any remark or attention. In most of the cases reported, the title, disclosing rank and fortune, is prefixed to the name of the defendant and not to the name of the plaintiff who brings the action for injury to his surface.