Griffin v. Coal Co.

Pofeekbarger, Judge,

(dissenting), Additional Opinion.

■ Since the decision of this case and the filing of a petition for rehearing, my associate, Judge Cox, has prepared another opinion, setting forth the principles which, in the opinion of the majority of the Court, govern the construction of deeds of the class to which the one under consideration belongs, and stating their conclusion. My former opinion dealt with the case as disposed of by the opinion prepared by Judge McWhorter, embodying the opinion of Judge Mason of the circuit court. As the new opinion of the majority of the'Court states a foundation for their conclusion, somewhat at variance with the views of Judge Mason, and presents propositions not raised or discussed at the time of the preparation and filing of my dissenting opinion, I feel it my *545duty to express the reasons and grounds of my dissent from the views stated in the new opinion.

I took the position in my former opinion that the rule of construction which, in case of ambiguity in a deed, requires that the doubt be resolved against the grantor, is only applicable when, after the application of all other rules of construction, a doubt as to the intention of thé parties still remains. This seems to be rather acquiesced in, and yet, for some reason, it is said that this rule has been strengthened, extended, or accentuated by section 2 of chapter 72 of the Code of 1899. It is true that Professor Minor, in the second volume of his work, at page 918, says this statute seems to be designed to carry this rule further than did the common law, But he frankly admits that there is no judicial determination to that effect. It is merely an idea of his own, not emanating from any court. With all due respect to the great learning and ability of Professor Minor, I am bound to express my unwillingness to accept his opinion. I do not feel at liberty to engraft upon the law so important a change upon a mere conclusion Of this kind without any authority to support it, and, worse yet, without any statement of the process of reasoning by which it is reached. Furthermore, the language of Professor Minor has not, in this instance, the accuracy and preciseness which usually characterize his statements. He quotes the statute as if it said “every deed conveying lands shall,” &c. This is not the language of the statute. Its language is “every such deed, conveying lands,” shall etc. It follows section one of chapter 72 which prescribes a simple form of deed to take the place of the cumbersome and verbose instruments by which lands were anciently conveyed. Section 2 then says “Every such deed, conveying lands, shall unless an exception be made, be construed to include all the estate, right, title and interest whatever, both at common law and in equity, of the grantor, in and to such lands.” The purpose of the two sections was to dispense with the common law requirements of a deed essential to the passing of the whole estate, or highest estate that a man could have, or may have, in a tract of land, or any other estate, title, or interest, without describing it. If he had less than a fee simple title, such a deed would pass it. If he had only an easement in it, such *546a deed would pass that interest. The statute simply enables the grantor to pass any interest or estate he may have in a tract of land by executing a deed purporting to convey the whole of the estate. That is its purpose and its only purpose. How could this statute have any application to a deed which does not purport to pass the whole of a tract of land without exception?

By its very terms, it is only applicable when the deed conveys all of a tract without exception or reservation. When it does not purport to convey the whole tract, but reserves a portion of an estate or interest in a tract, or grants only a certain estate or interest in, or portion of, a tract, how could this statute have any application? It is generally in such deeds and contracts only that rules of construction have to be used and this statute has no application to such deeds. If it is claimed that a deed, uncertain in its terms, does pass the grantor’s title, or title to the land claimed under it, said section 2 has no application. It applies to nothing except a deed in form or effect like the deed prescribed in the preceding section. Hence, it is beyond my power to see how it can be deemed to have, in any way, strengthened, extended, or affected the rule of construction in question.

■Upon further investigation, I have reached the conclusion that this rule of construction is wholly inapplicable, under any circumstances, in determining whether a deed or contract granting or reserving coal and mining rights, shall have the effect of authorizing the mine owner to injure the surface, belonging to another person, by destroying its support. In the opinion prepared by Judge Cox, Macswinney on Mines, page 340, is quoted as stating the following to be the principle governing such deeds, deduced from the language of the decisions: “Where it appears, from the express words of such instrument, or by clear intendment therefrom, that it was the intention to exclude the right, effect will be given to such intention.” This is the most liberal rule that can be extracted from the authorities, the most liberal rule stated by Macswinney. It says in effect, in order to deprive the surface owner of the right of support, the deed must do it by express words or by clear in-tendment. If the language must be such as to make the in*547tent clear, what room is there for the application of the rule prescribed for the government of cases of doubt? Mr. Macswinney’s tenth rule given on page 841 says: “Where the right has not been expressly excluded, or where the intention to exclude it is doubtful, the principle formerly mentioned — that the owner of land in its natural state is entitled, 'prima facie, to support, lateral as well as vertical; and that in whichever way the severance is effected, whether by a grant of the land, excepting the mines, or by a grant of the land (whether in fee simple, or for a term of years,) excepting the surface; — is applicable in favor of the contention, that the right has been granted or reserved by implication.” It has been suggested that the doubt referred to in Macswin-ney’s rule 10 is a doubt remaining after the deed has been tested by all the rules of construction, including the rule that an ambiguous deed is to be taken most strongly against the grantor. To this view, I cannot accede, for the reason that this rule is applicable only in cases of doubt. It does not make a doubtful deed plain. After its application, the deed is not plain as construed by the rules of law. It is still a doubtful deed on its face, and the law says, not that it is plain, or shall be deemed to be plain and unambiguous, but that, although doubtful on the question of intent, the thing in question shall pass by it. This law was prescribed for, and is applicable to, instruments, disclosing doubt as to the intent of the parties, not instruments showing plain intent, nor for the purpose of making doubtful instruments plain, but only to make a doubtful instrument pass a right of title, non constat the doubt. Mr. Macswinney does not state this principle in any such sense as is claimed. When does he say “the principle formerly mentioned” shall control? The answer, in his own language, is “Where the right has not been expressly excluded, or where the intention to exclude it is doubtful.” How are we to take this language? Shall we engraft upon it something that the author has not put into it? If so, why? Upon what ground can this be done? It will appear in a subsequent part of this opinion that no decision of the English courts, with a single possible exception, to be noticed, has ever given the benefit of the doubt on the question of intent to the mine owner or lessee. It will be further shown that no decision of the English courts, with *548one possible exception, has ever allowed a deed to take away the right of support from the surface by any implication, except a necessary one. The language in every instance was such that it could not be given force and effect without allowing it to deprive the surface of its support. In at least one case, as shown in my ■ former opinion, words of minor importance, irreconcilable with any other view, were absolutely discarded as being repugnant, and deprived of any effect, because their immediate context was such as to make it plain, upon a view of the whole instrument, that the parties did not intend them to have such effect, or, at least, as to raise a doubt as to what they intended.

I turn now to another proposition, deemed by my associates to be important and controlling in the construction of this deed. I am unable to see how the nature of the tenure to the right of support can have such effect. Harris v. Ryding, 5 M. & W. 59, and Humphreys v. Brogden, 12 Q. B. 739, decided, respectively, in 1839 and 1850, started with' the view that, where the coal is granted and the surface retained, or where the surface is owned by one person and the minerals by another, and nothing further appears, respecting the rights of the parties, the owner of the surface has, by implied reservation, a right of support which the owner of the coal cannot destroy; and where the surface has been granted and the coal retained, and nothing further appears in the dead, the grantor is deemed to have granted the right of support along with the surface, without express words to that effect. In the first instance, it is a reservation in derogation of the grant. In the other, it is a grant in derogation of the reservation, if we treat the right as an easement, resting on the coal. When no title papers appeared showing how the severance had taken place, it was presumed that the estate had been severed into two parts in such manner as to confer the right of support either by grant or reservation as aforesaid. Lord Campbell said, in Humphreys v. Brogden, “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 the minerals without leaving a support for the surface; and *549if 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 enjoyed.” The first proposition says, in effect, in granting the surface, the grantor is presumed to have granted the surface in its natural condition and state, for otherwise he would have made a resevation in derogation of his grant. The second says, in substance, that, when granting the minerals, he cannot be presumed to have parted with the support of the surface, which he reserved to himself, because the surface, without the support, would not be the surface in truth and in fact. It is not strange that Lord Campbell should have stated these propositions in a case in which no deeds were shown, and it did not appear how the severance occurred, for he had before him the earlier case of Harris v. Byding, in which the deed of severance did appear and had been construed. It was a deed granting the coal and reserving the surface. Therefore, it presented the strong case of a reservation to the grantor of a right which stood in the way of his grantee and impaired the value of the thing granted. The court held in Harris v. Ryding that a deed should not be so construed as to take away the right of support, even when it granted the minerals, reserving the surface, in the absence of language conferring, upon the grantee of the minerals, the right to destroy the surface. Such being the true construction of a deed of that kind, the court very consistently said in the later case, showing nothing except ownership of the surface by one person, and of the coal by another, that there could be no presumption that the deed or other instrument by which the severance had been made contained terms which took away the right of subjacent support. Still later,in Rowbotham v. Wilson, 6 E. & B. 593, decided in 1856, Lord Campbell, delivering the opinion, the doctrine laid down in Humphreys v. Brogden was adhered to, but it was found that the deed in that case was such as to take away the right of support. This decision was in the court of Queen’s Bench. The case was appealed and heard in the Exchequer Chamber in 1851, when Lord Campbell’s decision was affirmed. It was here that a different view from that held by Lord Campbell, as to the nature of the tenure of *550the right of support, was suggested. Watson, Baron, said that the provision of that deed by which the surface owner had given away his right of support should be treated and regarded as a covenant not to sue for damage to the surface. He said: “No doubt these words might operate as a grant, if the subject-matter was capable of a grant. But I am -of opinion it could not be the subject-matter of a grant. * * * To be the subject-matter of a grant, it must be an easement to be imposed on the corporeal property of the grantor. * * * The present claim is not anlogous to that of lights; for this, as nothing is to be done on or over ’ the plaintiff’s land, but only in the event of surface injury from works, is a covenant not to sue.” Bramwell, Baron, said: “Now I think it inaccurate to say that the plaintiff is claiming any kind of easement, qualified or otherwise; an easement seeming to me to be something’ additional to the ordinary rights of property. I think the plaintiff is merely claiming the common right not to be injured in his property by the way in which another uses his.” Martin, Baron, after expressing similar views in different form, said: “I think these are the true legal grounds upon which this case rests, and not upon the principle applicable to easements and servitudes; as,' in my opinion, the general right which a man prima, facie has at common law to the support of his land, either subjacent or adjacent, is a natural right analogous to the right of flowing water; and not an easement.” Williams, J., said: “It is, I apprehend, in its nature, one of the ordinary rights of property, and not an easement, which is a right ac-cessorial to those ordinary rights.” Cresswell, J., said: “Howlette had a right to the mines, and to use them as he pleased, provided he did not, by so using them, injure the property of Pears. And that right of Pears to sue for an injury done to his land was a right given to him by the common law, as owner of that land, and not as being entitled to any easement in or over the mines below it. An easement must be an interest in or over the soil; but the owner of the mines might have removed every atom of the minerals without being liable to an action if the soil above had not fallen.” In 1858, Bonomi v. Backhouse, E. B. & E. 622, was decided in the Court of Queen’s Bench, Lord Campbell, *551C. J.. participating. The question in that case was, when the statute of limitations begins to run for an injury done to the surface. In it, Lord Campbell said: “I agree in the opinion that the right of support which the plaintiff claims is a natural right of property, to be presumed till (as in Rowbotham v. Wilson, 8 E. & B. 123, E. C. L. R. vol. 92), evidence is given to rebut the presumption; and that such a right is not to be considered an easement or servitude arising from grant. ” Wightman, Coleridge and Earle, Judges, were all of the same opinion. Rowbotham v. Wilson went to the House of Lords on appeal and was there decided in 1860, Lords Wensleydale and Chelmsford delivering opinions, both of whom expressed themselves as satisfied with the views expressed in Bonomi v. Backhouse, concerning the nature of the right, Hn 1861, Bonomi v. Backhouse was finally disposed of in the House of Lords, where the following was announced as law: “The right of a person to the support of the land immediately around his house is not in the nature of an easement, but is the ordinary right of enjoyment of property.” The injury to the property in that case was the result of the breaking down of the surface over a mine on an adjacent tract of land; but it was agreed that the same principles governed as in the case of a letting down of the surface by mining operations immediately under it. That case did not determine the principle upon which the right of subjacent support is parted with, whether by grant or othrewise. It was not necessary to do so. There was no pretention that it had been lost. The only defense was the statute of limitations.

When writing my former opinion, I did not regard this new view concerning the nature and origin of the right of support as having any important bearing upon the concrete question presented by this record. Upon reflection, however, I have come to the conclusion that, if it has any such effect, it is an element of strength in the conclusion to which I have come rather than of weakness. It says the right of support is part and parcel of the surface, a property right, naturally incident to the surface, recognized by law as belonging to the surface, and never to be regarded, in law, as having been parted with, unless it clearly appears to have been granted away. It no longer stands upon the questiona*552ble presumption of a reservation in a deed in derogation of the grant made by that deed, or as an implied addition to the thing granted. This change elevates it to the impregnable position of a property right belonging to the surface, and going with the surface whenever the surface is granted or reserved. The first theory treated it asan easement, not naturally belonging to the surface, but as rather belonging to the coal, a right of property incident, and belonging, to the coal, and carved out of it and annexed to the surface by the grant or reservation. The new view makes it doubly and unqestionably a part of the surface.

My associates say, in their new opinion, that this ascertainment of the exact nature of the right of support affords more solid ground for the position that it may be parted with otherwise than by an express grant or the equivalent thereof. In other words, that it may be lost or released by mere implication not necessary. As it is not an easement annexed to the surface and operating as a servitude upon the coal, but is a part of the surface, an invasion or disturbance of that right merely gives a right of action, just as any other wrongful act, wherefore, on the principle that a man cannot sue for damages consequent upon the performance of an act to which he has consented, a grant of the right to remove all the coal estops the grantor from recovering damages for the injury resulting to his land. They say that, if it were an easement, annexed to the surface by grant or reservation, there would be more reason for saying it could be parted with only by express words or necessary implication. This view impresses me as confusing the right in question with the remedy for redressing a wrong to that right. If it is an easement annexed to the surface, an obstruction thereof or injury thereto would be remediable by an action for damages. If it is a natural right of property incident to the surface, an injury thereto is remediable in like manner. Permission to inflict the injury by a disturbance of this right would bar an action as effectually in the one case as in the other. If a man consent orally to the mining and hauling away of his coal by another who has not a shadow of title to it, there would 'be no right of action against him as "for a wrong. The taking of the coal would not be a trespass. So, if a man permit any other act to be done to the detriment of his real property, *553no matter by what right he holds, he cannot complain of it as a wrongful act. If such act be clone without permission, it is a mere trespass and does not in any way affect the estate, although the party is liable in damages for the wrong done. These are acts which do not, in any way, affect or destroy the title or estate of the owner. They merely injure and damage the property. They may be done to an easement or other appurtenance of the property as well as to the corpus. But they are only wrongful acts when not done by •consent or permission of the owner. But when the act is done, not as a trespass, admitting title in the owner, nor by his consent and permission, but as a rightful act, and the defense to the action brought for the injury is based upon a claim of title and right of the defendant to do it, then the issue becomes one of title, of right, of estate. A mere permission is revocable at any time and any further injury done after the revocation gives a right of action for damages. The previous permission, which had been revoked, constitutes no bar to it. I imagine that the defendant in this case would be unwilling to say that its rights to remove the support now existing under the surface of the plaintiff’s land depends merely upon the will and pleasure of the plaintiff, and that his revocation of the permission expressed in the deed to do the injury, if it be such, will put an end to its right to effect further damage to the surface. If it be only a valid personal covenant, a breach of it would only give a right of action for damages. Its contention is not that it has inflicted an injury upon the plaintiff’s property by an act to which the plaintiff consented, in consequence of which he cannot bring an action for the resulting damages, but that the plaintiff has no right of support, because he has parted with it by his deed — that the surface is a servient estate to the coal — that the deed imposed a servitude upon the surface in favor of the coal. The contention is that this right, be it easement or natural right, has been bargained, sold and conveyed away by the plaintiff and is no longer his property, in consequence of which he cannot prevent further injury to his surface by revoking his consent.

In Rowbotham v. Wilson, 8 E. & B. 122, Watson, Baron, and Cresswell, Judge, in the court of Exchequer Chamber, took for their position the view thus adopted by the majority *554in the new opinion. They said the clause by which the owner of the surface parted with his right of support operated as a covenant not to sue, nothing more nor less. The surface had passed out of the hands of the man who made that covenant and had come into the hands of the plaintiff; and, as such a covenant does not run with the land, so as to bind subsequent purchasers, they said the plaintiff might recover, notwithstanding the deed of severance had released the right of support. But Barons Bramwell and Martin and Judges Williams and Crowder, constituting the balance of the court, were of a different opinion. They refused to accept this view. They said it operated either as a covenant running with the land and affecting the estate itself, or as a grant of a right in and to the land. When the case went to the House of Lords and was there affirmed, that final decision again repudiated this doctrine of a mere personal covenant and it was held solemnly that it “operated as a grant of a right to disturb the surface of the land.”

The idea of estoppel asserted by the opinion of the majority of the Court, as a principle to be applied in construing deeds, severing the minerals from the surface, in determining whether the right of support has been relinquished, is the proposition upon which Eadon v. Jeffcock, L. R. 7 Exch. 379, seems to partially stand. Whether it is the real basis of the decision may well be doubted, since the court was composed of six judges, three of whom delivered opinions, and only two of these three placed their decisions upon that ground, namely, Barons Martin and Cleasby. It is not the ground upon which Bramwell, Baron, concurred in the decision of the case. He merely commented upon the position of the other two judges and looked upon their argument as plausible. He refused and declined to accept it, because it was, in'his opinion, contrary to every other decision which any English court had ever rendered. He expressly denied that the authorities, relied upon for it by Barons Cleasby and Martin, could be so construed. These cases were Taylor v. Shafto, 8 B. & S. 228, and Shafto v. Johnson, 8 B. & S. 252, and his interpretation of both was that, by the leases, the lessors of the mines had bound the lessees by covenant to do what was inconsistent with leaving support for the surface, and quoted from the opinion of the vice-chancellor to *555prove his statement. Those leases did not merely permit, or authorize, the removal of all the coal, but absolutely bound the lessees, by covenants in the leases, to do so. These covenants raised not a mere implication by probability, not a mere doubtful implication, that the support of the surface might be destroyed, but, on the contrary, a necessary and inevitable one. It must result, else the covenant could not be performed. It must result, else the deed could not have effect according to either its spirit or its terms. His interpretation of these cases corresponds with that of Macswin. ney, who, analyzing Shafto v. Johnson, says: “It was considered, that the leading features of the lease were (1) the intention, in preference to everything else, to provide for the safety of the mine; and (2) the covenant (not by way of privilege to the lessees, but by way of positive obligation upon them, and for the benefit of the lessor) to get all the coal, which could be got with safety to the mine.” Mac-swinney on Mines 323. Having thus put aside the views of his associates, as absolutely devoid of authority for their support, Baron Bramwell found another ground upon which to rest the decision of the court. That was this: The lease bore date 1840 and contained the provisions upon which Barons Martin and Cleasby came to their conclusions. They considered nothing else. From the terms of this lease it was possible to infer that there was an intent that the pillars might be removed. Later, in 1857, the land on which the operations were carried on under the lease was conveyed to persons from whom the plaintiffs took their title, with notice of the provisions of that deed. The deed reserved the bed of mines covered by the lease, together with power to the grantor, his heirs or assigns, to be exercised from and after the expiration of the term, for carrying on the works of the mine and carrying away the fireclay so reserved. It also reserved to the grantor the coal rent under the lease of 1840. It provided for rent for the land used and occupied by the grantor for the purposes of the mine and for compensation for buildings required or removed for that purpose and for surface damage to the land. It further provided specially that the grantor, his heirs or assigns, tenants or lessees, should not be liable for any damage caused to buildmgs which should thereafter be erected on the land conveyed, by *556the sinhvng of the land through mining operations m getting the coal, clay, stone and other minerals hereby excepted and removed. It was upon this that Baron Bramwell based his concurrence in the decision in favor of the defendants. His position is best stated in his own language, which is as follows: “And it was contended by the defendants, that by this conveyance the grantees took without a right to support for houses built over the mines, and without a right to recover damages for injury to houses arising from the surface being let down by mining operations. This undoubtedly is so, if those mining operations were carried on by Roberts, or by his lessees, under leases granted subsequently to the conveyance to the plaintiffs. But it was said by the plaintiffs not to apply to the defendants, who were lessees at the time of the conveyance to the plaintiffs. I think it does. The lease of June, 1840, under which the defendants have the right' to work, is mentioned in the conveyance to the plaintiffs, and the words are general and unqualified: ‘Roberts, his heirs or assigns, tenants or lessees, shall not be responsible for damages caused to dwellings which shall hereafter be erected,’ by mining operations. And it is clear that as the mines and the reversion to the mines were.separated from the rest of the soil, Roberts covenants with the plaintiffs for the performance of the same matters for the benefit of the surface owners that the lessees had covenanted with Sotheron to perform for their benefit. And it is also clear that a power of distress which is given to the plaintiffs, would enable them to distrain on the defendants’ goods. It is asked, why are the defendants to have the benefit of an arrangement to which they are not party or privy? The answer is, that the very foundation of the plaintiffs’ case is a right to support as against the defendants, and if the plaintiffs have taken their estate without that right the defendants incidentally get a benefit perhaps not contemplated.” The case seems never to have been appealed, and what the position of the court of last resort would have been, nobody can say. Nor can it be determined upon which ground the decision rests, for only three of the judges out of six have spoken. As two grounds, barring the right of recovery, were stated, one of which seemed to be clearly sufficient, the plaintiff no doubt considered an appeal useless, and *557so this anomalous and mysterious decision remains. An element which entered largely into that case was a supposed radical distinction between a lease of coal and a conveyance thereof. As a lessor always receives royalty, the working of the mine is partly for his benefit, while the working of a mine which has been sold and conveyed absolutely is not for the benefit of the owner of the surface. It seems to have been supposed by Barons Cleasby and Martin that the mere fact that the instrument governing the rights of the parties was a lease, was sufficient to show intent that the surface might be let down by mining operations under it. This erroneous view was utterly demolished in Davis v. Treharne, 6 App. Cas. 460, decided by the House of Lords. Macswin-ney on Mines, page 297, says: “According to this decision, it does not follow from the mere facts of a lease having been granted and a royalty reserved thereunder, that there is not a right of support. Those facts may be elements to be taken into consideration, in seeing whether or not the right is taken away. But they are not sufficient of themselves to decide that question.” Eadon v. Jeffcock has never been expressly overruled, it is true, but it is undoubtedly the only case of its kind, as regards the proposition, that mere permission to remove all the coal, sufficiently discloses intent to relinquish the right of support of the surface. Moreover, there enters into it the circumstance, that the paper construed was a lease under which the mines were worked on account of the owner of the surface, and not a deed conveying title, in consequence of which benefit from the work inured to the surface owner, the real owner of the mine. In this case, the rights of the parties are fixed by a deed and not a lease. When the works are carried on under a lease, there is some plausible ground for saying the construction should be more liberal to the lessee, because, in one sense, the operations, resulting in injury to the surface, are carried on in part by the owner of the surface himself, for he causes it to be done for his own benefit. He injures his own property for his own benefit. Whatever force there is in this view, and whatever effect it may have had in the decision of Eadon v. Jeff cook, and it is conceded that it had some, and more than it could have under the later decisions, it can have none here. Therefore, I cannot see *558that Eadon v. Jeffcock is any authority for the position taken by the majority of this Court.

Davis v. Treharne, 6 App. Cas. 460, was another case involving the construction of a lease, and foundation for the position of the majority is sought in certain language quoted from the opinion of Lord Blackburn therein. We must consider all his language, and do it in the light of the lease he was discussing. I think his meaning was that the words “letting down the surface” should qualify both sentences “You may take all the minerals.” And “you must take away all the minerals.” The lease did expressly give the right to take away all the .minerals, but it gave no right to let down the surface. It did not say the lessee had the right to mine, excavate and remove all the coal, it is true, but it did demise the veins, mines and seams of coal, ironstone and blackband, with power to the lessee to enter into and upon certain portions of the land and to open, get and carry away the said veins, mines, &c. No words limited the extent to which the lessee could carry them away and the general language used clearly covers all. This is the sense of it, the meaning of it. Moreover, there was a clause in the lease which required the lessee at the end of the term to “compensate the said lessor for any dcmnage or injvrry done to the swrfaee of the said farm cmd lands. ” Not only did it authorize the mining and taking away of all the minerals, but it contained, in addition thereto, an express reference to injury and damage to the surface and provided for compensation. But it did not expressly say, or use any language which necessarily meant that the surface might be let down. It was the absence of this that decided the case in Lord Blackburn’s mind, as is shown by the language quoted from him in the majority opinion. Proceeding, he said: “And when I come to look at the documents, though one is more ready, it being a lease, to believe that the parties meant to say, You shall take all the minerals letting down the surface, than one would have been if it was a sale or a reservation of minerals below to be taken out some future time, I cannot agree with what seems to have been said (I do not know whether that was what was meant) by Baron Cleasby in the case of Eadon v. Jeffcock. I cannot agree that it follows from that that there is not a right of support. I think *559the right of support exists unless it is taken away. I think the fact that it is a lease may be one of the elements to be taken into consideration in seeing whether it is taken away or not, but that is not enough of itself to decide that question. My Lords, looking at these two documents, I cannot find anything that takes away that right of support. It is quite true that where parties have agreed in this way, you shall make compensation for whatever injury you do in respect of these rights, and amongst other things you shall make compensation for what you do in letting down the surface, the conclusion is very strong from that that the lessor says, You may let down the surface. I do not say that it is conclusive, but it is a very strong argument, if you find that clause, to say that he did mean that the lessee might let down the surface. But when you find it said, as it is here,that he shall do certain things underground and a great many things upon the surface, and afterwards make compensation (as it is said in the lease) ‘for all damage occasioned by the exercise of the rights hereby reserved’ or (as it is said in the lease) shall at the end of the lease ‘compensate the lessor for any damage or injury done to the surface of the said farms and lands’ (that means any damage done to the surface of the said farms and lands in the exercise of the rights previously given), and when we find that those rights do include a great many things which will nécessarily damage the surface, the reasonable conclusion is that the meaning is that there is to be compensation for things done in the exercise of those rights. I cannot see that that affords any argument whatever for saying that the lessor intended that the lessee should be able to do something more, and let down-the surface. Yet that is really the whole argument; it stands upon that; that because a clause saying, you shall make compensation for letting down the surface is a strong argument for saying you may let down the surface, therefore a clause saying you shall make compensation for damage done to the surface affords a strong argument for saying that the lessee might let down the surface. I cannot see that. It does not seem to me to be any argument at all. ” In the face of this language, how is it possible to conceive that he meant that a mere grant of permission to take away all the minerals would amount to a relinquishment of support? Why, he admits that the lease *560said more than that. It said all that, and, in addition thereto, that if damage should result, compensation for the injury must be made. But he said even all that stopped short of making the letting down of the surface rightful. Taking all his language together, it is absolutely clear that he meant to say that a permission to take away all the minerals, letting down the surface, or an obligation to take all the minerals, letting down the surface, would amount to a relinquishment of the right of support. He makes it plain that the intent to be looked for and to be ascertained is, not that the coal may be removed or must be removed, but that the surface may be let down. Hence the phrase, “letting down the surface,” must qualify both of the preceding sentences, not merely the latter. This case was decided in 1881, and the general impression is that it wholly repudiates the doctrine propounded by Barons Cleasby and Martin, and, to my mind, it seems impossible that there could be a doubt about this. If anything further were required to make this plain, it would be found in the opinion of Lord Watson, in the same case: “When a proprietor of the surface and the sub-jacent strata grants a lease of the whole or part of his minerals to a tenant, I think it is an implied terna of that contract that support sliall be given in the course of working to the surface of the land. If it is not intended that that right should be reserved, the parties must make it very clea/r upon the face of their contract; in other words, they must express their intention so clearly as to enable a Oov/rt to say that such intention is plain. I think that rule was laid down by the late Lord Justice Mellish in the case of Next v. Gill, and I quite agree with that ruling. It may be done in express terms; but of course it is not necessary that express language must be used; for it may appear by a plain implication from other clauses of the deed, as in the case of Taylor v. Shafto, where an obligation was laid upon the tenant to perform certain acts which were plainly inconsistent with supporting the surface.”

If it be conceded that the lease in Eadon v. Jeffcock, disclosed nothing more, bearing on the intent of the parties, than that it gave permission to remove all the coal, there is nothing in any of the opinions delivered in the case to show or indicate that the liberality of that view stands upon the *561altered opinion as to the nature of the right of support. The distinction between an easement and a right of property is not mentioned or adverted to in any of the opinions. That case, even if it be authority for anything else, affords no ground for saying the right of support may be relinquished by a covenant or a grant less certain in its terms and direct in its effect, than under the early doctrine, because the right of support is a natural right incident to the surface, and not an easement. The English judges did not regard the nature of the right of support as important in construing the instrument of severance with a view of determining whether the right was cut off by it. In Rowbotham v. Wilson, 8 E. & B. 145, Bramwell, Baron, said: “Now I think it inaccurate to say that the plaintiff is claiming any kind of easement, qualified or otherwise; an easement seeming to me to be something additional to the ordinary right of property. I think the plaintiff is merely claiming the common right not to be injured in his property by the way in which another uses his. But I do not think it necessary to determine this; for I think that, whether the defendant is entitled to the mines as a separate tenement, whether the space they occupied belonged to him, or whether he has a grant of the minerals and a license to take them, or whether the right of the surface or general owner to support from the mines below is a natural territorial right or an easement absolute or qualified, or whether the right to sink pits and cause subsidence is a natural incident of a grant of the mines or license to take them, the defendant is entitled to judgment.” Lord Campbell did not think it made any difference. In Bonomi v. Backhouse, E. B. & E. 622, 643, he said: “I agree in the opinion that the right of support which the plaintiffs claim is a natural right of property. * * * But the consequence does not seem to me to follow that the Statute of Limitations cannot begin to run for an injury to such a right till there has been an actual subsidence of the surface. * * * The present appears to me to be am, action for i/njury to a right, a/nd not merely for what is called consequential damaged’

The later decisions of the English court, rendered in view of all that was said in Bonomi v. Backhouse, Rowbotham v. Wilson, Eadon v. Jeffcock and Treharne v. Daris, all say that language, sufficient to relinquish the right of support, *562must amount to a grant of the right to disturb the surface or the equivalent thereof. It must rise to the dignity of a positive grant of a property right in the surface. It must touch in direct language the subject matter of the grant. It is not enough to grant the right to do something with the coal. It is not of the surface. Language touching it only does not reach the subject matter of the grant affecting the surface. The deed must grant part of the surface. How can it do that without any reference to the surface? That it must -amount to a grant or an equivalent assurance is made plain by the later decisions. Bell v. Love, 10 Q. B. D. 547, decided in 1883, arose under an Inclosure Act, as did Rowbotham v. Wilson, and makes it plain that the nature of the .right is unimportant, and also that a provision releasing the •right of support must be a grant or the equivalent thereof. 'This case was decided long after that question was settled, ¡and though it arose under an Inclosure Act, the same principles control as in other cases. In that case, Baggalay, L. J., used this language: “In every case, however, in which the •owner of the minerals claims any rights in respect of getting them in excess of, or other than, the prima facia right of getting them without causing injury to the owner of the surface, the origin and the nature of such rights most be clea/rly defwxed by some gra/ivt or equivalent asswrcmce; in the absence of which the presumption is in favour of the right of the owner of the surface to support. ’ ’ Lindley, L. J., delivering an opinion in the same case, after referring to Rowbotham v. Wilson, Smith v. Darby, Duke of Buccleugh v. Wakefield, Aspden v. Seddon, Gill v. Dickinson, Smith v. Haines, Blackett v. Bradley, and Hext v. Gill, said: “These cases appear to me •to establish two propositions, viz., first, that an Inclosure Act is not to be construed so as to allow the lord of the manor ■to let down the surface of allotments by working mines un•der them unless the language of the Act is clearly and unmistakably to that effect; and, secondly, that the absence of all provision for compensation for injury sustained by letting down the surface tends strongly to indicate that the legislature did not intend by general words to reserve or to confer •upon the lord of the manor the right to work his mines so as to let the surface down.” These views have the high approval of Lord Coleridge, Chief Justice of England, for Bag-*563galay, L. J., in concluding his opinion, says: “I have the authority of Lord Coleridge, C. J., who heard the argument, to say that he agrees in the conclusion at which I have arrived; he agrees also icith the substance of my judgment, and he ihi/nhs it unnecessary to write a judgment of his own.’’’’ By judgment here, he means what we call an opinion. These authorities most effectually do away with the view that the right of support can be parted with otherwise than by a grant or an equivelant assurance, notwithstanding the conclusion that it is a natural right of property and not an easement. The question presented in this case has a double aspect, one of right, the other of remedy. They must not be confused. We must not lose sight of the question of estate by fixing our eyes on that of the remedy for redressing a wrong done to it. In Dixon v. White, 8 App. Cas. 833, decided in 1883, Lord Blackburn said: “Lord Mure is reported as saying in this case, ‘that nothing but the most express terms, ’ would entitle the court to hold that the proprietors of the surface have accepted them under a contract to give up the right of support. I think that is going further than I should like to follow. But I think that the burden is on those who say there is such a contract, to show that there is an intention to that effect appearing on the face of the titles.” In the same case, Lord Watson said. “If A. conveys minerals to B., reserving the property of the surface; or if A. conveys the surface to B., reserving the property of the minerals below it, A. in the one case retains, and B. in the other gets, a right to have the surface supported, unless the contrary shall be expressly provided, or shall appear by plain implication from the terms of the conveyance.” Lord Fitz-Gerald said, in the same case: “If the owner of the minerals, on the other hand, alleges that he has not only the property in the whole minerals, but has also retained all proper means to make that property available, and amongst them a right to get and remove the whole, although in doing so he may ■destroy the surface by removing its necessary supports, then he must show by his title that he had such a right.” The law as stated by Baggalay, L. J., in Bell v. Love, in 1883, was accepted as the settled law of England in 1889, in Consett Water Works Co. v. Ritson, 22 Q. B. D. 318. This was six years later than Dixon v. White and adopted the opinions *564in Bell v. Love and Treharne v. Davis as true expositions of the law. See opinion at page 321. In Greenwell v. Coal Co., 2 Q. B. (1897) 165, Davis v. Treharne was followed as correct law. In none of these late cases is Eadon v. Jeffcock referred to or considered. It seems to have dropped almost wholly out of view. All of them are to the effect that it is a question of title to be established by the mine owner or lessee to an interest in the surface and not a mere question of estoppel. Nor did any of them treat the change of opinion as to the nature of the right as having any bearing, whatever upon the construction of the deed or lease. Its principal effect seems to have related to pleading and evidence. In Dixon v. White, Lord Blackburn said, speaking of the right of support and the right of mining: “Those rights are given (to use a phrase familiar to pleaders of the old school in England, but not to Scotch lawyers) ‘of common right, ’ that is, when it is established that the upper and ' lower strata are in different hands, it is not necessary either in pleading to allege, or in evidence prove, any special oi’igin for those rights, the burden both in pleading and in proof is on those who assert that the rights are different from those existing as of common right.”

Since at no time does it appear that the nature and origin of the right of support was deemed to have any effect upon the question of construction, and the requirement that he who claims the right to deprive the surface of its support must show title in himself as his warrant for such action, such as a grant of the right to let down the surface, or a covenant imposed upon the surface, running with it, binding the land in the hands of subsequent alienees, and operating as a grant of title, it seems to me that all of the early doctrine of the English courts, asserted in Harris v. Ryding and Humphreys v. Brogden, that is material to, or has any bearing upon, the question presented by this record, is firmly adhered to at the present time by the English courts. If the case of Eadon v. Jeffcock may be deemed to have indicated a variance from the line of those early decisions, the loose doctrine propounded by that case has been clearly repudiated and overthrown by the later decisions and is no longer authority for any proposition, except that the fact that the mines are oper-atód under a lease, and not under a deed, is an element to be *565considered in construing the lease for ascertainment of the intent. On that question it mas»- be still cited as authority and properly so. At the present time it can be safely said that there is no impairment of the early English doctrine upon this subject, either in England or any place else. It was at one time threatened in England, but the case which seemed to put it in danger was quickly and effectually condemned in Davis v. Treharne, and since that time, there has been no deviation in the same direction or along any other line variant from the principles of the early cases, as to any subject or proposition that enters into the disposition of this case.

The length of this opinion, the limit upon my time and the breadth of the great field of the law of estoppel, forbid any attempt at an extensive exposition of the principles of that law, in‘an effort to determine whether its application, as made in this case, is consistent with those principles. Eor my part, I am content with the knowledge that no other court has ever professedly rested its decision upon principles of that law in a case of this kind. I feel impelled, however, to say that the application of that principle here places the parties in an anomalous situation. It admits that the right of support belongs to the plaintiff in this case. He has not granted it. He is only precluded from recovering damages for a wrong done to his own property. This is a presumption raised by the Court in order to work out the conclusion to which it has come. It says the plaintiff must have intended this else he would not have consented. There is law for the position that the court cannot indulge in any presumption that a man has consented to an unlawful act. Eor this we need look no further than the great case of Davis v. Treharne, relied upon in the opinion of the majority, and later in date than Eadon v. Jeffcock. The lease provided that the seams and veins of coal should be worked ‘ ‘in the usual and and most approved way in which the same is performed in other works of the like kind in the county of Glamorgan.” By the usual and most approved method of work in that county, the surface was let down. It was contended that the lease showed plain intent by reference to this custom to allow the surface to be let down. In the House of Lords, Lord Chancellor Selborne said in his opinion: “It is impossible *566that those words ‘the usual and most approved way of working in the county of Glamorgan’ can have been intended to absolve the lessee from a legal obligation, collateral to the working of the mine. For this purpose it cannot make any difference, whether the question arises between a lessor who is owner of the surface, and his lessee, or between the lessee and a surface owner who is not lessor. Those words are equally apt, equally effectual, and have the same meaning, in each of those cases. They relate simply to the manner of working the mine for mining purposes; they have no reference to the right of other persons, which there could not possibly be any local custom in such a district as a county to disregard, and which must be respected in carrying on those works; they cannot be understood to have been meant by either of these parties to signify, that the working must be carried on as if there were no such rights of other persons, or of the lessor himself, which the lessee was bound to respect.” Other judges have said the same thing. It was decided in a Pennsylvania case. I cannot take time to hunt them up. The application of this principle makes it necessary to indulge in the further presumption that this immunity from the consequences of an unlawful act is for a valuable consideration. As this case stands upon a demurrer to a declaration, without any averment on the subject of consideration, I am unable to see how the Court can accept as a truth the payment of any consideration. How can we look beyond the declaration? It may be that the deed itself imports a consideration for whatever is granted by it. But to assume that there was a consideration of any certain amount, or for the purpose of determining what the deed grants is an unheard of proposition., The recital of the consideration in a deed is wholly unimportant as regards its amount. In determining what has been granted, we must look to the terms of the deed. It cannot pass titles and rights upon mere presumption. They must pass by the terms of the instrument and the intent disclosed thereby. What the consideration was does not appear from this declaration. The usual and only correct way of construing the granting part of a deed is to look at its terms and the court never concerns itself about the consideration. There can be no presumption from the fact of consideration or the amount of consideration, in *567determining what the language of the granting part of the deed means. How can this Court say what the coal, without the right to let down the surface, was worth, or what the coal, with the right to let down the surface, was worth? We know nothing about that and are not permitted to indulge in any presumptions. When is it that the court may presume that the surface owner has been compensated for the right to destroy the support of his surface? Mr. Macswinney answers, from the authorities, by saying it is when the mine owner is, by the terms of the deed, relieved from liability for damage. Macswinney on Mines 340. He does not say we may look to the consideration expressed in the deed to determine whether the mine owner is relieved from liability. On the other hand, he says the exact reverse of this. When, from the terms of the deed, it appears that the mine owner' is relieved from liability, then it may be assumed that the surface owner was paid for that immunity. The decision in this case reverses the rule and the Court makes an assumption of payment of a consideration in order to strengthen the force and effect of the language upon which the defendant relies as a grant of the right to destroy the subjacent support. In all other courts when the deed, by its terms, gives the right to let down the surface, it is deemed that there has been a grant of a property right to the mine owner, the imposition of a servitude upon the estate of the surface owner for the benefit of the mine owner, and that the effect is to make the action of the mine owner in letting down the surface a rightful, lawful, act, in consequence of which no right of action arises. This decision makes it a wrongful, unlawful act and then bars recovery for the damages by the principle of estoppel. Another thing inconsistent with the principles of law is found in this, that the mere consent or permission operating by way of estoppel is revocable, as has been shown hereinbefore, except under peculiar circumstances, making it inequitable to allow a revocation, as where, on the face of it, large expenditures have been made, or the party has, in some other way, altered his position on the faith of it. But it may be revoked at any time before it is acted upon. Now, we must determine what this deed was at the time it was made. Its character has not been changed by lapse of time. No doubt, considerable time intervened be*568tween the execution of the deed and the beginning of operations under it. If it was a mere consent, a mere permission, and did not pass any estate in the land, then it was revocable and the grantor had it in his power under this deed to defeat the professed object of this clause. It was nothing more than a mere license, even if it rested upon a consideration. Being such, it was revocable, and, if revoked before it was acted upon, not even a court of equity would lend its aid to prevent a revocation of it. Suppose Griffin had revoked this license before the mines were opened. What would then have been the consequence? Amere right in Camden to recover back what he paid for it, if anything. Would any coal owner in this State, or would this defendant be satisfied with such a determination as to the character of the right? It may be that if a man consent to the building of a slaughter house or a factory by his neighbor on a lot adjoining his residence, and thereby induce him to lay out large sums of money in such work, he cannot, after the work is completed, compel him to abate that work as a nuisance. But having consented to it, in writing or otherwise, if, before the act is done, before anj^ money has been laid out on the faith of it, he revoke that promise, or refuse to allow that to be done which he agreed to allow, the only remedy against him, if any, would be a personal action for the consideration. No court would compel him to specifically perform. It would give no right to burden his estate or his property with a servitude. In order to do that, it must rise to the dignity of a grant of a right in the property and amount to more than a mere license, or a covenant not to sue a man for something which he does on his own property. No such agreement can have any such effect. No covenant runs with the land unless it relates to, or is connected with, an interest in the land or estate transferred by the deed. There must be a privity of estate. “A covenant which may run with the land can do so only when there is a subsisting privity of estate between the covenantor and the covenantee, that, when the land itself, or some estate or interest therein, even though less than the entire title, to which the covenant may attach as its vehicle of conveyance, is transferred; if there is no privity of estate between the contracting parties, the assignee will not be bound by, nor have the benefit of, any covenants between the *569the contracting parties, although they may relate to the land he takes by assignment or purchase from one of the parties to the contract. In such a case the covenants are personal and collateral to the land.” 11 Cyc. 1081. If this be a covenant, it is unconnected with any grant of any part of the surface, and would not, for that reason, run with the land. Such a covenant would not amount to a license to do anything upon the covenantor’s land. It would have no relation whatever to his estate in any legal sense, but would be a mere personal covenant which he would be at liberty, at any time, to break and pay the consequent damages. These principles seem to me to be absolutely conclusive of the unsoundness of this theory of estoppel or personal covenant, whichever it may be. Its character is not very clearly defined in the opinion.

To show that the position above taken and the principles enunciated, concerning the nature and effect of a license or mere personal covenant, are correct, the following is quoted from Wood on Nuisances, a work by a celebrated and able author, whose analysis of the cases cited by him is no doubt perfectly accurate. I do this for want of time to set out and analyze all of them in my own language.

Section 360. “When assent has been given to one by another to do an act, the natural and probable consequences of which are to produce a certain result, and the person to whom the assent is given goes on and expends money on the strength of the assent and makes erections of a permanent character, while the consent does not give any interest in the land, and at law is revocable at any time, even though given for a consideration, yet a court of equity will enforce it as an agreement, to give the right, in a case of fraud or great hardship, or will generally enjoin a party from revoking it. But it must be made to appear in such a case, to entitle a party to such relief, that the license has not been exceeded, and that its exercise produces no more injury to the party than might have been reasonably foreseen or apprehended.

In Veghte et al. v. The Raritan Water Power Co., (19 N. J. Eq. 142,) this question was discussed by the court upon an application for an injunction to restrain the defendants from raising and tightening their dam on the Raritan river, by which it was claimed that a larger portion of the water of *570the river would be diverted than formerly. The defendants set up a consent from the plaintiffs, or a part of them, to the diversion of the water, in writing, and the erection of works and the diversion of water under it. The chancellor says: ‘The consent in such case is only a license, at law or in equity. In general, a license at law will create no estate in the hands of the licenser, but will justify or excuse any acts done under it. It is revocable, even when given for a consideration. But in such cases, where the revocation would be a fraud, courts of equity give a remedy, either by restraining the revocation or by construing the license as an agreement to give the right, and compelling specific performance. ’

Section.361. “As to the effect to be given to a license from one to do an act upon his land, at law, the court of New Jersey, in the case of Hetfield v. The Central R. R. Co., (29 N. J. Law, 571) is in point. In that case the charter of the defendants authorized them to enter upon and take the lands required for their road, but directed that they should not enter without the consent of the owner. The defendant entered upon the plaintiff’s lands by his consent, but did not take any conveyance from him in the manner required by law, in order to give them right or title. The court held that this consent did not dispense with the necessity of a deed or conveyance of the land or right in the form required by law. That it was not a consent that was intended to confer a title and was revocable.”

“In Wood v. Ledbitter, (13 M. & W. 838,) the question as to the effect of a license arose in an action of assault and battery. The evidence disclosed that the plaintiff purchased a ticket for the sum of one guinea, which entitled him to admission to the grand stand. That the Earl of Ellington was one of the stewards of the races, and that the tickets were issued by the stewards, but were not signed by Lord Ellington. That under this ticket the plaintiff entered the ground on one of the race days, when the defendant, who was a policeman, under the directions of Lord Ellington, who first ordered him to leave, upon his refusing to do so committed the assault complained of, using no more force than was necessary for that purpose. Upon the trial the judge directed the jury that, assuming the ticket to have been sold to the plaintiff under the sanction of Lord Ellington, it still was *571lawful for Lord Ellington, without returning the guinea, to-order the plaintiff to quit the inclosure, and that after a reasonable time had elapsed, if he failed to leave, then the plaintiff was not on the ground by the leave and license of Lord Ellington, and the defendant would be justified in removing him under his orders, and this ruling was sustained in Exchequer.”

“In Miller v. The Auburn & Syracuse R. R. Co., (6 Hill (N. Y.) 61), which was a case somewhat similar to that of Hetfield v. The Central R. R. Co., before referred to, the defendants erected their railroad with an embankment upon Garden street in Auburn, interrupting the plaintiff’s access, to his premises, in 1839, and maintained it until 1842, when this suit was brought. The defendants offered to prove that the embankment was raised under a parol license from the plaintiff, but the proof was excluded by the court and the case was heard in the Supreme Court upon the question of the admissibility of that evidence. Co wen, J., among other things, said: Tí what the defendants in this case proposed to show was true, viz., that the plaintiff verbally authorized the making of the railway, while the authority remained, their acts were not wrongful. License is defined to be a power or authority. So long as the license was not countermanded, the defendants were acting in the plaintiff’s own right. ’

“In this case the court uphold a license as a defense until it is revoked, and hold that it must be revoked before an action can be brought; but in Veghte v. The Raritan Power Co., ante, the court held that the bringing of the action is a revocation of itself, and all that is necessary. But the former would seem to be the better rule, and the one generally adopted. The following authorities will be found applicable upon the question of the effect of a license.”

Section 862. “The case of Roberts v. Rose, (L. R., 1 Exch. 82,) is a leading case both upon the effect of a license, the right to revoke it, and the rights to abate nuisances affecting their individual rights.”

“In that case it appeared that the plaintiffs were the lessees of a colliery called the Bank colliery, and that in 1861 they obtained from the owner of the fee of the adjoining lands, written permission to make a water course from their colliery to an old pit in what was called the Broadwater colliery. A *572part of the surface of the Broadwater colliery was at that time in possession of a tenant, and the plaintiffs also procured a license from him to build and maintain the water course in question, and the tenant also used the water course for the prosecution of the business of brickmaking. Shortly after the watercourse was built, the plaintiffs were required by the owners of the fee to extend the watercourse over the spoil banks of the old pit, so as to join another water course that had formerly been built to carry away the waters from the Broadwater colliery, and which was discharged into a neighboring canal.”

“The premises over which the water course extended were subject to mortgage, and early in 1861, but after the water course was built, the defendants leased the Broadwater colliery of the mortgagors. The lease was of the coal in or under the land, and leave was given to the defendant to occupy such parts of the lands as might be necessary for the due carrying on of the coal mines, and also to make use of the water courses over the land. The lessors reserved the right to make water courses for certain mines on the land, proper compensation being made to the lessees therefor.”

“The defendant, on entering into possession, assented to. the continuance of the plaintiff’s water course, and certain changes were made therein at the defendant’s request, and the extension thereof was also made as required by the owner of the fee.”

“In 1863 the defendant applied to the plaintiffs for a money payment in consideration of their use of the water course, but the plaintiffs refused to comply with their demand, insisting that, under their license, from the owner of the fee, they were entitled to continue their water course as it was.”

“The defendants thereupon gave them notice that the water course must be discontinued, and the plaintiffs not having discontinued it, the defendant stopped up the water course on the lands of the tenant, from whom the plaintiffs had license, near the boundary of the premises occupied by the plaintiffs. The result of this obstruction was to pen back and throw the water pumped from the plaintiff’s mines back upon the plaintiff’s premises, and by its accumulation there it percolated through the soil into their mines.”

' “The court held that the license to the plaintiffs was revo*573cable, and, having been revoked, deprived them of the right to maintain the water course, but that the defendant was bound to adopt a reasonable mode of abating the nuisance, and so as to do no unnecessary or unreasonable damage, and if the mode adopted by him was unreasonable and unnecessary he would be liable. A verdict was found for the plaintiff, upon the ground that the obstruction of the water was unreasonable and unnecessary at the point where it was made, and upon hearing on exceptions in exchequer, the verdict was sustained. ”

The cases put by way of illustrating the application of this new doctrine are not apt. They are not parallel. They totally ignore the difference in subject matter of the contract. Nobody ever sells all the materials in one story of his house except in view of the wrecking of that house and its conversion into personal property. Coal, in place, is sold all over the world without- any view of disturbance to the surface. Nobody ever sold a chair on which he was sitting with a right to remove it from under him before he got up. No particular chair, nor any particular position, is necessary to the personal support of an individual in his natural state. If he stands, lies down, or sits down, he is natural. The chair has no connection with his person. Besides, it would be an impossibility by any covenant or contract for one person to confer upon another any estate, right or title in his person. Of course, if one person allow another to tear down his house and move it away, he has no right to sue him. But by that act such other person acquires no interest in the estate. If he sell him the houses or any part of them, and authorize removal of them, he thereby severs them from the estate and converts them into personal property. If, when the purchaser comes to take them off, he refuse to allow him to do it, the only remedy would probably be an action for damages. But if he pass title to a part of the land, or give him an easement upon the land to be attached to his adjoining land, then he acquires a part of the estate. It is not a mere personal covenant. But the terms of the deed must be broad enough to take hold of part of the estate, take it out of the covenant- or, and vest it in the covenantee. If this deed is to be operative, it must carve out of the surface owned by the plaintiff a part of it, a right in it, and attach it to the coal for the *574benefit of the owner thereof, and make it a servitude or burden on the superincumbent land. Such sales as are supposed in the illustrations shown in the majority opinions are not sales of property in place. A sale of coal by deed, passing title, is a sale in place. It confers title to real estate, immovable property, not mere personal property. The rules of law, governing the rights in and to the two classes of property are wholly different. Nor are illustrations of agreements allowing a man to do something on his own real property of any force here. Such agreements pass no title. They merely bar the remedy for doing a thing which the actor had no right to do. This right of support is real estate, confessedly and indisputably. Title to it must pass by deed, not by mere estoppel, and a deed does not pass it unless the terms thereof extend to it with the same degree of certainty that is required in other cases.

A comparison of these results of the law of estoppel or mere license with the principles declared, and conclusions expressed, in the later English decisions shows conclusively that those decisions do not rest at all upon that law. Bell v. Love, decided in 1883, after the true nature of the right of support had been ascertained, says the right to disturb or destroy it “must be clearly defined by some grant or equivalent assurance.” , In Dixon v. White, decided in 1883, Lord Blackburn said: “It is established that the titles may shew that the surface is held on the terms that the owner of the minerals is at liberty to remove the whole of them without leaving any support to the surface,” thereby distinctly asserting that it is a question of title. In the same case, Lord FitzGerald said that if the mine owner claims the right “to get and remove the whole, though in doing so he may destroy the surface by removing its necessary support, then he must shew hy his title that he had such right.” It is likewise so declared in the syllabus of that case in these terms: “If the owner of apiece of land sells the surface and reserves the minerals below it, with power to get them, he must, if he intends to have the power of destroying or letting down the surface by subsidence in getting them, frame his power in such language that the Court may be able to say from the titles that such was clearly the intention of the parties.” In Bell v. Earl of Dudley, L. R. 1 Ch. D. 182, decided in 1894, Ohitty, J., said: *575“This inference (of retention of right of support) is strong; in order to rebut it the burden lies on the owner of the minerals to shew affirmatively and by clear words that he has the right of letting down the surface;” and this language is incorporated in the head notes of the case. If Harris v. Ryding and Humphries v. Brogden may be regarded as having been trenched upon by Taylor v. Shafto, Shafto v. Johnson and Echdon v. Jeffcock or by any of these, the later decisions, as just shown, must be taken and treated as having fully restored, to their pristine vigor and force, all the principles of construction of those first two cases, applicable upon the inquiry for the intent as to whether the right of support has been parted with. The altered view as to the nature of that right does not, in any degree, affect this question. As to this, the early English decisions are not, in my opinion, at all discredited, either at home or elsewhere.

Since, to my mind, the certain import of the decisions everywhere is to the effect that the right to destroy the support rests upon a grant, by the owner of the surface to the owner of the coal, of an easement or right in the surface as an appurtenance of the coal and a consequent burden or servitude upon the surface, it becomes necessary, I think, to keep in view the requisites of a deed sufficient to pass such an interest, and to test this deed by the rules governing the subject.

These principles are important, in view of the fact that the clause in this deed, relied upon as connecting or attaching to the coal a servitude upon the surface, contains not a word relating to, or touching, the surface. It adds nothing to the coal. The owner of the coal has a right to remove it, that right is an incident of his estate in it. We must look at this deed and construe it as the conditions were at the time of its execution. Nobody knew exactly what the geological formations were under that land. Nobody knew how the coal laid, its quantity or the nature of the overlying strata. Nobody knew how much coal it would take to support the surface. We may say that it was probable that it would take some, as it does almost everywhere in this State. But for aught that anybody knew to the contrary, the conditions existing in that tract of land might have been such as to enable the owner of the coal to remove every particle of it without letting down the surface. Not a word in the clause purports to grant any *576right to injure or use the surface for any purpose other than those specified. None of these extend to the letting down of the surface. As to the removal of the coal, that was a power to do something not to the surface, but to the coal — not to the plaintiff’s property, but to the defendant’s property. And the thing authorized was what he had the right and power to do, by reason of his ownership of that property. ■ It is not pretended' by anybody that the grant of this power is in and of itself an express grant of any right in the surface. Thus far, the contention for the defendant rests not upon any grant, either express or implied, but upon the principle of estoppel which, in my judgment, absolutely fails to reachthe question of title, and is, therefore, inapplicable to this case.

The alleged intent here to grant an easement out of the surface to be used and enjoyed in .connection with the coal, disclosed by the clause granting the right to mine, excavate and remove all the coal, is a mere conjecture. As it does not stand upon any language which, in any way, includes or touches any part of the surface, its foundation is a mere presumption. No matter what intention the grantor had, if he did not express it in the deed, it is not effective. A deed never carries any interest or estate in land except by words of express grant or words which amount, in legal effect, to a grant. That a deed, in order to carry an estate or interest, must contain operative words of grant, is a rule from which the courts can never depart. Even when aided by a statute, requiring deeds to be liberally construed, this essential element must still appear.

“Section 313. The courts will construe the words used by the parties so as to give effect to the deed, if possible. ‘The judges have been astuti to carry the intent of the parties into execution, and to give the most liberal and benign construction to deeds, ut res magis valeat.’ Upon this principle a feoffment, or a bargain and sale from a parent to a child, to take effect after the death of the parent, may be held to be a covenant to stand seised to the use of the parent for life, because a deed of bargain and sale would be void.

A release to one not in possession, if made for a valuable consideration, will be construed to be a bargain and sale, or a covenant to stand seised, by which the estate might pass. And so a deed of lease and release has been held to be a cove*577nant to stand seised to uses where the consideration was a good one. A deed which cannot take effect as a bargain and sale, for want of a pecuniary consideration, may be given effect as a covenant to stand seised if there is a consideration of blood. In Massachusetts, where a valuable consideration is sufficient to support a covenant to stand seised, a deed of bargain and sale may operate as a covenant to stand seised when it is necessary that it should have that effect in order to carry out the manifest intention of the parties.

“Section 314. A deed without words of conveyance passes no title. In some states it is provided by statute that any instrument in writing signed by the grantor is effectual to transfer the legal title, if such was the intention of the grant- or, to be collected from the entire instrument. But, even under such statutes, some words of conveyance are necessary.. The statute does not wholly dispense with the use of words1operative to convey, but simply imposes upon the courts the duty of construing liberally the words employed as words of transfer. An assignment of a deed, indorsed thereon, does not convey any interest in the landsJ therein described. In equity it might entitle the assignee to a decree for a specific performance, but it cannot operate as a transfer of the legal title.

“Section 315. If an instrument has no words of conveyance, the courts have no right to put them in by interpretation. ‘Courts cannot make contracts for parties. It is not their province to write in an instrument words which will make it operative as a deed, where none of that character have been written by the parties themselves. The rule that courts will so construe an instrument as to make it effective does not mean that courts shall inject into it new and distinct provisions.5

“Section 316. A deed does not bind a person signing it unless it contains words expressive of an intention to convey some estate, title or interest. ‘It has -been said that the signing of a deed manifests the intention of the signer to be bound by it, and that the courts should construe every instrument so as to give effect to the intention of the parties to it. But the intention of the parties to a Avritten contract must be derived from the language of the contract itself; and, where there is nothing in the deed to show an undertaking on the *578part of one of the signers to convey, we do not see very clearly that his signature manifests a purpose to make a conveyance. Where the title is in one person, and the consent of another is essential, under the law, to convey such title, and such other signs the deed, his name not appearing thereon as a grantor, the signature, it would seem, would merely manifest his consent to the conveyance. ’ Merely signing, sealing, and acknowledging an instrument in which another person is grantor is not sufficient.-

‘ ‘Section 317. If from the whole deed the grantor appears to be named as such, and his intention to convey is manifest, the deed is not void, though his name does not appear in its proper place in the granting clause. Thus, where a conveyance is in the form of an indenture between the person who signs it as grantor, of one part, and a person named as grantee, of the other part the omission of the grantor’s name in-the granting clause, when it appears in the covenant of warranty as well as in the m testimonium clause, is not a fatal defect. ■ The receipt of the consideration by a person who signed a deed but did not join in it as a grantor does not operate to give effect to the deed as his conveyance.

“Section 318. A deed by a husband in his own name only, conveying his wife’s land in fee, in which she does not join, though she affixes her signature and seal, is not a conveyance of her estate in fee. Her signature, ‘in token of her relinquishment of all her right in the bargained premises, ’ or ‘in token of her release of dower,’ does not convey her title in fee, nor bar her from asserting her title. That it was her intention to convey her estate in fee is not sufficient unless this intention is expressed in the deed. Such intention will not enable a court of chancery to correct the mistake and decree the execution of a perfect deed. The signing of the deed by the wife at most merely signifies her consent to the conveyance; it does not convey any interest or estate she has in the granted land. Under statutes which provide that a conveyance by a married woman may be made with the written consent of her husband, it is held that this consent is sufficiently manifested by his signing a deed by which his wife conveys her separate property, though he is not named as a party to the deed. The husband has nothing to convey, and his assent to the conveyance by his wife is all that is requir*579ed. The case is very different when the legal interest or estate is in the wife, and she does not join in the deed, or use any words manifesting an intention to convey such interest or estate, but merely signs a deed which purports to be a conveyance by the husband alone.

“Section 319. A wife cannot bar her right of dower by signing and sealing her husband’s deed without any words of conveyance or of release by her of dower. By usage, however, in New Hampshire a wife may bar her dower by signing her husband’s deed without any words of conveyance or release. The words, ‘in token of her free consent,’ used at the conclusion of a deed, do not sufficiently express her intention to bar her right of dower, nor do the words, ‘I agree in the above conveyance. ’ If a wife having an estate in fee executes a deed of it with her husband,- both joining in the ■granting part of the deed, the fact that the wife also releases dower and homestead in the granted premises does not restrict her conveyance to these interests, but the deed passes the title of the wife in fee. ” Jones’ Law of Real Prop, in Convey., sections 313-319.

A deed can never convey a thing to which it makes no reference and does not purport by any language to pass. ' This deed does not grant a right to let down the surface either in express terms or any other language, touching or relating to the surface. The right of support belongs to the surface, no matter how, whether by reservation or ex jure naturae. It cannot be parted with except by cutting it out of the surface. A deed which makes no reference to the surface cannot, by any possibility, take anything out of it. In the clause relied upon here, there is no word which either expressly or impliedly touches the surface. No matter what intention Griffin had with reference to this right of support, if he did not use language which touches it, relates to it, carries it away, the defendant did not obtain it. “Nothing passes by a deed except what is described in it, whatever the intention of the parties may have been. Though parol evidence is often admissible to ascertain what lands are embraced in the description, such evidence cannot make the deed operate upon land not embraced in the descriptive words. A deed described the land conveyed as beginning at a certain rock, and running thence one mile east, one mile north, one mile west, and one *580mile south, to the place of beginning, and. also stated that it was the land set off to a certain Indian under a treaty with the government. The Indian had previously selected his land as ‘a tract one mile square, the exact boundaries of which may be defined when the surveys are made. ’ After the deed was given, the Indian’s land was located and patented so as to include a section not in the form of a square, no part of which lay within the boundaries named in said deed. It was held that deed, being for a specific tract of land, could not be construed to convey the grantor’s interest in the land actually patented to the Indian. That one parcel or some x>ortion of the lands is not described with sufficient certainty does not invalidate the deed as to other parcels that are sufficiently described.” Jones Law of Eeal Prop. Convey., section 325.

Not only must a deed by some language used in it include the thing, title to which is set up under it; but the language must be certain. It is not enough that a man has a piece of land or other property and makes a deed conveying land to another man. Because it appears that he intended to convey something, the courts cannot permit a resort to parol evidence to show what he intended to grant. What he intended to grant must be shown by the language of the instrument, and parol evidence can only be used for the purpose of identifying that which is described in the deed, — applying the description to its subject-matter. Jones’ Law of Real. Prop. Convey., section 323; Mathews v. Jarrett, 20 W. Va. 415 ; Westfall v. Cottrell, 24 W. Va. 763; Dickens v. Burns, 79 N. C. 490; Brown v. Coble, 76 N. C. 39.

The suggestion that a deed, even where there are terms touching property or property rights, claimed under it, will pass title thereto by anything but a necessary implication, where there are no words of express grant, is inconsistent with a rule of law applicable to the construction of all muniments of title. The phrases, “plain implication,” and “necessary implication,” have exactly the same meaning when used in reference to the construction of such instruments. By these is not meant a physical necessity, but a logical necessity. Where a clause is enlarged in its effect beyond the import of the words used, on the theory of an intent established by implication, it must be necessary to so enlarge it in order to give effect to the plain and express *581provisions of other clauses, or the probability of intent must be so strong that the contrary thereof cannot be supposed. In Wilkinson v. Adam, 1 Ves. & B. 422, 466, Lord Eldon said: “ With regard to that expression ‘necessary implica-catión,’ I will repeat what I have before stated from a Note of Lord Hardwicke’s judgment in Cariton v. Hellier; that in construing a Will Conjecture must not be taken for Implication; but necessary Implication means, not natural Necessity, but so strong a probability of Intention that an Intention contrary to that, which is imputed to the Testator, cannot be supposed. ” An intent by implication cannot be engrafted upon the whole instrument because it is barely probable that the grantor intended the words to have such broader meaning and effect. It is well settled that a more liberal rule obtains in the construction of wills than in the construction of deeds. There is never any presumption that a man granted a thing by deed. The presumption is that he did not, unless the language of the deed includes it. Nothing will ever be added to a deed upon the mere presumption that the testator intended to dispose of property; but in the law of wills, there is a presumption that a man who has made a will intended to dispose of his whole estate and not die intestate as to any of it. Another rule is that, when a will contains language relating to children, there is a presumption that the testator did not intend to give his property to strangers in preference to his children. But even in these cases, the lax rule contended for here does not apply. Though a will is aided by this presumption as to the intent of the testator, his whole estate does not pass, nor are his children preferred to strangers in the case of doubtful language, unless the intent to that effect appears by necessary implication. “There may be a legacy given by implication, but to raise such implication it must be necessary to do so in order to carry out a manifest and plain intent of the testator which would fail unless such implication be allowed.” Bartlett v. Patton, 33 W. Va. 72. This rule was applied in the case just mentioned, in the very face of the presumption that the testator did not intend to die intestate as to any part of his property. “Since the courts endeavor to ascertain the intention of testator from his whole will, rather than disjointed parts thereof, and enforce this intention, if lawful, *582when thus ascertained, it follows that it is possible for testator to dispose of property, not by any formal disposition in his will, but by necessary implication from his will taken as a whole. The presumption is very strong, however, against his having intended any devise or bequest which he has not set forth in his will. There must, as has been quoted in recent cases, be a probability arising from the whole will that testator intended to make the bequest or devise, which he has not set forth expressly, so strong, that it cannot be supposed that any other intention existed in the mind of testator.” Page on Wills, section 468; Michael v. Pye, 75 Ga. 189; Reinhardt's Estate, 74 Cal. 365; Eneberg v. Carter, 98 Mo. 647; Barnhard v. Barlow, 50 N. J. Eq. 131; De Silver’s Estate, 142 Pa. St. 74; Sutherland v. Sydnor, 84 Va. 880; Bartlett v. Patton, 33 W. Va. 71, 5 L.R.A. 523; Wilkinson v. Adam, 1 Ves. & B. 445; Boston Safe Deposit & Trust Co. v. Coffin, 152 Mass. 95; 8 L. R. A. 740; Masterson v. Townshend, 123 N. Y. 458; 10 L. R. A. 816; Goodright v. Hoskins, 9 East. 306; Jackson v. Billinger, 18 Johns. 383; In re Springfield (1894), 3 Ch. 603; 64 L. J. Ch. (N. S.) 201; Smith’s Trusts, L. R. 1 Eq, 79; Blake’s Trusts, L. R. 3 Eq. 799.

Another proposition to be remembered is that even in the constructions of wills, liberal as are the rules, a court can never go outside of the language of the will and make it pass something or pass a thing to somebody, on the bare ground of a probability' that the testator intended to do so. The intention must be gathered from the language of the will, and that language must either give the thing expressly or by necessary implication. By the use of the term, “expressly,” it is not meant that it shall be given any particular formula of words; but only that the intent must be shown by express language, which language must reach to, and include, the object of the donation, the person to whom the thing is given, and must also take in by some form of description the thing to be given. Neither of these can be supplied except by necessary implication, and that implication must arise from some intent plainly expressed somewhere in the will, ■ under the rule that in construing a will, all its parts must be considered. When, being so considered, something must be supplied which is not .ex*583pressed in any form, in order to effectuate the general intent, it is necessarily implied. That is the only way a thing not expressed in a will can be added to it, and that addition must be founded upon an express intent in the deed as to other matters in some way connected with the particular matter. Nothing can be added upon any theory of intent not derived from the language of the will, no matter how clear it may appear from something outside of the will that it was intended. “In the interpretation of a will, the true enquiry is, not what the testator meant to express, but what do the words used express. When the language of the testator is plain and his meaning clear, the courts can do nothing but carry out the will of the testator, if it be not inconsistent with some rule of law.” Couch v. Eastham, 29 W. Va. 784.

Such is the strictness of the rule in testamentary alienation by implication. It must be more strict in alienations by deed, because they are unaided by the presumptions as to intent as already stated. If any such rules are at all applicable to deeds, they must be of very limited application. No author, so far as I can see, mentions them among the rules given for the construction of deeds. Every deed, of course, carries with it everything naturally or artificially attached to the property conveyed. This does not stand upon any rule of conveyance by implication. It is an express conveyance, because the things that go with the land are parts of the land. I know of no instance in which a piece of property, not mentioned in the deed in some way, has ever been held to have passed by it, nor in which any person not made a grantee in a deed by some sort of expression, has ever been permitted to take property under it. As the liberal rules above mentioned, as being applicable to wills, do not apply to deeds, nothing can be held under a deed, unless it be conveyed by express words of grant or by some language or provision which is, in legal effect, the equivalent of a grant. Such other language or clause must be equivalent in the sense that it shows express intent, not mere possible or probable .intent, to part with the thing claimed under it. It is not enough that it grants the right to do some other thing. It must show intent to part with the very thing claimed. The grant of a right to a man to *584remove his own coal is very different from the grant to him of a right to let down the surface, belonging to another person, and it does not necessarily mean that the surface shall be let down or may be let down.

Such is the result of proper application of the rules of law, if the words of the clause, “together with the right to enter upon and under said land and to mine, excavate and remove all of said coal,” be given their full force and effect according to their ordinary and plain meaning. If we say the grantor thereby authorized the removal of every pound of coal under the land, it is not enough to carry the right to let down the surface, for the language falls short of granting any right to let it down. But, be this as it may, the very latest English authorities say no mere grant of any powers to work the mines, however broad and ample they may be, will be accepted by the courts as showing intent to part with the right of support. The present state of the law is expressed by Lord Chancellor Halsbury, in New Sharlstan &c. Co. v. Earl of Westmorland, decided by the House of Lords in 1900, reported in L. E. 2 Chy. D. (1904) page 443, as a note to Bishop Auckland &c. Society v. Butterknowle &c. Co., as follows: “My Lords, the state of the law is, now, by the decisions which have been referred to, perfectly clear. The mere fact of giving a right to sink pits and to work or get coal does not of itself establish a right to get rid of the common law right of the surface owner to have his surface undisturbed. That is a plain proposition of law, and when one approaches the question from that point of view it is manifest that in each of the cases that have been referred to the learned judges were talking of the particular instruments they had then to construe, and their problem was to find out whether by the express language of the grant, or by that right which might be construed to be the general effect and intent of the whole instrument, there was a power to interfere with that common law right. I do not think that those principles were so firmly established some ten or twenty years ago as they are now; but that is the proposition of law, and it must be applied to the particular instrument which the Court has to construe in each case. In this instrument, my Lords, I 'confess I am wholly unable to find any such permission to let down the *585■surface. One observation which lies very plainly before one is that there is no express permission to do it, and if the arrangement between the parties was that it was contemplated, it is not, as was pointed out, I think, in Love v. Bell, 9 App. Cas. 286, an immaterial circumstance that it is not mentioned when they are dealing with such a subject, and dealing with it in such a way, as would naturally suggest the question whether that is to be the state of relations between the parties — the lessor and lessee, or the vendor and vendee, as the case may be. The absence of such an express permission is not without its significance. Then we have to deal with the question whether upon the whole instrument we can discover from its language that the parties did contemplate giving the right to let down the surface. My Lords, I can find no such right here; and it appears to me that, applying the principle of Davis v. Treharne, 6 App. Cas. 460, and the long line, of cases which may have now settled the law, it would be reversal of what has been so settled if your lordships were to assume, or from anything that you can find in this deed to imply a right to' let down the surface. It appears to me that the law upon the question must now be regarded as settled, and, there being no express permission, the onus lies on the person who says he has a right to do so, to show something in the instrument which gives him that right.” In Bishop Auckland &c Society v. Butterknowle &c. Co., L. R. Ch. D. (1904) p. 419, 424, Harwell J., said: “Words, however large, applicable to the right of working and privileges connected with it and compensation for the exercise of such right and privileges are not enough, at any rate, if the words used are fairly applicable to the ordinary course of working and nothing more.” In the same case, pp. 435, 436 and 440, Vaughan Williams, L. -I., said: “The keynote of the law which controls the relations of surface owners and mineral owners is as stated by Lord Halsbury in New Sharlston Colleries Co. v. Earl of Westmorland— namely, that ‘the mere fact of giving a right tó sink pits and to work or get coal does not of itself establish a right to get rid of the common law right of the surface owner to have his surface undisturbed. ’ This law does not exclude the obligation of the Court to ascertain the meaning of the par*586ties to a contract, whether such contract is embodied in an Act of Parliament or not, but the ‘letting down’ of the surface by underground working's is so injurious to the user of the surface by the surface owner, that it is not reasonable to construe a contract as giving the mineral owner this right unless the words of the contract make this plain, either by express; words or by implication. The surface owner has by common law a right to have the surface supported by the sub-jacent lands. It is not reasonable to suppose that the surface owner intends to give up a right so important for the ‘user’ of the surface without adequate consideration, and the Gourts do not easily come to the conclusion that it is the intention of a contract to give up this right to support, and therefore, in construing a contract intended to determine the relative rights of the surface owner and the owner of the subjacent land, it is fitting to take into consideration, not only the words of the contract, but the nature of the right which it is sought to say the contract intends that the surface owner shall surrender. In this case there are no express words giving a right to the mineral owner to let down the surface, so it becomes necessary to see if the words of the contract embodied in the Act of Parliament are such as to make it plain that it was the intention of the parties thereto’ that the surface owner should surrender the right of support. * * * * * The case is near the borderline; but I am not prepared to -hold that the terms of the compensation clause are sufficiently plain and unequivocal to make it right that we should hold that there is by necessary implication power given to the mineral owner to let down the surface in a case in which there is no express power, and the general powers construed by themselves would not include such a power. I think the decision of Farwcll J. ought to be affirmed,” In the same case, Homer, L. J., said: “General powers of working conferred by the act of the mine owner, however large, will not be held to take away the right of support if the general powers are not inconsistent with the right. * * * * * And all I need say is, after a careful consideration of the compensation clause in the present case, that the Legislature has not made it clear that it was contemplating compensation for damage arising from letting down the surface. The words: ‘search*587ing for, winning and working the mines and quarries within and under their respective allotments’ are quite general, and I cannot gather from the use of the word ‘working’ (a very general word and of large import), even coupling it expressly with the word ‘under’ the allotments, that the Legislature must have contemplated damage arising from letting down the surface.” It is to be observed that the case just quoted from follows Bishop Auckland &c. Society v. Butterknowle &c. Co.. decided in 1900, which took for its key-note Bell v. Love, 9 App. Case. 286, decided by the House of Lords, in 1884. Lord Chancellor Selborne based his opinion in that case upon Harris v. Ryding, Dugdale v. Robertson, Davis v. Treharne, and Duke of Buccleugh v: Wakefield, passing over, in silence, Radon v. Jeffcock, Taylor v. Shafto and Shafto v. Johnson, as did also Lords Watson and Bramwell. His interpretation of Davis v. Treharne was as follows: “Inthe same case, Davis v. Treharne, two pages later, Lord Blackburn deals with the question which there arose, and on this principle: that when the person on whom the burden of proof lies has to satisfy it, he will not be able to do so merely by showing that there are words, however large, applicable to the right of working, and privileges connected with it, and compensation to be paid for working and for the use of those privileges, which may receive full effect consistently with the right of support. I will not refer in detail to that passage: it is in accordance' with what is to be found in other authorities.” Lord Bram-well said: “If there had been nothing more in the Act, the Dean and Chapter would have had no right to touch the surface to get the minerals. And if all the right the Act gave them was to use such part of the surface as was necessary to get the minerals they would have no right in getting them to let down the surface. In other words, when the ownership of the soil generally and of the minerals is severed, the mineral owner has no rights as against the surface in getting the minerals except what the instrument of severance gives him, and if it gives the right to get the minerals without more, there is no right to let down the surface.” All these late decisions emphasize the proposition that the intent to be ascertained is that the surface may be let down — not that the coal may be removed or that large powers may be exercised *588under ground — and occasionally there is an intimation to the effect that even such intent is not enough, and that ample compensation for that, aside from the consideration recited in the deed, must appear to have been specially provided for. Thus, in Bell v. Love, 9 App. Cas., Lord Watson said: ‘ ‘ The terms of the reservation to the Dean and Chapter of Durham present a marked contrast to the broad and comprehensive terms of the clause with which the House had to deal in Duke of Buccleugh v. Wakefield, a clause which, to use the words of Lord Hatherly conferred the ‘largest imaginable power’ upon the owner of the mines; yet in that case the decision of the House was given in his favor, not because the clause per se enabled him so to work so as to cause subsidence, but in respect that its powers were made subject to the condition that those who worked the mines, should make full compensation for all injury thereby occasioned to the owners of the surface. I concur in the opinion expressed by Mellish L. J. in Hext v. Gill, that ‘no one can read the judgment without coming to the conclusion that, if the provision as to compensation had not been there, the House of Lords, notwithstanding the strength of the other words, would in all probability have come to another conclusion.’”

That the grant of a right to remove all the coal under the land does not authorize letting down the surface was expressly and unequivocally decided and held in Aspden v. Seddon, 10 Chy. App. 397, a case cited in the opinion of the majority of this Court. To show this no more is necessary than a quotation from that part of the opinion of Mellish, L. <T. which decides the case, emphasizing the language that states this conclusion. It reads as follows: “Now, by the deed, all mines and seams of coal, ironstone, and other minerals are reserved to Stott, with full liberty, power, and authority for Stott and his lessees ‘to search for, get, win, take, cart and carry away the same, and sell or convert to his or their own use the said excepted mines, veins and seams of coal, cannel and ironstone and other mines and minerals, or any of them, or any part or parts thereof, at pleasure, and to do all things necessary for effectuating all or any of the aforesaid purposes.’ -These words do certainly appear in very plain terms to g'i/ve power to the mineral owner to o'emove any part of the minerals at *589his pleasure; but, nevertheless, we think that we are bound by the authorities to hold that these words are not by themselves sufficient to take away the surface-owner’s right to support. If the sentence had stopped there, these words would be consistent with the construction that the mineral owner may take away every part of the minerals, provided he cam, do so withoxot violating the surface-owner’s right to support, hut not otherwise., and some further words would he necessary to prove that the intention of the parties was that the mineral owner should he at liberty to take away the whole or any part of the minerals, notwithstanding he might thereby let down the surface or any buildings thereon. Accordingly the re-spondénts rely on the words which immediately follow in the deed as sufficient for this purpose. Those words are, ‘but without entering upon the surface of the said premises, or any part thereof, so that compensation in money be made by him or them for all damage that shall be done to the erections on the said plot by the exercise of any of the said excepted liberties or in consequence thereof. ’ As by the express words of the reservation the mine-owner in working the mines is not to enter upon the plot of land cormeyed by the deed, the damage to the buildings for which compensation is to he given must he damage to the buildings caused by the removal of the minerals reserved, cond therefore it follows that a right to remove all the minerals, notwithstanding thebuild-ings above might be thereby damaged, was one of the liberties reserved by the deed. In substance, the plain meaning of the whole reservation seems to us to be that the mine-owner is to be at liberty to remove the whole or any part of the minerals at his pleasure, paying compensation to the surface-owner for any damage which may be thereby occasioned to the buildings of the surface-owner, which is equivalent to saying that he may remove the whole of the minerals, notwithstanding the buildings may be thereby damaged, subject to a liability to pay compensation. We do not think there is any other clause in the deed which really affects the question.” Test the language of the deed in this case by the opinion in Aspden v. Seddon and reach the conclusion declared by the decision of this Court in this case! It is an utter impossibility. Aspden v. Seddon reiterates in plain terms, the following declaration of Baron Park in Harris v. *590Ryding, the first reported case: “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.”

Strange as it may seem, Aspden v. Seddon is cited by Mr. MacSwinney, 339, for the proposition, quoted in the majority opinion, to the effect that the later English cases construe mining deeds and leases in a manner different from the “curious mode” adopted in the earlier ones. The decision was an absolute necessity arising from the terms of the deed. In no other possible way could they be made effective. The compensation clause could not be referred to surface workings, for none were authorized. Hence, damage to the surface from workings underneath was the only damage that' could result, or be compensated. The rule of presumption against an intention to part with the right of support, asserted in the early cases, was allowed to stand in that case until overcome by the absolute necessity of making it yield in order to give effect to plain terms used in the deed, utterly irreconcilable with any other construction, so far as the court could then see. And, moreover, whether Aspden v. Seddon is good law in England today may well be doubted, in view of the opinion of Lord Davey in New Sharlston &c. Co. v. Earl of Westmorland, decided in 1900, concurred in by Lords Brampton and Robertson, which, in part, reads as follows: “Speaking for myself, I cannot see why a covenant providing a particular measure or mode of obtaining compensation is in any way inconsistent with the existence of an obligation not to let down the surface, even though that covenant extends beyond the surface and is applicable also, or even exclusively, to underground operations. The use of the words ‘by reason of the exercise of the powers’ does not seem to me to carry it any further, because it may apply to any incidental injury done — whether accidentally or wilfully makes no difference — whilst exercising the powers. It does not seem to me to give a license to do the injury, if you say that a person shall pay compensation if he does it. A covenant to pay compensation for doing a thing which you are prohibited from doing is in no way contrary to or inconsistent with the continuance of the obligation not to do it. Indeed, one may go further and say that, if the thing nothwithstanding the prohibition is done, there is no other means by which you *591can obtain a remedy for what is past (an injunction, of course, will not extend to the past) except by provision for-payment of compensation. Therefore, I do not accede to the argument that the existence of a covenant for payment of compensation for letting down the surface is, whether it applies wholly or partially to underground operations or not, in any way inconsistent with the continuance of the common law obligation. ” Lord Davey’s views were approved in Bishop Auckland &c. Society v. Butterknowle &c. Co., decided in 1904, and elaborated upon by Yaughan Williams, L. J., as follows: “Be this how it may, it seems to me that the finding of Lord Esher that the only damage which could be done by the underground working would be by causing a subsidence of the surface does not bind us today, because it is a finding of fact in a particular case arrived at by consideration of the words of a particular instrument which had to be construed in that case, and is not a judgment laying down a canon of construction. I can conceive myself injuries which might be caused by underground working other than ‘letting down the surface. ’ It seems to me that underground working might affect the springs and streams and-wells on the surface, and I am not sure that underground, working might not affect the surface or the buildings on the surface by vibration, without actually letting the surface down.”

MacSwinney on Mines was published in 1884, since which time some very important cases have been decided, and the tendency has been strongly in the direction of the rigidity of the presumption in favor of the retention of support. Mac-Swinney’s first and second rules, quoted by Judge Cox, are mere general conclusions, for which no particular authority is cited by him. The third undertakes to set out specific rules, founded upon authority,-saying:' “Where the mine owner is relieved from liability for damage, the surface owner may often be presumed to have been compensated by anticipation. ” . He deduced this rule from Rowbotham v. Wilson, cited, Richards v. Harper, L. R. 1 Exch. 199, Williams v. Bagnall, 15 W. R. 272, Buchanan v. Andrew, L. R. 2 Sc. & D. 286, and Bensfield &c. Board v. Consett Co.. In the first, the clause of release exonerated from liability “to any action or actions for damage on account of working and getting the said mines, for or by reason that the surface of *592the lands aforesaid mat/ T)e rendered uneven and less commodious tq the occwpiers thereof, iy smldng in hollows or being otherwise defaced and injured where such mines shall be worked.” Moreover, the award, under which the plaintiff took his title, contained the following recital: “The said several proprietors, parties to these presents and interested in the disposal of lands and mines under the circumstances aforesaid, having agreed with .each other and being willing and desirpus to accept their respective allotments in their several situations hereinbefore declared, subject nevertheless to any inconvenience or incumbrance which may arise from the cause aforesaid.” Injury to the surface resulted necessarily from giving effect to these provisions. In no other way could they have had any effect, as the court then believed. There was nothing else to which they could refer, and they extended to, and expressly mentioned, the surface and injury thereto. Nothing was left to presumption. The second case went off on an entirely different point, the deed relied upon never having been recorded and the surface owner having neither actual nor constructive notice of the right claimed by the mine owner. Williams v. Bagnall was like Aspden v. Seddon, except in one particular. There was in it a clause releasing from liability instead of one providing for compensation. The deed allowed nothing to be done on the-surface. Hence, the injury contemplated bjr the release was necessarily injury from underground working — subsidence. It was a case of necessary implication, — of letting down the surface or rejecting part of the deed, — because it could not mean anything else. The nature of Buchancm v. Andrew and the grounds of the decision are best stated in the following language of Lord Chancellor Hatherly, taken from his opinion, delivered in the House of Lords: “Your Lordships will see that this express agreement to exclude claims for damage is not confined to some particular description of damage, but it extends to any damage, the words being ‘and shall not be liable for any damage. ’ Secondly, the feu contract particularly takes notice of the buildings, and of the liability of those buildings to damage through the workings; and it says that the Superior shall not be liable for any damage which may happen to any buildings then upon the property, or after-wards to be there. The importance of that reference to build*593ings will be seen presently, when we come to the latter part of the deed which relates to that particular subject. Thirdly, the feu contract takes notice of the modes of working by which such damage may happen, and puts foremost ‘long wall workings,’ — a remarkable thing; because that was not the mode of working actually in use, or which' ever had been in use there; and it was a mode of working which would completely extract, if it were followed, the whole of the coal without leaving any support whatever, except such limited supports as might arise by rubbish left in the mine, and which, according to the evidence relating to this mine, would have been clearly insufficient to prevent damage by subsidence. I ought further to remark that the feu contract notices two kinds of damage: the one direct damage- by the working of the seams remaining to be worked; and the other-what I may describe as indirect damage by the subsiding of the wastes in the two seams already worked, in consequence-of those excavations. The feu contract deals with the damage arising from the loss of lateral support occasioned by working in the neighborhood, as well as with the damage arising from the loss of support occasioned by workings immediately under the surface in question. Can anything possibly be more clear, than that the intention of the parties on both sides was that the Superior was to have the unrestrained right of taking out the whole and every part of the reserved minerals, the whole risk of any consequent damage being undertaken and to be sustained by the feuar?” The deed provided for “ Long-wall ” working. By that method, all pillars were withdrawn and the surface let down. It released the mine owner from all damage of every kind, occasioned by the workings. This is another clear case of absolute necessity resulting from express terms relating directly to the surface and injury thereto by subsidence. Bensfield &c. Board v. Consett Co. was a case of injury to a public highway, established pursuant to a local Inclosure Act, by which a commons was enclosed and partitioned, and the mine owner released from liability for damages to the surface. The court refused to apply to the public the rules governing the rights of individuals, saying it could not have been intended, that an Act, which appointed a public road, should, *594at the same time, legalize a public nuisance by injuring the roach So the principle of that case has no application here.

It will be observed that MacSwinney does not say a release of liability will always, and of itself, sufficiently evidence intent to part with the right of support. He would not be justified, by the authorities he cites or any others, in intimating that it will ever do so. The cases just analyzed show that the liability for which the release is provided must affirmatively appear to be liability for damages resulting from letting down the surface. Not one of them stops short of the disclosure of such intent by express words or necessary implication. They are no authority for the proposition that a general release from liability for damages, and nothing more, will exonerate the mine owner from the consequence of subsidence, occasioned by him. Some later cases, illustrating the effect of such a clause, not only fail to carry it so far, but show that it stops short of that. In Consett Waterworks Co. v. Ritson, 22 Q. B. D. L. R. 31, decided in 1889, the Inclosure Act under which it arose provided that the lord of the manor should enjoy all mines and minerals as fully and freely as if the act had not passed, without paying damages or making satisfaction for so doing, &c.: and, further provided that the annual rental of 500 acres (out of about 20,000) should be set a part to provide for the compensation to which the allottees of the surface might thereafter be entitled, any deficiency to be made up by means of a rate levied upon the allottees. The Court of Queen’s Bench held the lord answerable for letting down the surface, notwithstanding the provision for compensation; but the decision was reversed by the Court of Appeals. Commenting on the decision of the Court of Appeals in the Consett Case, Vaughan Williams, L. J. said, in 1904, in Bishop Auckland &c. Society v. Butterknowle &c. Co.: “It is argued that this Court is bound by reason of its own earlier decision, on the Consett Case to hold that the necessary effect of a compensation clause, coupled with the words ‘without making or paying any satisfaction for so doing, ’ if it extends to working,under the surface, is to give the mine owner a right to let down the surface. But it seems to me that all that the Court of Appeal were doing in the Consett Oase was to construe those words in that case, and that we are not bound to put the same construction in this *595case if we find matters in the present statutory contract which were not present in the Oonsett Oase going to negative the intention to give the lord a right to let down the surface. Before calling attention to these differences, I would like to call attention to the fact that Lord Esher, at all events, gave his judgment upon the basis that the presence of a compensation clause takes away the fetter put upon the courts as to construing ‘large words, ’ according to their ordinary effect. I do not think that this view is in accordance with the decisions in the House of Lords. It may be that the presence of a ‘compensation clause,5 especially where the compensation is to come from others than those who do the act for which compensation is to be made, is a matter to which considerable weight ought to be given on a question of construction, but I cannot think that there is no fetter on construction left. The presumption in favor of the common law right of support should still prevent the Court from construing ‘large words’ as freely as if no such presumption existed. How the words of the compensation clause in the present Act are as follows: (His Lordship read, the clause, and continued: — ) It appears, therefore, that any person who suffers damage in his allotment by the ‘searching for, winning, and working of the mines and quarries therein, ’ or by the laying or repairing of wagon-ways, and a number of other matters (the damages resulting from which last-mentioned causes would be obviously small), is to complain to one or more justices, who are to inquire into the compensation in a summary way and to finally settle and determine the damages sustained by such person, which damages are to be borne by the occupiers of the several allotments ratably in proportions to be° fixed by the justices, with a liability to -distress in default of payment. It will be observed that the damages from whatever cause are to be paid by the occupiers, not by the owners and proprietors of the allotments, who are mentioned a few lines later, and that the summary inquiry before the justices to finally settle the damages recoverable from the occupiers by distress seem very unsuitable to the fixing of large damages, but suitable rather to the recovery of small damages. Compare s. 48 of the Consett Act. It is true you find the same collocation of damages from various causes, but these damages are to be paid primarily, not by the occupants, but from a fund *596resulting from the rents of lands allotted to justices as trustees for the very purpose bf providing compensation to persons injured by the working of the mines. It is true that there is in s. 49 a provision that if the fund formed by the clear rents and profits is deficient, the deficiency may be recovered from the owners or occupiers of all the several allotments ratably in proportion to value, and may be recovered by distress, but it is provided ‘that every occupier or tenant who shall have paid such damages as aforesaid shall and may deduct and retain out of his or her rent or rents so much money as he or she shall so pay. ’ I am not saying that mere inadequacy of the statutory compensation would justify a limitation of the ‘large words’ of definition of damages, but I think that the consideration of the class of persons on whom the liability to pay the compensation is thrown may make it right to put a narrow meaning on the words defining the damages for which compensation is to be given. With regard to the Gonsett Gase itself, I am not sure that it is consistent with the observations of Lord Davey in New Sharlston Collieries Co. v. Earl of Westmorland, to which I have already called attention. It clearly would not be consistent with those observations but for the differences in the sources from which the compensation is to be paid. It may be, however, that Lord Davey’s observations as to the payment of com-pensatipn, rather importing that the thing the doing of which is to be compensated for is wrong than that it is right, only apply where the compensation is paid by the person doing that act.” In the same case, Romer, L. J. commented on the Gonsett Gase as follows: “But then come the words: ‘And that without making or paying any satisfaction for so doing. ’ And it is with reference to somewhat similar (though not identical) words in the Act considered in Gonsett Waterwoi'lcs Go. v. Ritson that some of the passages in the judgments occur which have occasioned me difficulty in the present case. I am bound to say that I cannot fully follow or appreciate the force of some of the observations in the passages in question. . I cannot myself see why the words in question are not quite consistent with the surface owners having the right of support. The expression without making or paying any satisfaction ‘for so doing’ means to my mind, after I find that ‘so doing’ means doing something not involving the right to *597let down the surface, merely not making- or paying any satisfaction for doing any of the acts authorized or enumerated, and is not dealing with or considering the act óf letting down the surface. At any rate, that is the conclusion I come to in the present case,notwithstanding what was said in the Con-sett Waterworks Go. v. Ritson. That being so, all that remains for me to consider is the compensation clause. Again there are, I admit, some passages in the judgments in the Gonsett Waterworles Co. v. Ritson with reference to the compensation clause there considered which have caused me considerable difficulty, for those judgments are of the Court of Appeal, and would or might bind me if the compensation clause there had been identical with that in the present case. But the two clauses are not identical. I need not enumerate the differences. Some of them have been already referred to by the Lord Justice in his judgment just delivered. And all I need say is, after a careful consideration of the compensation clause in the present case, that the Legislature has not made it clear that it was contemplating compensation for damage arising from letting down the surface. The words: ‘searching for, winning, and working the mines and quarries within and under their respective allotments’ are quite general, and I .cannot gather from the use of the word ‘working’ (a very general word and of large import), even coupling it expressly with the word ‘under’ the allotments, that the Legislature must have contemplated damage arising from letting-down the surface. And this view is fortified by the provision that the persons who have to pay the compensation are only the ‘occupiers’ of the allotments, and moreover occupiers excluding the occupier of the allotment damaged.” These two cases show conclusively that a mere general release is not enough to authorize the letting down of the surface, because it stops short of the expression of any intent to allow the surface to be affected in that way. Another case, illustrating and accentuating this view is Belt v. Earl of Dudley, L. R. 1 Chy. D. 1, decided in 1894. The Inclosure Act under which it arose released from liability and provided for compensation for “great damage” to which the lord of the manor was himself obliged to contribute.

I have quoted enough from the decisions to demonstrate that a compensation clause alone is not sufficient to show in*598tent to relinquish the support, Davis v. Treharne, even though it expressly relate to underground workings, New Sharlston &c. Co. v. Butterknowle &c. Co. Such a clause and a release from liability both failed in the Bishop Auckland Case.

From the foregoing review of the English decisions, the following conclusions are inevitable: First. Neither the principles of estoppel, nor those of mere license, govern in the construction of a lease, deed or statute to determine whether the right of subjacent support is thereby relinquished. A provision in an instrument, to have such effect, must be a grant of a right in the surface or an equivalent assurance. Second. Such provision must, in express terms, in some form, relate to, and permit injury of, the surface by subsidence, occasioned by underground workings. Third. The express grant of a right to remove all the coal,- without an express release of liability for consequent damages, resulting from subsidence, or a provision for compensating for such damages, is not sufficient. Aspden v. Seddon; Williams v. Bagnall; Davis v. Treharne; Harris v. Ryding. Fourth. The, consideration recited in a deed, conveying minerals, will never be presumed to include compensation for loss of the right of support, in the absence of an express release from liability for damages, resulting to the surface from subsidence, occasioned by the working of the mines. Fifth. The right of support passes, not by implication, but only by express grantor an equivalent assurance; but intent to pass it may be disclosed by necessary implication, arising from express language, relating to the surface or right of support. The clause in the deed under consideration here, relied upon as passing the right of support, wholly fails to comply with these conditions and requirements. I think I made it clear in my former opinion that that clause has another purpose and stated what its office is. No attempt to get rid of that exposition of its purpose has been made; and I, therefore, consider it unnecessary to say anything more on that branch of the subject, except that the cases herein reviewed overwhelmingly sustain the proposition that it must be subordinated to the general intent shown by the deed, whenever that can be done. I have plainly demonstrated how it can be done.

But it is said this doctrine leads to an absurdity, for condi*599tions may be such as to require the whole of the coal to ' be left for the support of the surface. In one or two cases I have examined, the court has ventured to say that, if the deed conferred no right to disturb the siirface, and none of the coal could be taken out without letting’ down the surface, then it must all be left; but it is a mere dictum. The cases in which the. statement has been made presented no such question for decision. This hypothesis puts an extreme case, such as is not likely ever to be found in this State, and occurs rarely, if ever, elsewhere. General rules and laws are neither founded upon, nor controlled by,' such exceptional conditions. The law assumes that contracting parties will be governed by reason, common-sense and their knowledge of conditions. If the coal lies under a thin stratum of earth, such as must come down on removal of any of the coal, this condition is apparent, and it is not to be assumed that a man would do the idiotic act of buying the coal without taking, in his deed, an express grant of the right to let down the surface in taking it out. lie is presumed to know the conditions, when apparent, as well as the law. He is bound to know both, and if he puts himself in a helpless condition by his own contract, with knowledge both of the facts and the law, it is beyond the power of any court to extricate him. Hence, the effort to break down the well established law, by the process rednetio ad abmrdum, runs counter to the law itself, and so fails. There is one case, however, which, as applied to china clay, expressly holds that the owner,- not having the right to disturb the surface in obtaining the minerals, was bound to leave every bit of it, for the reason that none of it could be removed without tearing up, and disturbing, the surface. That case is Hext v. Gill, L. R. 7 Chy. App. 699. The Duke of Cornwall had granted the surface, reserving to himself “all mines and minerals within and under the premises with full and free liberty of ingress, egress and regress, to dig and search for, and take, use, and work said excepted mines and minerals.” It was admitted in the case that china clay could not be gotten without totally destroying the surface. A bill, by the owner of the surface to restrain the owner of the minerals from taking china clay, having been dismissed by the Vice-Chancellor on the ground that the reservation included china clay with the power to get *600it, the court of appeals held “that the china clay was included in the reservations, but that the surface-owner -was entitled to an injunction to restrain the owner of the minerals from getting it in such a way as to destroy or seriously injure the surface.” This prevented the mining of any china clay at all Héoste. Gill has been cited with approval as a leading case from the date of the decision, 1872, down to the present time. Moreover, it post dates the decision of Rowbotlumn v. Wilson in which the new view as to the nature of the right of support was settled. That case is cited in the opinion. Another case somewhat similar is Bell v. Wilson, L. R. 1 Chy. App. 303, in which it was held that a deed conveying all mines and minerals, but giving no right to let down or destroy the surface, included freestone, but did not authorize the working of an open quarry on the surface, and that whatever freestone should be taken must be obtained by means of underground quarries without disturbing the surface. Viewed in the light of the nature of their respective subjects-matter and the conditions and circumstances, these two decisions show that the application of this law, in its alleged absurd aspect, operated justly, according to each party what the deed, upon a fair and reasonable construction, gave him and nothing more. In either case, to have allowed the mine owner to do what he had undertaken, would have deprived the other party of practically everything that the deed purported to vest in him. It would have left him with the legal title to a worthless thing, a surface which could not be beneficially used, and that on a bald and obviously false presumption that he had been compensated for conveying away in substance, but not technically, what, by the tenor and effect of the deed, he appeared to hold. Such is the operation of the deed now under consideration under the construction which this Court gives it. Griffin is deprived of the surface as well as the coal, notwithstanding the fact that he took the strongest possible measure for retaining it, by not referring to it in his deed in any way, except by giving certain specific and clearly defined rights and privileges in and upon it. As owner of the whole tract, he undoubtedly had title to the surface. By not, in any way, granting the surface, he felt that he must have'retained it. I think he did. This decision admits that he did, but it nevertheless destroys that surface in his hands *601and entertains and enforces the intolerable presumption that he has been paid for allowing this to be done. Search will be made in vain for any other decision in which such a presumption was allowed, under a deed, lease or legislative act, (and as to all of them the same principles and rules of construction now apply, Bishop Auckland &c. Society v. Butterknowle Co. 1904), which did not contain an express release from liability for damages, and, moreover, for' damages for letting down the surface. The Court had to be able to see plainly that the damages contemplated by the release were that kind of damages. Where the insti;ument did not contain such clause of release, a provision for compensation had to affirmatively appear in the deed. In cases involving leases, the royalties stipulated for were sometimes treated as such provisions.

The decision in this case says the deed grants the right to remove all the coal, and that this grant incidentally carries with it the right to do all things which may be incidental to the exercise of that power, and therefore includes a grant of a right in the surface. I think I have effectually shown that the law does not warrant any such construction. For this purpose, I have adverted to general legal principles. But, on this very point, I have a decision which distinctly and emphatically sustains my position, and decides that the title to land, or an easement in land, does not pass, as an incident to the grant of a right merely to do an act. An Act of George II authorized certain persons to convert an existing brook into a navigable stream, and to maintain such navigation and to make such new cuts and canals as might be required for the purpose, paying compensation by annual rent or a payment in gross to any land owner for user of or damage to his land in carrying on or maintaining the said navigation, and to charge tolls for the user by the public of the said brook, cuts and canals. There was no express power given to purchase lands, and there was no reference to mines or minerals, nor any express provision for their purchase. The brook was converted into a canal. Many years afterwards the owners of the coal under the canal worked so as to cause a subsidence, and the canal owners sought an injunction to •prevent them from injuring or destroying the canal by mining the coál. The court held ‘ ‘that the Act of George II was to be *602read as equivalent to a grant by the owners of la/nd over which the canal passed of a mere right to make and maintain the canal as a waterway, and not to a grant of the su/rface land; and that a grant of such a odght did not carry with it, as a necessary incident, a right of suqoport so as to prevent the landowners from working their adjacent mines.'1'1 It was merely the grant of the use of a stream, a right to do certain acts, stopping short of the use of any express words, giving,, or pui’porting to give, any interest in the land.

. Having thus satisfied myself of the correctness of the position I have taken in this case, I wish slight^ to qualify one proposition asserted in my former opinion. It is there said or intimated that a covenant not to sue, running with the land, might be the equivalent of a grant of a right to disturb the surface. That depends upon its terms. A covenant not to sue for removing the coal or all the coal would not run with the land. A covenant not to sue for damages to the surface by subsidence, resulting from removing coal or working the mine, might be sufficient. Whatever the form, there must be express words in the instrument from which the intent to allow the surface to bo let down can be ascertained. It cannot be put in as a mere presumption, nor can any presumption against the right of support bo indulged. Every reasonable presumption and intendment in its favor must be recognized, if the law is to be applied in accordance with the latest and most authoritative expositions thereof.

In order to show the relevancy of some portions of the foregoing opinion and of my original dissenting opinion, it becomes necessary for me to call attention here to changes that have been made, on the rehearing, in the opinion originally filed by the majority of the Court on the decision of the case.

After the question, “Why should a different rule prevail when a contract is for the sale of mineral below the surface?” found in that part of Judge Mason’s opinion • which was adopted in the opinion of Judge MoWhoRtee, the following language was, on the petition for rehearing, stricken out of the part originally quoted and adopted:

“None are suggested by counsel, except that the courts of England have established a differed rule, and many of the American courts have followed these decisions. While these *603decisions do not have the force of law in this State, ,yet they are of such character as to deserve the careful consideration of the courts. They are persuasive but are not conclusive arguments, especially should it be found that one simply leans on the other.”

After the citation of Noonan v. Pardee, 200 Pa. St., all of the following was eliminated from the part of Judge Mason’s opinion which originally appeared in the opinion of Judge McWhoeteii :

“The learned Judge in delivering the opinion of the court in this case said, ‘Of course the defendant has a right to all the coal under his lot, but he had no right to take any of it if thereby necessarily the surface caved in. The measure of his enjoyment of his right must be determined by the measure of his absolute duty to the owner of the surface.’ This is the English rule broadly and frankly stated, and the one which a large number of American courts have rigidly followed without question.

“So far as I have been able to ascertain the first American case announcing this rule was decided by the Supreme Court of Pennsylvania in 1871. Without giving any substantial reasons for the opinion the learned judge says, ‘The English cases referred to and others which might be referred to emanate from great ability, and from a country in which mining, its consequences and effects are more practical, and the experience greater than in any other country of which we possess any knowledge. We think it safe, therefore, to follow its lead in this matter. ’ Jones v. Wagner, 66 Pa. State 429; 5 American Rep. 385. There are a number of other cases in Pennsylvania decided the same way.

“The same rule has been adopted in Alabama. See Williams v. Gibson, 84 Ala. 228; 5 Am. State Rep. 368, decided in 1887.

‘ ‘In the case of Marvin v. Brewster Iron Mining Company, decided in 1874, and reported in 55 N. Y. 538 and 14 Am. Rep. 322, the supreme court of that state recognized this rule. See also Ryckman v. Gillis, 57 N. Y. 68 and 15 Am. Rep. 464.

“The Supreme Court of Indiana has adopted this rule in the case of Yanders v. Wright, 66 Ind. 319, also 32 Am. Rep. 109, decided in 1879.

*604“The same rule is adopted by the Supreme Court of Illinois. See case of Wilms v. Jess, 94 Ill. 464, and 34 Am. Rep. 242, decided in 1880.

“The supreme court of Iowa has not only approved this rule but has gone d step further and held that when one conveys land to another reserving the right to remove the underlying coal if necessary to support the surface of the soil he must leave the pillars or ribs of coal, although the reservation exempted him from any liability for injury to the surface of the land by reason of the mining operations. See Livingston v. Moingona Coal Company, 49 Iowa 369; also 31 Am. Rep., 150, decided in 1873.

“It must be conceded that plaintiff’s contention is supported by many of. the best American and English courts. But it will be found upon careful examination of the decisions of the American courts that they have been contented with following the dicta of the English courts. The Pennsylvania-courts first adopted the English rule for the reason that the cases ‘emanate from great ability, and from a country in which mining, its consequences and effects are more practical and the experience greater than in any other country of which we possess any knowledge. ’ And hence the court declared ‘we think it safe to follow its lead. ’ This was the first decision of this question in this country and it .is still the leading case, referred to and followed by all the other American courts, and yet no better or other reason is given for it than the court thought it safe to follow the English cases. I refer to Jones v. Wagner, 66 Pa. State 429. So that while we find many American courts following the English decisions we gain nothing from the American cases, and must look to the English cases alone for the principles upon which the decisions rest. ’ ’

On the petition for rehearing, the two paragraphs near the conclusion of Judge McWhorter’s opinion as it now stands, commencing, respectively, “We agree with the conclusion,” and “We in no sense question,” were inserted as additional matter. They did not appear in the opinion, as it was originally delivered.'