(dissenting) :
I cannot concur. If Griffin v. Coal Co., 59 W. Va. 480, is the law of this State as to subjacent support, the opinion in this case is bad as to lateral support, and as involving rights of adjoining owners of coal under section 7, chapter 79, serial section 3920, Code 1913. This case is stronger for defendant than one involving subjacent support as in the Griffin ease, for here the parties actually sat down and figured up in pounds all the coal under every inch of .the land, at the rate of ten cents per ton, and the amount so ascertained was actually paid for the coal and mining privileges granted. What did they mean by doing this ? The opinion says this was simply a method of getting at the value of the land. How *300would this aid in getting at the value of the thing granted, if the grantee was not to get the coal figured into the estimate? Ten cents per ton is a very large royalty for coal and mining rights. If instead of a deed for the coal in place the grant had been a lease to take out the coal, the lessee would not have been required to pay for coal which he was not permitted to mine.
The opinion says if the deed had simply conveyed the land by metes and bounds it would have carried title to all the coal to the limits of the boundary, which is very true; why then did it not stop with these words ? It did' not do so, but to make sure that the grantee was given all it bought and paid for by the ton, it says, most pertinently: “With the coal hereby conveyed, there is also granted and conveyed unto the said party of the second part all the usual mining privileges”, for what, to remove all the coal granted? The words are stronger than that. It says, “for the removal of same and every part thereof from under and in said parcel of land, such as are vested in the said parties of the first part.” The record shows that the grantors at the'time they made this deed and at the date of this suit owned the adjoining lands, and certainly when they made that deed they had the vested right to remove every pound of coal in and under the land covered by their deed. If they had said in their deed “with right to mine the coal up to the division line”, or we hereby give our consent thereto, the terms would have been more nearly in the language of the statute, but would not more clearly have expressed their intention, and the intent of the parties is the polar star for construction.
I express my doubt also- as to the correctness of the second point of the syllabus. It seems to me this construction of the statute makes every stroke of the pick along the line of the neutral zone a separate and distinct offence. Certainly it does, if a pound of coal is removed at the different points of invasion. I doubt if the legislature intended this.
I would affirm the judgment, because in my opinion it is clearly right.