dissenting:
I am of the opinion that the propositions of law set out in the syllabus are correctly stated, but of the further opinion that Points 2, 3 and 4 thereof have no application to the facts of this case. I presume that the majority will concede this if the contract between Shawvers and Leckie, dated February 6, 1940, is, in effect, something more than a “bare license”. It seems clear to me that the instrument is a mining lease. It is not so important, *609of course, what technical terminology we apply to the instrument, for all agree that, in this State, we determine the intent and effect of an instrument by viewing it from its “four corners”, and enforce it according to the intent of the parties, unless to do so would violate some positive rule of law. Marmet v. Watson, 106 W. Va. 429, 145 S. E. 744. To assist in making my position clear, I quote that part of the instrument not set out in the majority opinion:
“The party of the first part agrees to either install a scale which will accurately weigh all coal so mined or, instead of a scale, to so construct his tipple or bins that all coal may be accurately measured and further that he will consult with the engineers of the party of the second part as to the proper construction of said arrangement for measuring the coal and that he will report, not oftener than once each month as required by the party of the second part, all coal mined under this agreement and make payment for same at the office of the party of the second part at Anjean, West Virginia.
“In Testimony Whereof witness the following signatures and seals this the day and year as first above written.”
Stripped of its formal parts, the contract simply “granted and leased, for the price and on the terms hereinafter set out, the privilege of mining and marketing”, Ml of the outcrop coal remainifig in the Sewell Seam, under the Shawver tract after Leckie had completed its own deep mining operations of the coal in that seam, under that tract. In consideration of this grant and the sum of $500.00 cash, Shawvers released Leckie from- all liability as to any “damage claims of any kind for damage to the surface, growing crops, buildings or damage claimed due to the loss of springs, wells, or any source of water supply or any other damage that might be claimed as caused by the mining operations” of Leckie. Also, the instrument required Shawvers to pay unto Leckie a royalty of ten cents per ton for coal mined. *610True, the instrument contained an agreement on the part of Shawvers not to mine any coal except in “locations” selected by Leckie, but this agreement did not reduce the substance of the grant; it merely limited operations thereunder. Leckie could not arbitrarily, without reason therefor, refuse to make such locations when it had completed its deep mining operations under such locations, or if and when it had abandoned areas of the outcrop coal. There is no indication in any part of the instrument that the grant or lease was made upon any condition. Moreover, the agreement on the part of Shawvers not to mine except at “locations” selected by Leckie was made for, and expressly limited to, the specific “purpose of protecting the mines of the party of the second part against any possible damage by water, squeezes or damage to” the ventilating system of Leckie. No such damage could possibly have been caused Leckie by Shawvers’ operations of areas completely deep mined and abandoned. It may be noted that the plain wording of the quoted provisions of the instrument discloses a clear intent that Shawvers were to be permitted to mine the outcrop coal at locations upon the tract before Leckie had completed its déep mining operations as to the entire tract. As will be shown later, this is exactly the way the parties interpreted the contract, and the way they operated thereunder for a number of years, Shawvers mining coal, and Leckie demanding and accepting royalties therefor. Marmet v. Watson, 106 W. Va. 429, 145 S. E. 744; Coal Co. v. Pocahontas Corporation, 109 W. Va. 39, 152 S. E. 785.
Authority of Leckie to terminate the lease and operations of Shawvers, as indicated by the majority, was not the right or privilege to terminate all operations of Shawvers, but only, “to stop any work of the party of the first part that may endanger any of its (Leckie’s) mine workings.” Nowhere in the instrument is there any provision to the effect, as would seem to be indicated by the majority opinion, that Shawvers “could not mine coal when forbidden to do so by Leckie” after locations for operations by Shawvers had been made and agreed *611to by Leckie. If any doubt exists as to whether Shaw-vers had any interest in the outcrop coal before Leckie had made any such location, that doubt would certainly, in my opinion, be dissolved after a location had been made and agreed upon by Leckie. See Williams v. McCarty, 82 W. Va. 158, 95 S. E. 638, 100 S. E. 565, 15 A. L. R. 9; Hosford v. Metcalf, 113 Iowa 240, 84 N. W. 1054.
In view of the plain provisions of the instrument, even had there been no practical construction thereof by the parties and no partial performance in accordance with such construction, I am unable to conceive how the majority arrives at the view that “The usual and necessary provisions of exclusiveness, definite time of existence, and the granting of a right or estate in the coal being absent in the contract, the conclusion is inevitable that the contract created no lease between Leckie and the Shawvers.” The grant was the privilege to mine all the outcrop coal not mined by Leckie, not merely part of it, on the Shaw-ver tract of 264 acres, fully described. How could the right to mine all the outcrop coal be more exact or exclusive? Certainly if Shawvers were to mine all, then no other person could mine part. This implies, at the least, reasonable time to mine all such coal after locations had been made by Leckie. Otherwise title to the coal vested in Shawvers. If title to the coal actually vested in Shaw-vers, as appears to be held by our cases, no time limit was necessary. Keystone Company v. Brooks, 65 W. Va. 512, 64 S. E. 614; Williams v. McCarty, 82 W. Va. 158, 95 S. E. 638, 100 S. E. 565, 15 A. L. R. 9. In the Keystone case this Court held: “In case of a deed conveying legal title to timber, though the deed contemplates removal of timber, there being no limit of time for removal and no clause- of forfeiture for failure to remove, title to the timber is not lost to" the purchaser for such failure.” In the opinion it is made clear that the rule would apply as well to coal.
As before pointed out, the instrument expressly “granted and leased” the “privilege” to mine all of the outcrop coal leased by Leckie, yet the majority holds *612that “no right or estate” was granted. “A lease of land for the purpose of mining coal, or extracting oil or natural gas from the soil, or rock, is, in effect, a grant of a part of the corpus of the land.” Part Point 1, syllabus, Haskell v. Sutton, 53 W. Va. 206, 44 S. E. 533. See Preston v. White, 57 W. Va. 278, 50 S. E. 236; Williamson v. Jones, 39 W. Va. 231, 19 S. E. 436, 25 L. R. A. 222. Even a grant of “royalties” is a grant of an interest in the land. Paxton v. Benedum-Trees Oil Co., 80 W. Va. 187, 94 S. E. 472. “Instruments by which estates or interests in minerals are created are frequently and without distinction called ‘mining leases’. In determining whether the agreement as to the minerals is a lease or constitutes some other relationship, the intention of the parties is controlling.” 58 C. J. S., Mines and Minerals, Section 165. I can not believe that the parties intended that Shawvers “release the said Leckie Smokeless Coal Company, party of the second part, from the payment of any damage claims of any kind for damage to the surface, growing crops, buildings or damage claimed due to the loss of springs, wells, ór any source of water supply or any other damage that might be claimed as caused by the mining operations” of Leckie, for a “bare license”, not assignable, and revocable at any time at the pleasure of Leckie, plus the five hundred dollars paid by Leckie. The instrument in the instant case has all the necessary elements of a valid contract. “A bare license is not a contract. However, a license may become an agreement for a valuable consideration, as where the enjoyment of it must necessarily be preceded by the expenditure of money; and where a license constitutes, in effect, a contract, the rights and obligations of the parties under such license agreement depend on the provisions thereof.” 53 C. J. S., Licenses, Section 84. A valuable consideration was paid by Leckie for the release from liability, the five hundred dollars cash and the right to mine all outcrop coal, and Leckie was to receive a royalty of ten cents per ton for the outcrop coal mined. Nothing further was required to constitute the instrument a valid mining lease.
*613Conceding, for argument, that no title to the coal in place vested in Shawvers, and that the instrument constituted only a license, it is my opinion that the same can be no less than a license coupled with an interest. There was “granted and leased” to Shawvers the “privilege” of mining the outcrop coal, which, I believe, clearly vested in Shawvers such a “right”, as that word is used in the majority opinion, as would enable Shawvers to mine such coal. In Lumber Co. v. Fuel Company, 88 W. Va. 61, 69, 106 S. E. 41, the Court stated: “* * * It is quite true that a mere license ordinarily may be revoked, and the licensee deprived of any right to act thereunder, but this rule is not without its limitations. Where the license is coupled with an interest granted upon a valid consideration, such license may not be revoked, but will confer upon the licensee the power to exercise the rights conferred so long as the interest to which the license is incident continues. * * (Numerous authorities cited). See Funk v. Haldeman, 53 Pa. 229; Holt v. City of Montgomery, 212 Ala. 235, 102 So. 49; Rentfro v. Dettwiler, 95 Mont. 391, 26 P. 2d 992; Durell v. Freese, 151 Okla. 150, 3 P. 2d 175; Gibbs v. Anderson, 288 Ky. 488, 156 S. W. 2d 876.
Even if the contract is only a bare license, as held by the majority, a jury should be allowed to determine: (1) Whether Shawvers, or those claiming under them, have made expenditures in the exercise of such license; and (2) whether‘ Leckie, subsequent to the making of the instrument, abandoned or completed its deep mining operations on any area of the Shawver tract, and pointed out such area to Shawvers as a location where Shawvers could mine the outcrop coal. In this connection, it should be borne in mind that Shawvers owned the surface of the 264 acre tract.
The general rule seems to be that where a licensee under a bare license to mine coal makes expenditures in connection therewith, and in reliance thereon, the li-censor will not be permitted to revoke the license. In some jurisdictions the rule is applied even where there *614is no written agreement. “The rule that a parol license is revocable has some exceptions. If the enjoyment of it must be preceded necessarily by the expenditure of money, and the grantee has made improvements or invested capital in consequence of it, it becomes an agreement for a valuable consideration, and he is a purchaser for value. In such cases, equity holds that, for remedial purposes, the license shall be deemed an executed contract. And if revocation would work a fraud upon the licensee, equity will restrain such revocation, although its continuation results in an easement upon the lands of the licensor in favor of the lands of the licensee.” 12 M. J., License to Real Property, Section 6. See Pifer v. Brown, 43 W. Va. 412, 27 S. E. 399, 49 L. R. A. 497; Tufts v. Copen, 37 W. Va. 623, 16 S. E. 793; Coal Co. v. Kennedy Coal Corporation, 134 Va. 1, 114 S. E. 233; Kennedy v. Combined Metals Reduction Co., 87 Utah 532, 51 P. 2d 1064; Durell v. Freese, 151 Okla. 150, 3 P. 2d 175.
As I understand, the majority concedes that if Leckie abandoned any area of the Shawver tract after haying completed its deep mining operations under such area, and pointed out the same to Shawvers as a location from which Shawvers could operate pursuant to the contract, Leckie could not thereafter reclaim the outcrop coal within that area, or deny Shawvers the right to mine the same. The following statement from the majority opinion would, I believe, settle that question: “We think that if Leckie had abandoned the coal at any time after its contract with Shawver such action would have been sufficient to satisfy the terms of the contract in that particular.” Evidence relating to these propositions was submitted to the jury, and the jury returned a verdict in favor of plaintiffs. In my opinion the evidence fully justified the verdict.
W. L. Kelly testified to the effect that, as early as 1943, he and his brother, G. R. Kelly, were, together with Jennings Shawver, son of the lessees,, mining outcrop coal under the Shawver lease, at locations pointed out or agreed to by Leckie, and that they paid, and Leckie re*615ceived, ten cents per ton for the coal so mined; that Kellys obtained an assignment of Shawvers’ interest in the lease in 1944,. and soon thereafter requested Coleman, chief engineer of Leckie, to make an additional location for Kellys; that Coleman took a map from the wall in his office and “marked off where I could mine and he gave me this map”; that Coleman indicated on the map with “a red pencil. This drain way — he gave me rights, he told me to mine around there. He had pulled out. There are dates on the pillars to show what year they pulled out”; that “They (meaning Leckie) done pulled out of this whole region”; and that the Kellys claimed only the right to mine the area pointed out to them by Coleman. This witness was asked the following question, and made the following answer: “Q. Did you make any openings on that land? A. Back over in. there I opened here on this reserved acre of thé Shawvers and Leckie drove in here. I mined here. They drove on the reserved acre according to the map which they had and I drove through this reserved acre. On this Leckie coal here I paid ten cents on the ton. Mr. Coleman came and checked me here so I would be sure to pay ten cents a ton when I hit on him here. And I showed him and paid ten cents a ton and he said that was just as good as a survey.” He also testified that Gentry, president of defendant, Rain-elle Coal Company, claiming under Leckie, offered Kellys $3,000.00 for their rights in the coal within the area claimed by Kellys and that the Rainelle Coal Company strip mined that area. G. R. Kelly testified that Dollinger, superintendent of Leckie, stated: “ ‘Kelly, you open anywhere on the Shawver tract. We are out of there.’ He said he would like for myself and Jennings Shawver to get together and strip it. He said Leckie would realize more royalty that way”; that Coleman, Leckie’s chief engineer, came to the Kelly operations on the Shawver tract “to see whether we was due to pay them royalties or not”; that the Kellys opened a mine “in a wooded area” on the Shawver tract, and that Gentry, president of defendant Rainelle Coal Company, offered Kellys *616$3,000.00 for their interest in the Shawver lease. A survey of the premises under which the Kellys claimed the right to mine the outcrop coal was made by Patterson about September, 1948, who stated that there were no indications that Leckie was operating on the Shawver tract at that time.
W. W. Coleman, chief engineer of Leckie, recognized the map referred to by W. L. Kelly as a Leckie map, and stated that the map was probably made under his direction and supervision, and that the shaded areas on the map indicated that the coal had been removed from such areas. This witness was asked the following question, and answered as follows: “Q. You know where the Kellys operated? A. I understood the Kellys operated within the one acre reserve here. Mr. Shawver, himself, had a mine some seven or eight hundred feet south of the one acre reserve.” With reference to the area where Kellys operated, he was asked the following question, to which he answered: “Q. Have all these pillars been pulled out in that section.? A. Yes, sir.” This witness said that “I certainly don’t remember giving them (Kellys) permission to work”; but when asked: “You don’t remember refusing them a place?”, answered: “No, I don’t.” John Marble, mine foreman for Leckie, testified as to the area of outcrop coal involved as follows: “Q. When was that area of the mine abandoned? The witness: In here? Mr. Haynes (examining counsel): Yes. A. Totally abandoned back to here”; and referring to when the pillars were pulled - in the area, the witness testified: “Q. The last you recall in here was in 1941? A. That’s correct.” T. F. Dollinger, mine superintendent of Leckie, admitted that “practically all” of the pillars in the section of the Shawver tract claimed by Kellys had been pulled.
Thus we see that every witness who testified as to the controlling facts corroborated the witnesses of Kellys to some extent. There is no question, in my opinion, that Leckie had completed its deep mining operations as to *617the area involved and had abandoned the same; that the Kellys and Jennings Shawver, acting under the Shawver lease, had mined outcrop coal for several years at locations agreed upon, recognized and approved by Leckie; that Kellys had paid, and Leckie received, ten cents per ton for the outcrop coal so mined; and that Shawver and Kellys had made expenditures in the opening and operation of their mines. Gentry admits the offer of $3,000.00 to Kellys for their interest, and does not deny the stater ment made by him, as testified to by W. L. Kelly, that “he would strip if it cost him $25,000.00.” It may be significant to note that Leckie would have' received ten cents per ton royalty for coal mined by Shawvers, but received thirty cents per ton for coal mined by the defendant Rainelle Coal Company.
This evidence, in my view, establishes abandonment by Leckie of the area of outcrop coal claimed by Shaw-vers, as well as the practical construction placed upon the Shawver-Leckie agreement by the parties, and the actions of the parties pursuant to that construction. It also demonstrates the inequitable results reached by the majority in construing the instrument as a bare license. Leckie appears to have been released from all liability as to any damage to the surface of the 264 acre tract, but Shawvers, and Kellys claiming under them, have lost all mining rights created by the instrument.
Being of the opinion that the Court, in an unwarranted exercise of its power, has destroyed rights created by the instrument .under consideration, and has invaded the province of the jury, I respectfully dissent.