dissenting.
As a qualification to the grant of the right of way to defendant, immediately following the granting clause in the form of a proviso, it is stipulated that If the plaintiffs should desire to mine valuable phosphate deposits there*582on, the defendant upon sixty days’ notice in writing should remove its track to adjacent lands, and after the deposits were removed could restore it to its original line. I concur with the majority of the court in regarding this as not constituting a condition subsequent, failure to observe which would work a forfeiture of the land, and in construing it as /containing an agreement in the nature of a covenant that the defendant company should remove its track as therein stipulated.
But I think it involves more than this, and operates as a reservation or exception from the grant to the defendant. Without any stipulation or reservation in the plaintiffs’ deed to the defendant they would have had the right to mine upon the right of way in such manner as hot to interfere with' the defendant’s enjoyment of its easement, but could not so mine as to remove .the subjacent or lateral support to the defendant’s right of way. Bell v. Earl of Dudley, (1895) 1 Ch. Div. 182; Smith v. Darby, L. R. 7 Q. B. Cas. 716; Scranton v. Phillips, 94 Pa. St. 15. Therefore, the proviso was inserted as above set forth. For what purpose? Obviously, that the right to mine should be freed from this restriction; and to make the enjoyment of the right complete, the company was required to remove its track from the land.
The construction placed upon this provision of the. deed by the majority of the court makes it in effect one that the plaintiffs may so mine as to interfere with the surface support of the right of way if the railroad company upon receiving notice to remove its track shall thereafter by moving it evidence its consent that the enjoyment of its easement may be so impaired, but that if it refused so to consent, the right of the plaintiffs to interfere with anyr part of the surface or support of the right of way is *583lost. But the. right of the plaintiffs was fixed by their deed to the defendant, and the defendant by accepting it consented then to this qualification of its right of easement, and its later consent is not essential to fix the plaintiffs’ mining right. It was the intention of the plaintiffs to retain their right to mine the whole right of ■way, and this intention is evidenced as above stated by a proviso to the granting clause of their deed to defendant, and should be construed as excepting or reserving this right from the grant. A grantor of an easement may qualify it as he sees fit. (Ex Parte Miller, 2 Hill, 418); and that which is necessarily implied from language used is as much a part of the contract as if it were expressed. Hudson Canal Company v. Pennsylvania Coal Company, 8 Wall. 276, text 288; United States v. Babbit, 1 Black. 55, text 61.
In England, under the “English Clauses Consolidation Act,” where a railroad company makes no compensation to the mine owner after notice of his intention to mine adjacent to or underneath the track, the mining may proceed even if it have the effect of letting down -the railroa i track; Ruabon Brick and Terra Cotta Company v. Great Western Railway Company, (1893) 1 Ch. Div. 427, and cases cited; 18 Am. & Eng. Ency. of Law (2nd Ed.), 558.
Whether a public policy exists which in the absence of statute would preclude the enforcement of the right to mine where it would entail such consequences to a railroad in the operation of which the public has an interest, as is held to be the case in Mine Hill and Schuylkill Haven Railroad Co. v. Lippincott, 86 Pa. St. 468, it is not necessary now to enquire. The evidence shows that a large part of the phosphate on the defendant’s right of *584way could have been mined without interfering in any way with the road bed of the defendant, and I do not con-, ceive that such public policy would prevent the mining of this portion of the land.
If we assume, then, that such policy does exist and that it would apply to and prevent the mining of that part of the soil which was necessary for the support of the defendant’s track, it would not prevent the'mining of the rest of the phosphate on the right of way. This portion of the rock was entirely accessible to the plaintiffs, notwithstanding the defendant’s failure to move its track, and they shopld not recover damages for their failure to take it. The testimony upon which the judgment in this case was based was as to the value of the whole of the phosphate on the right way, and furnishes no basis from which to determine'the quantity which could not be mined because of the maintenance of the railroad in its former position. The evidence, therefore, fails to support the verdict or to furnish a predicate for reaching a proper verdict.
Entertaining these views, I dissented from the former decision of the court, and now think the rehearing should be granted.