Coleman v. Chadwick

delivered the opinion of the court,

*87We have held in the case of Horner v. Watson, 29 P. F. Smith 251, decided at the present term, approving Jones v. Wagner, 10 Id. 429, that of natural right the surface land is entitled to support from the strata below, and that, when one owning the whole fee, grants the minerals, reserving the surface to himself, his grantee is entitled only to so much of the minerals as he can get without injury to the superincumbent soil, and that the plea of a custom to the contrary could not be entertained, because such a custom would be unreasonable, and hence wanting in an element essential to its validity. To the opinion in that case we refer for the reasoning intended to sustain that conclusion. It is admitted, however, that, as a man may do what he pleases with his own, he may, by grant, part with the right of surface support, and, it is contended, that such is the purport of the deed of Thomas Chadwick and wife to Coleman, Hailman & Co. That part of the aforesaid deed, which is supposed to release such right, reads thus: “And all the privileges necessary for the convenient working, running and transportation of said coal, and deposition of excavated matter, and also all rights and privileges incident or usually appertenant to the working and using of coal mines.” But we cannot perceive that this grant in any way compromises the grantor’s right of surface support. If, indeed, the destruction of the super-incumbent estate be one of the privileges necessarily incident and appertenant to coal mining, then the said indenture does convey the right contended for. As, however, we have just determined that such destruction of the surface is in no way incidental to such mining, we must necessarily refuse our assent to the construction contended for. It is in effect but another form of a plea of a general custom or usage permissive of the removal of all subjacent support. For it is argued, that when the vendor used the words “ all rights and privileges incident or usually appertenant to the working and using of coal mines,” he did so in view of such custom, as above referred to, and that his covenant must be interpreted accordingly. The answer to all this is, that as no such custom could have existed, because of its unreasonableness, it could not have entered into the contract of the parties. Support is part and parcel of the reserved estate; it is of common right, and hence must pass, if at all, by express grant, and is not to be defeated by mere implication arising from language that does not import such an effect.

We think the whole question is determined in the negativing of the custom contended for, and hence the judgment of the District Court must be sustained.

We also affirm the same judgment in the writ of error brought by James M. Chadwick.

So far as we can judge from the record presented to us, the loss of the plaintiff’s springs was occasioned by the ordinary operation *88of mining, and would have occurred though no part of the surface had been broken. Mining must interfere more or less with those subterranean streams and percolations of water which appear upon the surface as springs; to say that the owner of the substrata shall be accountable in damage for their disturbance, is to say that he shall have no use whatever of his minerals, for, without interfering to some extent with such waters, mining is impossible.

Judgment affirmed.