[1,2] The District Court properly held that the lease from York to the Harbison-Walker Refractories Company is valid; that the rights of the plaintiff and defendant to mine and remove coal and clay from this 250 acres of land were and are contemporaneous and coexistent. Therefore it was the duty of each, in the exercise of these rights and privileges, to avoid, so far as reasonably possible, any interference with, or damage or hindrance to, the other party having equal rights in these premises; but it by no means follows that the plaintiff, whose rights extended to the entire 720 acres, could, by the location of its coal mine on this 250 acres, in which both parties had equal rights, appropriate to itself all the fire clay and the coal situated in the locality of its coal operations.

Nor could it by surveying, in connection with the mine it was actually operating, a large acreage of this 250-acre tract, in which both plaintiff and defendant had? an equal interest, sequester to itself both the coal and the clay in that tract so surveyed, to the exclusion of the defendant, who, at the time this action was brought and for almost two years prior thereto, in pursuance of its lawful rights under its lease from York, was engaged in the active mining of clay and coal from the tract so surveyed by plaintiff, and without any protest on the part of plaintiff other than as appears in the statement of facts. Nor did the plaintiff in its petition claim that by-the location of its coal mine at this place it appropriated to itself the fire *524clay lying above the coal seam, nor did it ask, in the event that the court held that the defendant’s lease is valid, that the defendant be enjoined from mining or removing clay or coal from any portion of this 250 acres, except above its mines, and even in that respect the prayer of the petition is that the defendant be enjoined from “operating above the mines of the plaintiff to such an extent as interferes with the same.”

Evidence was introduced, however, on the part of the plaintiff tending to prove that it is not proper practice to mine this fire clay before or during the mining of the coal. Evidence was also introduced on the part of the defendant tending to prove that the mining of the clay first is the proper practice and good mining methods, for the reason that the subsidence of the earth’s surface where coal has been removed makes it more difficult and expensive to remove the upper strata of clay.

Whether it is or is not the better practice to remove the coal first, where one individual or corporation owns the exclusive right to mine and remove both clay and coal is not determinative of the question presented in this case. It is clear from this evidence that the mining of either clay or coal first necessarily injuriously affects, to some extent, the mining of the other mineral later. Nevertheless the evidence in this case is not such as to show that the mining of the clay first has such an injurious effect upon the mining of the coal later that one lessee, having a right to mine the clay, should be enjoined from so doing until another lessee, having the right to mine the coal, has removed all the coal therefrom, thereby causing such an irregular subsidence of the earth’s surface as to make the mining of the clay more difficult and expensive. The situation in this case is not different, so far as this question is concerned, than if the plaintiff had the exclusive right of mining the coal only, and the defendant had the exclusive right of mining the clay only. Nor does it appear that the stripping operations necessary to mine and remove this clay differs in any respect from the rights reserved by the York Cement Company to strip and remove the surface for limestone, for it appears from the contract between the York Cement Company and the Portsmouth Company that the stripping operation, in which the York Cement Company was then engaged, extended, not only to the removal of the fire clay, but the coal also.

The evidence offered in the trial of this case fully sustains the finding of the trial court that the defendant, in the exercise of its right to mine and remove this clay, did not avoid, as far as possible, any interference with, or damage or hindrance to, the plaintiff in the operation of its coal mine, in that it destroyed the plaintiff’s roadways to the timber land, without providing other roadways substantially as convenient, and that it failed to make any effort whatever to drain the water collecting on the surface of the ground over plaintiff’s actual mining operation, after it had finished stripping the same. However, keeping in mind the relative, contemporaneous, and coexistent rights of the parties to this action, and the duty of each in the exercise of these rights and privileges to avoid as far as pos*525sible any interference with, or damage or hindrance to, the other lessee, and keeping also in mind the fact that the defendant’s rights are restricted to about one-half of the 720-acre tract covered by the plaintiff’s contract, and that but comparatively only a small portion of this can be mined to advantage by stripping, it would seem that the equities of this case would be fully served by limiting the plaintiff’s relief, by way of injunction, to the prayer of its petition that the defendant be restrained from obstructing the drains of the plaintiff, destroying its roadways, dumping earth in such manner and places that the same may slip over and upon the entries of the mines of the plaintiff, obstructing natural water courses, casting rock, earth, and débris upon the premises of the plaintiff by explosives or otherwise, operating above the mines of the plaintiff to such an extent as unreasonably interferes with the same; and it is therefore ordered and decreed that the injunction as granted by the District Court be so modified.

The judgment of the trial court, awarding the plaintiff damages in the sum of $120, is affirmed.

It does not clearly appear, from the order of reference to ascertain the further damages of the plaintiff, whether the special master commissioner is or is not directed, in the ascertainment of such damages, to take into account the water accumulating in the drifts made by the defendants to remove the clay after it had finished stripping operations over defendant’s working place. The right of the plaintiff to recover damages upon this ground, of interference with its rights, depends entirely upon whether the defendant in making these drifts was simply gouging for the purpose of securing clay as cheaply as possible, or was in good faith attempting to operate drift mines to remove all available clay therefrom. In the latter case, the damages to the plaintiff would be merely incidental to the defendant’s lawful and proper exercise of its right to mine and remove this clay. Upon this question there is a serious conflict in the evidence. The defendant offered evidence tending to prove that it was operating in good faith and was compelled to abandon these drifts temporarily, on account of the condition of the roof, but that it was and is its intention to work around the old drifts in an effort to reclaim them. There is some evidence offered on the part of the plaintiff that these drifts are merely gouges. Wangler, a civil and mining engineer of Dayton, Ohio, who has been engaged in that profession a little over 20 years, was called as an expert witness on behalf of the plaintiff. He testified in reference thereto as follows:

“This gouge — I will say drift; I don’t want to use that word ‘gouge,’ because it don’t sound good to me; 1 don’t believe it was the intention to do that at all; I don’t believe it waa the intention of the Harbison-Walker Company to gouge that property, what is called a gouge, because I believe it is a drift. - * The observation that I had of that was that they had done a lot of timbering there. ° * * Extra heavy timbers, probably eight, ten, twelve inch timbers, I imagine, and as I remember they were probably four to six feet apart on either side of the roadway.”

This witness was certainly well qualified to tell a drift' from a gouge. He was a disinterested witness, yet his evidence was wholly *526favorable, in practically all other respects, to the plaintiff, -and naturally this part of his evidence favorable to the defendant should be given serious consideration by a court or jury, as against the evidence of an interested or clearly antagonistic witness. It would therefore appear that the order to the master commissioner, directing him to ascertain further damages due to the plaintiff, should specifically exclude from the master’s consideration unavoidable damages incident to the proper, careful, and legitimate exercise by the defendant of its right to mine and remove this clay, and the order of reference should be so modified as specifically to direct the special master commissioner to ascertáin the reasonable cost of constructing and maintaining sufficient drains to carry away the water which it may be reasonably anticipated will accumulate in the pits and low places above and reasonably approximate to plaintiff’s mine, caused and produced by the defendant’s stripping operations.

For the purpose of accomplishing such modifications the decree is reversed as to the injunction, and as to the order of reference, and this cause is remanded to the District Court, with directions to enter such modified decree.

The judgment against defendant for costs in the District Court is affirmed. In this court each party will pay its own costs, and judgment may be entered accordingly.

On Motion for Rehearing.

While the petition of the Portsmouth Refractories Company does not ask that the Harbison-Walker Refractories Company be enjoined from the operation of its coal mine upon the 250-acre tract described in its petition for reasons other than as averred in its petition, that the alleged grant from Devi D. York to the defendant is null and void and of no force and effect, and in conflict with the rights of the plaintiff, and subservient to the rights of the plaintiff, nevertheless evidence was introduced, without objection, tending to show that it is operating its coal mine in such near proximity to plaintiff’s coal mine that in one place it has broken through and into plaintiff’s mine.

It is therefore further ordered and adjudged, upon the motion for rehearing, that the plaintiff be permitted by the District Court to amend its petition in this respect to conform to the evidence, and that upon such amended petition the Harbison-Walker Refractories Company be enjoined from operating its present coal mine in the direction of the present workings of the appellee’s coal mine, but may work the same only in an easterly and soutnerly direction, until it reaches and passes the east dotted line on the map of the Portsmouth Refractories property referred to in the decree of the District Court.

The motion for rehearing is overruled.