Dignan v. Altoona Coal & Coke Co. , 222 Pa. 390 ( 1909 )

Opinion by

Mr. Justice Elkin,

In Pennsylvania the rule has always been that in a grant of all the coal underlying a tract of land, the grantor, in the absence of an express waiver, or, which is the same thing, the use of words which by necessary implication. mean a waiver, is entitled to have his surface reasonably supported by the coal stratum granted. This rule has never been departed from, and as late as Weaver v. Berwind-White Coal Mining Company, 216 Pa. 195, was reasserted- and followed. Nor do we understand this rule to be questioned by the learned counsel for appellant, but, it is contended, that the words of the grant in the present case are such as by necessary implication must be construed to mean a waiver of surface support. The grant is for “all the coal and other minerals lying or being in, upon, or under” the tract of land described in the deed of conveyance. It has been uniformly held that the grant of all the coal does not affect the rule which imposes the servitude of surface support up'on underlying strata. We can discover no words in the present grant sufficient to modify or change the general rule.

It is further argued that the language used in the grant of mining rights and privileges is broad enough to waive the right of surface support. In answer, it may be stated, that the words of the grant relating to mining rights are of the same general import as those ordinarily used in conveyances of coal and other minerals. The words of the grant relied on to support this contention are “all these said rights, liberties and privileges, to be used and exercised without any liability for damages arising and resulting from the use and exercise of the same as aforesaid.” It is argued that in addition to the grant of all the coal, there is an express release of damages arising and resulting from the use and exercise of the mining rights to the extent of releasing any damage that may result to the surface by failure to give it sufficient support. Clearly this was not the intent of the parties. The release of damages in the covenant relied on refers to the proper exercise of the mining rights and privileges in the development and operation of the mines and have no bearing upon or relation to the rule of law requiring surface support. Nor can we agree that Scranton v. Phillips, 94 Pa. 15; Madden v. Lehigh Valley Coal Company, 212 Pa. 63; and Miles v. Pennsylvania Coal Company, 217 Pa. 449, relied on by appellant, are authority for a different doctrine. In each of these cases the grant contained either a release of damages for injury to the surface by the removal of all the coal, or provided for the execution of a full and unconditional release and discharge from any liability for damages to the surface. The principle of surface support was recognized in each case, but it was held to have no application because the parties themselves had covenanted for a different rule by waiving the right, which they not only could do, but did in those cases. In the case at bar there is nothing to indicate an intention to waive surface support, and it has always been held that this absolute right is not to be taken away by implication from language which does not necessarily import such a result. Indeed, the present grant contains what amounts to a reservation of the right to surface support, because, the grantor in express terms enumerates what surface privileges are to be enjoyed by the grantee, such as sinking air shafts, erecting buildings for a pumping station, and then provides that “ such mining operations, however, are not to interfere with the surface of said land.” All of which indicate an intention to reserve all surface rights, including sufficient support, not expressly granted.

The only material question involved in this appeal is that which affects the appellee’s right to surface support, and we agree with the learned trial judge in the construction of the deed of conveyance in this respect.

Judgment affirmed.