incumbered, sold by the sheriff or allotted in partition without any effect upon the other." See this case also under chapter XVIII, below.

Hosack v. Crill, 18 Pa. Super. Ct. 90 (1901). H. by article of agreement granted, bargained and sold to W., his heirs and assigns, "all the mineral, coal and iron in, upon and under" a certain tract of land, with rights of ingress and egress, of exploring and removing ore, etc., and of occupying the surface with necessary buildings and refuse. W. agreed to search for coal and ore, and in case of finding them in such quantity and quality as to justify mining, to open and work mines and pay $10 per annum after completion of a railroad by which they could be taken to market and also a royalty on coal mined and removed, failure to pay rental to be deemed an abandoment, and if the railroad was not built in 15 years, annual payments to be made, etc.

H. subsequently died and by his will devised the above tract of land to his daughter C. Held C. was not entitled to royalties; these passed as part of the residuary estate. The conveyance to W. was not a mere license or option but was a sale of the coal in place. A separate estate in the coal was created, which passed to W.; H. retained the surface only. This passed to C. under the will. The royalties were purchase money, which was distributable as personalty. Followed in Hosack v. Crill, 204 Pa. 97.

53 Atl. 640 (1902).

Denniston v. Haddock, 200 Pa. 426, 50 Atl. 197 (1901). Mitchell, J.: "It has been said in a number of cases that a conveyance of the right to mine and remove all the coal in a given tract of land, is a sale of the coal in place although the conveyance may be called a lease. The expression is unfortu nate, for while it may have produced no erroneous result in the cases where it is used, it tends to substitute the general rules appertaining to sales, for the rules properly applicable to the particular contract that may be under consideration by the court. Thus for example, in Hope's Appeal, 29 Weekly Notes Cases, 3C5, which is practically the starting place of the error, the agreement though called a lease was a purchase of the coal at a fixed price per acre, making a liquidated gross sum, which was payable absolutely in instalments ending within thirteen years, though the lessee had a nominal term of ninety-nine in which to remove the coal. It was justly said by the learned court below whose decision was affirmed here that it was 'manifest that the parties contemplated an actual sale of the coal, and not a lease in the ordinary use of that word.' In Sanderson v. Scranton, 105 Pa. 469, the lease was expressly made, 'perpetual until all the coal under the tract is mined,' and it was held that this was such a complete severance that the taxes of the city of Scranton on the coal in place were chargeable to the lessee and not the lessor. So in Kingsley v. Hillside Coal & Iron Co., 144 Pa. 613, 23 Atl. 250, it was again held that there was such a severance that occupation of the surface was not an adverse possession even against a lessee who had not opened up or entered on actual possession of the coal. "With the decisions in these cases no fault can be found, but the expres sion that a conveyance of coal in place, even by a lease for a limited term is a sale, is inaccurate as a general proposition of law, and unfortunate from

its tendency to mislead, which is apparent in some of the subsequent cases. Whether it would be better to call such an instrument accurately what it certainly was at common law, a lease without impeachment of waste, or to endeavor to reconcile all the decisions by calling it a conditional sale. is not necessary at present to discuss. The point to be noted is that the rules applicable to sales are not to be applied indiscriminately to such instruments but each is to be construed like any other contract by its own terms.

"The defense in the present case is an ingenious misapplication of the principle of a sale. Appellant in compliance with his obligation under the lease paid a minimum royalty each year, and at the end of his term had paid more royalty than would have been required by the coal actually mined. He remained in possession of the land for a year under arrangement with one of the owners, and then took a new lease, under which the royalties now sued for accrued. He now claims to defalk the overpayments under the old lease, on the ground that he had paid for the coal and was entitled to it without further charge, because under his continued possession he could take it away without a trespass. The defect of this view is in the assumption that he had paid for the coal. He had not. He had paid his rent on the stipulated terms, but he had paid nothing for the coal in place. His sole claim and title to that was to mine it during the term of the lease. As to it he was in the position of a lessee of a house bound to pay rent whether he occupied it or not. The fact that he paid without occupying it would not excuse his liability for further rent if he accepted a new lease.

"Appellant admits that if he had gone out of possession at the termination of his lease, he would have had no further claim to the coal, but his reason assigned is not the correct one. The right to remove the coal would have ended, not because the lessee had forfeited or abandoned his property in it but because he had never acquired any such property, his right to do so being expressly limited to the term covered by the lease.

"There is no analogy to the case of trade fixtures. Such fixtures start as the property of the tenant, and remain his until he forfeits them by failing to detach them from the realty while he is in possession. Here the coal never was appellant's and his only right to acquire it was limited to the term.

"Nor can the argument that time was not of the essence of the contract prevail. The principle invoked is not applicable. Time in a lease in respect to the length of the term is a limitation of the estate,, and always of the essence of the conveyance."

Dorr v. Reynolds, 26 Pa. Super. Ct. 139 (1904). "It was said in Hosack v. Crill, 18 Pa. Super. Ct. 90, that: 'It is now well settled that an instrument which is in its terms a demise of all coal in, under and upon a tract of land, with the unqualified right to mine and remove the same, is a sale of the coal in place. And this, too, whether the purchase price is a lump sum or is a certain rent or royalty, and notwithstanding a term is specified in which the coal is to be taken out.' Numerous authorities are cited in

support of that declaration of law. The fact that the instrument is called a lease and the parties describe themselves as lessor and lessee and that payment for the coal is called rent does not change the legal effect of the deed."

"It cannot be doubted that the intention of the contracting parties in this case was there should be a sale of all the coal. It is so expressed in the deed and the provisions of the contract as to mining do not admit any other conclusions. The time within which the coal must be removed is not limited and the grantee is authorized to mine all the coal that is merchantable. He was bound, moreover, to pay for the quantity of coal stipulated to be mined whether it was mined or not.

"The provision for the right of surrender by the grantee in the event that coal could not be mined at an average cost not exceeding the average cost of mining in the mines of any one of the companies named in the contract or the liberty of forfeiture for nonperformance according to the terms of the contract does not change the character of the interest acquired by the grant. The estate is held subject to these conditions."

Huss v. Jacobs, 210 Pa. 145, 59 Atl. 991 (1904). A deed contained this reservation: "And it is further covenanted and agreed that this deed does not convey any right, title or interest to the party of the second part in coal or coal lands situated beneath the said property, but that the said parties of the first part shall still hold possession of said coal banks with the right of mining the same, and the right of way to said coal banks, the same as if this deed had never been executed, the first part has no privilege of selling coal at the banks."

"This was a complete severance of the coal from the surface.. While at the date of this deed 1859, the power to separate land horizontally into two or more estates by deed was not generally recognized and acted upon by the profession, although the power had long been settled in England as well as the construction to be given to the instruments of severance, yet just about the date of this deed October, 1858, this court held in Caldwell v. Fulton, 31 Pa. 475: 'Coal and minerals in place are land. It is no longer to be doubted that they are subject to conveyance as such.' The tendency had been in many cases heretofore, to twist the right to the mineral into an incorporeal hereditament, a right issuing out of the land, instead of the land itself. In about a year afterwards, this case was followed by Caldwell v. Copeland, 37 Pa. 427, 78 Am. Rep. 436, in which was said: 'Mines are land and subject to the same laws of possession and conveyance.' This has been the settled law consistently followed by us since. When then, Huss took his deed from Leonard's heirs he took an absolute estate in fee simple in the land extending indefinitely downwards as well as upwards. When he made his deed to Long, by the reservation, he severed his estate horizontally, he did not convey the coal which he continued to hold under the Leonard deed, he did convey the surface to Long and that was his no longer; but the coal was his land thereafter just as much as the surface was Long's land. He could no more be divested of any right or title to this substratum of land than Long could be divested of his superstratum, the surface." Dean, J.

Coolbaugh v. Lehigh & Wilkes-Barre Coal Co., 213 Pa. 28, 62 Atl. 94, 4 L. R. A. (N. S.) 207 (1905). On August 30, 1870, Milton Dana and others, owners of coal lands in Luzerne county, entered into an agreement with the Wilkes-Barre Coal and Iron Company, granting, demising and leasing unto it, its successors and assigns, all the coal in said lands. The appellee succeeded to all the rights of the original lessee. The demise or lease, as the agreement is termed by the parties, was to date from January 1, 1870, and "to determine and end when all the mineable (and) anthracite coal shall have been mined and removed from the demised premises, unless the term be sooner ended under provisions" thereinafter contained. The lessee covenanted to pay to the lessors the annual rental of $20,000, in quarterly instalments of $5,000 each, in considration of which it is permitted annually to mine and remove S0,000 tons of coal. There is a further provision that, "if the said party of the scond part shall pay said twenty thousand dollars rent in any one year, as is hereinbefore provided, and during that year less than eighty thousand tons of coal, of the pounds aforesaid, be mined and removed, the said party of the second part may, in any subsequent year within six years thereafter, during the continuance of this lease, mine and move sufficient coal to make up the deficiency." On default in the payment of "an installment of rent, or any part thereof," for a period of sixty days, it was covenanted and agreed that the lessors, in their option, might declare the term of the "lease" at an end, and the "lease" was thereupon to absolutely cease and determine. Dana received his share of the payments made for the coal to April 1, 1880. On April 3, 1880, the sheriff on execution against him sold all his "right, title and interest in and to all the coal in and under" the land embraced in the lease. It was held that by this sale there passed to the purchasers Dana's right to receive rentals or royalty under the lease. After quoting with approval Denniston v. Haddock, as above, the court said: "If the lessee had paid the rental of $20,000 for the first year, but had mined no coal, and in the second year, on its default in payment of a quarter's rent, the lessors had, in accordance with the terms of the lease, declared it terminated, and resumed possession under the forfeiture clause, the lessee could not thereafter have mined and removed any coal because it had paid $20,000 for the first year. This is the clear meaning and intent of the contract. That sum would have been retained simply as rent paid and received as such for the right to occupy and use the land by removing the coal therefrom for one year. Lehigh & Wilkes-Barre Coal Co. v. Wright, 177 Pa. 387, 35 Atl. 919; Lehigh Valley Coal Co. v. Everhart, 206 Pa. 118, 55 Atl. 864. It is only 'during the continuance of the lease,' that is, before the rights of the lessee have terminated by a forfeiture of them, that it can, during any six years following an annual payment of $20,000, appropriate to the payment of coal mined so much of that sum as has not been appropriated in any prior year to the payment of coal mined. After the expiration of six years no such appropriation can be made, and the minimum royalty is to be retained purely as rent for the year's occupancy of the land.

"The agreement of the parties is that the minimum rental of $20,000 may be applied by the lessee on account of the purchase money of the coal, provided it will actually purchase and acquire title in the manner pointed out in the agreement, viz., by mining it within six years. Until it is so mined the legal title remains in the lessors, and if not taken from them within six years during the continuance of the lease in the manner stated, the money paid them belongs to them as rental for their land which had been occupied by the lessee, though not used and appropriated by it as it had the right to do. This was just the situation when the interest of Dana in the coal land was seized and sold under the execution against him. If the coal had all been mined, the worked-out space would have reverted to him, and what had not been worked out was under a continuing contingency of reverting to him by a forfeiture of the lease. He still had an interest in the coal as land, title to portions of which, and in the end to all of which, he had agreed should pass from him and become vested, not only equitably, but legally, in the lessee, as from time to time it acquired the legal title to the coal by mining and removing it. But until the legal title was so taken from him it remained in him, as in the case of any vendor of real estate. This is the title that was still in him when it was sold from him by the sheriff to Birbeck and Van Horn, and having acquired it, they are now entitled to all the rights under it. The one involved in this case is the right to the royalties, which, under the agreement of August 30, 1870, are to be regarded as pro tanto purchase-money payments for the coal in place, if mined and removed within a stipulated time. The title thereto is acquired by using these royalties within the stipulated period of six years during the continuance of the lease as payments for coal actually taken out and away.

"As the question raised on this appeal did not arise in any of the cases holding a lease like the present to be a sale of coal in place as land, they are not to be regarded as in conflict with the view here expressed. Though expressions in some of them are apparently irreconcilable with it, it is to be remembered, as is said in Denniston v. Haddock, 'the rules applicable to sales are not to be applied indiscriminately' to these leases; and when, as here, the question is as to the right of the grantor or lessor to subject the interest in the land which remains in him to the lien of a judgment or mortgage, no other doctrine than the one announced by the court below can accord with reason or the authorities relating to the interest retained by a vendor under an agreement for the sale of his land. The order of the court below discharging the rule for judgment is affirmed."

Gallagher v. Hicks, 216 Pa. 243, 65 Atl. 623 (1907). "There is no question at all that coal or other minerals may be severed from the surface of the land, and may run in its own different line of title without reference to the other. Nor is it disputed that a contract regarding coal in place may be a sale absolute, a conditional sale or a lease. There is nothing revolu tionary in the cases referred to. In Denniston v. Haddock it was pointed out that in Hope's Appeal, 29 Weekly Notes Cases, 365, there was in fact a sale of the coal in place and the case was directly decided on that basis.