state of Virginia before the formation of this state. We are cited to many decisions and text-books, both English and American, which are not said to be binding authority upon this court, but which may be termed persuasive reasoning. They appeal to us, and should govern us so far, and only so far, as they appear to us to be founded upon correct principles. We are seeking the right-the truth-and should accept it wherever found.

"In this investigation, we turn naturally to England, which I think may be termed the parent of the doctrine of subjacent support. The first cases were decided there.

"No case or text-book, either English or American, will be found which rests this doctrine or right of subjacent support upon more than two grounds, or, rather, which holds that the doctrine or right is composed of more than two ingredient propositions. They are: First, a presumptive or implied reservation to the surface owner of sufficient of the subjacent strata or estate to support the surface modo et forma. Second, the principle of law expressed in the Latin maxim, sic utere tuo ut alienum non lædas-literally construed, 'So use your own property as not to injure the property of another.' Many authorities rest the whole doctrine upon the last proposition only. The principle contained in the first proposition, when applied to a case where the fee owner has granted the surface and reserved the underlying strata or estate, would necessitate an implied additional grant of so much of the subjacent strata or estate as was necessary to support the surface, but we are not dealing with that case here.

"The first proposition was announced by Lord Campbell in Humphreys v. Brogdon, 12 Q. B. 739, decided in 1850, in which he used this language: 'If the surface and the minerals are vested in different owners without any deeds to regulate their respective rights, we see no difficulty in presuming that the severance took place in a manner which would confer upon the owner of the surface a right to the support of the minerals. If the owner of the entirety is supposed to have alienated the surface, reserving the minerals, he cannot be presumed to have reserved to himself, in derogation of his grant, the power of removing all of the minerals without leaving a support for the surface; and if he is supposed to have alienated the minerals, reserving the surface, he cannot be presumed to have parted with the right to that support for the surface by the minerals which it had ever before enjoyed.'

"This was not the first case in England upon the subject of subjacent sup port, as thought by some. Lord Campbell in that case also recognized the second proposition above mentioned, but reached his conclusion by analogy to the severance of the ownership of the different stories of a house, quoting Irskine's Inst. as follows: 'Where a house is divided into different floors or stories, each floor belonging to a different owner, which frequently happens in the city of Edinburgh, the proprietor of the ground floor is bound, by the nature and condition of his property, without any servitude, not only to bear the weight of the upper story, but to repair his own property, that it may be capable of bearing the weight. The proprietor of the ground story is obliged to uphold it for the support of the upper, and the owner of the upper must hold that as a roof or cover to the lower.'

"Lord Campbell in that case was very guarded in holding that the law there laid down only applied where the surface belonged to one man and the minerals to another, and no evidence of title appeared to regulate or qualify their rights of enjoyment. The last clause of the opinion contains the following language: 'I need hardly say that we do not mean to lay down any rule applicable to a case where the prima facie rights and liabilities of the owners of the surface of the land and of the subjacent strata are varied by the production of title deeds, or by other evidence.'

"The earlier English case of Harris v. Ryding, 5 M. & W. Rep. 59, decided in 1839, held that the mining rights in the deed in question applied to acts to be done upon the surface of the land, and did not enlarge the rights of the owner of the minerals, under the ground, beyond what they were without the mining rights. Baron Park there reached his conclusion in this language: 'I do not mean to say that all the coal does not belong to the defendant, but that they cannot get it without leaving sufficient support.'

"Some English and American cases have followed the two English cases

cited, resting their decisions, at least in part, upon the theory of a presumptive or implied reservation of so much of the subjacent strata or estate as is necessary to support the surface. The case of Noonan v. Pardee, 200 Pa. 474 [50 Atl. 255, 55 L. R. A. 410, 86 Am. St. Rep. 722], carried that theory to its logical conclusion by holding: 'What the surface owner has a right to demand is sufficient support, even if to that end it be necessary to leave every pound of coal untouched under his land.'

"In Blanchard & Weeks' Note to the case of Jones v. Wagner, in Leading Cases on Mines, etc., p. 617, it is said: "There is a prima facie inference at common law, upon every demise of minerals and other subjacent strata where the surface is retained by the lessor, that the lessor, is demising them in such a manner as is consistent with the retention by himself of his own right to support. The absence of express words showing clearly that he has waived or qualified his right, the presumption is that what he retains is to be enjoyed by him modo et forma, and with the natural support which it possessed before the demise.'

"The theory of implied reservation or implied grants has been couched in different language in different cases. Some cases have said that the subjacent estate owes a servitude to the superincumbent surface. Others have said that the surface owner is entitled to an easement. Others have called

the right of subjacent support ex jure naturæ; and still others have said that the right is a part of the surface, and as such may not pass except by express words. In whatever language the decisions referred to may be couched, in the last analysis they rest upon the authority of Humphreys v. Brogden, holding that there is a presumptive or implied reservation or an implied grant.

"The theory of an implied reservation is earnestly relied on by the learned attorneys for the plaintiff in their original brief. I quote therefrom as follows: 'In a grant like the one at bar, a reserve of the right of surface support is implied.' This proposition of the early English cases, of an implied reservation in the face of an express grant, has been much questioned and criticised in England, and, it seems to me, with great reason. I do not think that, in a case where the owner of the fee granted or conveyed the underlying strata or estate, the theory of implied reservation, amounting if necessary to the whole of the thing granted, could ever have been maintained upon sound reason. It seems to me that the first part of the statement above quoted from Lord Campbell in Humphreys v. Brogdon, viz., that the grantor in case of the reservation of the minerals cannot be presumed to have reserved to himself in derogation of his grant, the power of removing all the minerals without leaving a support for the surface, furnishes a conclusive reason for overthrowing the second part of his statement quoted, viz., that in case the owner of the entirety is supposed to have alienated the minerals, reserving the surface, he cannot be presumed to have parted with the right to that support for the surface by the mineral which it had ever before enjoyed. The latter part of the statement necessarily implies a reservation in derogation of the grant-the very thing condemned in the first part of the statement.

"I cannot see how, against every rule of construction, where a deed has been made by the owner of the fee, granting in express terms all the subjacent strata or estate, that the right of subjacent support may be based upon the ground that there is a presumptive or implied reservation by such a deed, in which there is no express limitation, reservation, or exception, and in derogation of the express terms of the grant, of so much of the subjacent strata or estate, to the extent of all, if necessary, to support the overlying surface. Such a proposition seems to me to be contrary to all principles of law. I am not, however, saying that the doctrine or right of subjacent support does not exist where it has not been parted with; but I do say that I cannot assent to the proposition that it emanates from a presumptive or implied reservation of so much of the estate granted as is necessary to support the surface.

"An inconsistency running through most of the cases holding to the theory of an implied reservation is they concede that after the grant the grantee is the owner of the thing granted.

"In the later case of Eadon v. Jeffcock, L. R. 7 Ex. 379, decided in 1872, the provisions of a lease of a bed of coal were involved; and the court

held that the intention of the parties was that all the coal should be removed, other than certain pillars specified by the terms of the lease, and that the lessees were not otherwise liable for failure to leave support for the surface. There is no difference in principle between a lease and a deed of conveyance. Davis v. Treharne, 6 App. Cas. 460. I do not find that this case of Eadon v. Jeffcock has been overruled. On the contrary, it is cited as late as 1902, as one of the leading English cases. It is true that in the case of Davis v. Treharne, supra, Lord Blackburn alone, of the three Lords, delivering opinions, including the Lord Chancellor, said: 'I cannot agree with what seems to have been said by Baron Cleasby in the case of Eadon v. Jeffcock.' The other Lords delivering opinions did not question that case; and it was not there overruled. In the case of Eadon v. Jeffcock, Baron Cleasby said in part: 'It appears to us that, outside of this contract. there is no reservation of any right to support, whatever the exact nature of that right may be, but that we must look at the contract itself, and by a proper construction of it, having regard, of course, as in all cases, to the subject-matter, arrive at the extent to which the owner authorizes the minerals to be removed.' He also quotes from Lord Wensleydale in Rowbotham v. Wilson, 8 H. L. C. 359, as follows: 'Whether the right to support given by the land below to the land of the owner of the surface, when the strata belong to different persons, properly is to be called an easement, as it is by Mr. Gale in his excellent treatise on Easements, ""a natural easement'" or, whether the owner of the surface has merely a right to enjoy his own land in its natural state and condition with a right of action against the owner of the land adjoining or subjacent when the act of his neighbor does him an injury, are questions immaterial to the decision of this case, though the last proposition appears to be fully established by the judgment of the Court of Exchequer Chamber in Bonomi v. Backhouse,' 9 H. L. C. 503.

"Baron Bramwell, delivering an opinion in the case of Eadon v. Jeffcock, said, in part: 'In this case the defendants have a lease of a seam of 'coal. It may not appear of much consequence by what name their interest is called, but the word "lease" may in such cases have helped to a particular conclusion. For by that word we commonly understand a temporary estate granted in something which, at the end of the term, is to be restored to the lessor in the condition in which it was delivered to the lessee, fair wear and tear excepted, as in a lease of land, house or a movable chattel. But that is not the intention of a lease of a seam of coal. That is more a sale of the coal, or a grant of a right to take and remove it within a certain time, and it is not to be restored at the end of that time to the grantor. Treat it as a sale of the coal, provided the vendee get it all within a certain time; and why should the grantor be at liberty to say: "Though in terms I sold the whole of it, yet by implication I reserved as much as was necessary to support the surface in its natural condition." Why should not the argument be good, "If you meant that exception you should have said so in words.'" Suppose a sale of brick, earth or gravel by metes and bounds, and suppose the vendee took it all, and suppose then, the soil of the vendor outside of the boundary crumble in for want of lateral support, would the vendee be liable to a claim in respect thereof by his vendor, and, if he would, why? With great respect, such a dealing with a seam of coal is more like selling the materials of an intermediate floor than letting or selling the floor. Suppose a man with a threestory house sold the materials of the second floor, would he have a right to say, "But you must leave enough to support my third story or you must prop it up?" It is true a lessee of a mine may take all the coal and artificially prop the surface; but, practically, this is impossible, owing to the expense: and the same argument applies, viz., why did not the grantor stipulate for it? It may be said that if this argument is true of a lease or grant of coal, to be taken in a certain time, it would be equally so of a grant to be taken whenever the grantee thought fit; if so, of all cases where the ownership of mines and surface was severed; and that the authorities are overwhelming the other way. But, in the first place, the argument is not so strongly applicable where the grant allows the grantee to take at any time, because the grantor may well allow his land to be let down provided it is to be down within a certain time, where he would object if he could not tell for all futurity when

it might happen. In the next place, where the terms of the severance are not known, but only that there is a severance, then it may as well be presumed one way as the other. That is a case of ownership, not contract, as this is. Here the terms of the contract that gives the right to take the coal are known, and the question is, why does not the general principle apply, viz., look at what is said in the deed, and add nothing except from a necessity for doing so." Yet Baron Bramwell felt bound by the previous decisions of his own country, and doubted as to his decision.

"It is obvious that the English courts are no longer in sympathy with the theory of presumptive or implied reservation of so much of the thing granted as is necessary for support, as a basis for the right of support. Rowbotham v. Wilson, supra; Bonomi v. Backhouse, supra. Our statute, section 2, c. 72, Code, provides: 'Every such deed, conveying lands, shall, unless an exception be made therein, be construed to include all the estate, right, title and interest whatever, both at law and in equity, of the grantor, in or to such lands.' "Shall we still say that there is an implied reservation, in derogation of the express grant? The answer is apparent.

"What we have said does not dispose of the whole doctrine of subjacent support. What is the doctrine or right in this state, and upon what does it rest? It rests upon, and consists solely of, the second proposition above stated the principle of law, 'sic utere tuo ut alienum non lædas.' This rule of law expresses all that there is of the doctrine. This position seems to be fully recognized by plaintiff's petition for a rehearing.

"It may be asked, what is the difference upon what ground the doctrine or right of subjacent support rests, so that it exists. The reply is that the difference is not so much in the existence as in the manner in which it may be parted with by the surface owner. If the right of support is a reservation of the subjacent estate, or a servitude upon it, or an easement in favor of the surface owner, or a part of the surface estate, there is more show of reason in saying that the right of support may not be parted with by implication or without express words, than there is when the right is considered to consist only of a rule of law commanding that you shall not use your own so as to injure that of another.

"This rule of law relates to the use and enjoyment of property, and not to the ownership of property. As a rule of law it is negative in its application, forbidding the use so as to injure that of another. It is not a servitude when applied between the owner of the surface and the owner of the subjacent strata of land, in the strict sense of that term, any more than it is a servitude upon all property. Likewise, it is not, strictly speaking, an easement in favor of one owner of property against another. It is no more a part of the surface than of the subjacent estate in land, although applicable to both. It has Do more force when applied between the different owners of the surface and subjacent estates in land, than when applied between the different owners of property everywhere and of all kinds. As a rule of law, it must be always the same constant, invariable, and immutable.

"By the side of this principle of law, and to be applied in harmony with it, there is another which must be considered. It is the proprietary right of the owner of property-the principle of absolute dominion where there is absolute ownership.

"Under the principle of law sic utere, etc., I think it is incontrovertible that where the surface and subjacent strata or estate in the same land are owned by different persons, and the right of support has not been parted with by the surface owner, the surface owner is entitled to subjacent support; or, as many of the authorities put it, the surface owner is entitled prima facie to support. All the authorities agree upon that proposition. Also, all of the authorities recognize the principle, sic utere, etc., as one ground of the doctrine of support. Why? Because when the ownership is severed, two separate estates are formed, and neither may be used by the owner to the injury of the other. The owner of the subjacent estate may not so use his own by removing all of it, as to injure the surface estate; but so long as the removal does not injure the surface estate, he may remove.

"Considering this rule of law as the doctrine of subjacent support in this state, how may the surface owner waive or exclude the right of support?

which is simply another form of asking how he may waive or exclude the benefit of the law mentioned. I would answer that he may waive or exclude the benefit of this rule of law in precisely the same way that he may waive or exclude it in relation to any other property owned by him, or any other rule of law the violation of which has caused or will cause him injury. It is now fully settled by the authorities, no matter upon what ground they base the right of support, that the surface owner may waive or exclude it by contract. "The right to remove all the minerals in a certain strata, though the support of the superincumbent strata is destroyed thereby, may be created by apt words.' 6 Am. & Eng. Dec. Eq. 643, and English and American cases there cited. "Great difficulty has been experienced by the courts, upon consideration of the several instruments before them, as to what words, or whether the particular words involved, evinced an intent to part with the right of support. "It seems now to be fully settled that the right of subjacent support may be waived or excluded by plain implication.

"The principal controversy in this case resolves itself to this: Has the plaintiff waived or excluded the right of support, by the deed of conveyance mentioned in the declaration? Let us look at the cases claimed to construe instruments similar in language to that used in this contract. Let me say that none of them interpret language exactly like the contract here presented. "The case chiefly relied upon by plaintiff is the English case of Harris v. Ryding, supra. As we have said, in that case it was expressly held that the mining rights related to acts to be exercised upon the surface of the land, and that they did not give additional rights to the owner of the minerals reserved, under the ground. Certain American cases are cited, such as Carlin & Co. v. Chappel, 101 Pa. 348 [47 Am. Rep. 722]; Burgner v. Humphreys, 41 Ohio St. 340; Livingstone v. Coal Co., 49 Iowa, 369 [31 Am. Rep. 150]; Williamson v. Hay, 120 Pa. 485 [14 Atl. 379, 6 Am. St. Rep. 716], and others. An examination of these cases will show that they adhere, in some form of expression, to the theory of implied reservation or implied grant as a ground of support, following in the footsteps of Humphreys v. Brogdon. So following, they in effect refuse to admit that the owner may waive the right of subjacent support by implication. I cannot pass this subject, however, without saying that I can in no sense agree with the two cases cited of Livingstone v. Coal Co. and Williamson v. Hay, upon the question of construction. language of the instruments construed in those cases will be found in the reports thereof. It seems to me that the language used in those instruments was sufficient to waive and exclude the right of support, without considering whether that right rests upon one or both of the propositions first above mentioned. It was Judge Story who said: 'Where the language of an instrument is neither uncertain nor ambiguous, it is to be expounded according to its ap parent import, and is not to be warped from the ordinary meaning of its terms in order to harmonize it with uncertain suppositions, in regard either to the probable intention of the parties contracting or to the probable changes which they would have made in their contract had they forseen certain contingencies.' Those cases seem to me to do violence to the principles of law stated.

The

"In the Ohio case referred to, the agreement or lease was of the coal, with the right to remove the same. We are not construing that language here. It will be observed that the extent to which the coal might be removed, or the manner of its removal, are not expressed in that instrument. The mining right may not have amounted to more than the grantee or lessee would otherwise have been entitled to as a right of way of necessity, without words. As to that, I do not decide.

"In the work on Mines by Robert Foster McSwinney, of London, issued in 1884, all previous English cases are reviewed, and the rules governing the interpretation of instruments and contracts in relation to support obtaining in England are laid down. I quote from that work, p. 304, as follows: 'If apt words are used, whether in the instrument of severance itself; or in a contem poraneous, or a subsequent instrument; and whether in affirmative or nega. tive terms and whether in express terms, or by plain implication; and whether the underlying mines are granted or excepted; and whether the instrument is voluntary or statutory; the right of support for land in its natural state may be effectually excluded'-citing Rowbotham v. Wilson, 6 E. & B.