Opinion by
Mr. Justice Mitchell,
The pai'ties derived title in common, under the will of their father, in 1835. In 1895 appellant brought this action for partition of the coal only, thereby admitting that the surface of the land was held in severalty; the appellee defended on a parol partition claimed to have beeu made in 1848. Both parties therefore agreed that there was a partition, and as it was admitted that there had never beeu any deed between them, the partition necessarily rested in parol. Appellant however claimed that what was done in 1848 was a temporary division of the surface for convenience of working only, which did not include the coal, and which was incomplete, but ripened into title in sever[516]*516alty as to the surface by the long continued separate possession of the purparts taken under it. Appellee on the other hand contended that it was a complete and executed partition from its date, and included the coal as well as the surface. The difference as to how the partition of the surface became effective, whether by virtue of the agreement itself, or only by the subsequent several possession is not material, and the only substantial question in controversy was what the partition included, the whole land, or the surface only. The learned judge below charged the jury that there could be no parol severance of the estate in the coal from the estate in the surface, and therefore if they found there had been a partition at all, it was a partition of the whole, or to use his very graphic expression, if the jury found that there was a parol partition, “ the cleaver of the law severed the ownership from the surface clear down to the centre of the earth.” This was practically a direction to find for the defendant, and all the assignments of error, though taken to different parts of the charge, and in varied phrase, are based upon this ruling of the court. We are of opinion that it was error. It was settled as early as Ebert v. Wood, 1 Binn. 216, that a parol partition between tenants in common is valid and conclusive. Chief J ustice Tilghman puts the decision mainly on the ground of part performance, which the English courts of equity had held to také such contracts out of the bar of the statute of frauds. But another and equally weighty reason might be added from the nature of tenancy in common. As each tenant has not only title, but joint and several possession of the whole and of every part, the change to a title in severalty in any specified part is not such a transfer of title to land as is within the mischief contemplated by the statute of frauds. This reason was indicated in Mellon v. Reed, 114 Pa. 647, and again more fully in McKnight v. Bell, 135 Pa. 358, where it is said by our late Brother Clark, “ a partition which merely severs the relation existing between tenants in common in the undivided whole and vests title to a correspondent part in severalty is not such a sale or transfer of title as will be affected by the statute of frauds. The reason of this rule rests in this: that the partition is not an acquisition or purchase of land, nor is it in any proper sense a transfer of the title to land; it is a mere setting apart in severalty of the same interest held in common, [517]*517not iii other, but in the same lands.” The cases have drawn tbe line between a mere parol agreement to part, and an agreement followed by acts of tlie parties on the land itself, indicating several possession taken in execution of tbe agreement. Tbe former is inoperative but the latter is valid.
Tlie riglit of partition by tlie parties is an incident of ownership and, like the right of ail owner in severalty to alien, is only limited by sucli restraints as the law has put upon it in regard to personal capacity and mode of conveyance. The statute of frauds requires ordinary conveyances of land to be in writing, but as we have already seen the statute does not apply to executed partitions between tenants in common. They are therefore free, and as they rest solely on the agreements and intentions of the owners, we see no room for distinctions in regard to the methods of partition, whether by vertical or by horizontal linos. There is no difference in tbe right, nor in any other respect except in facility of proof of tlie intent, inasmuch as tlie ordinary mode is by vertical lines, and therefore such partition is more readily presumed, and acts done in pursuance of it on tlie surface are more easily sliown. Horizontal divisions of land as such are comparatively rare, but they are well established, and may be made in tlie same way and subject to the same rules as any other mode, if the parties so agree. Their modern development, especially in this state, may well account for the absence of cases in our reports, but the principles on wbicli such questions are to be decided do not admit of doubt. Tliey arc illustrated by tlie case of Caldwell v. Copeland, 37 Pa. 427, where, although the court is treating of a conveyance by deed, it said, “ tliere is no more reason wliy mines in another’» land whether opened or unopened may not be lield by a deed..... than why land in its most ordinary signification may not be so lield. In other words mines are land, and subject to tbe same laws of possession and conveyance.” And the analogous right of severance of the strata of land horizontally by the individual owner by acts as well as by deed is established in Delaware & Hudson Canal Co. v. Hughes, ante, p. 66, opinion filed since this case was argued.
There was no objection to tbe plaintiff proving if be could that the partition was limited to tbe surface, and tliat tbe coal was left in common. Tbe parties might make partition of all [518]*518tbeir land or of any part of it, and in any manner they chose to agree upon. In Coleman v. Coleman, 19 Pa. 100, the parties made partition of their land in 1787, excepting out of it the Cornwall ore banks, which they agreed should remain in common. This Court held not only that the partition Avas valid but that the retention of the ore banks in common was part of the consideration for the purparts in severalty, and therefore could not be subject to a new partition.
The ordinary mode of partition being of the Avhole land by vertical lines, and it being admitted that a partition had been made, the burden Avas upon the plaintiff to sIioav that it Avas limited to the surface. In plaintiff’s sixth point he asked the court to say that his continuing to take coal after the partition, even if only permissive, shoAved that there never Avas a fully executed partition of the coal, and plaintiff therefore must recover on his written title. This point hoAvever could not have been affirmed. The execution of a parol partition Avhieh is required by the cases means such acts of the parties upon the land as shoAv a part performance of the agreement, sufficient, as suggested by Chief Justice Tilghman, supra, to bi'ing it within the equity of enforcement. The presumption from the conceded fact of partition was that it included the coal as well as the surface, that being' the usual method. On the question whether it did or not the plaintiff was entitled to go to the jury, but he had the burden of proof. An occasional use, such as Avas shown here, if the jury should find it to be permissive only, and not in the exercise of a right, would not prevent the partition from being executed in the legal sense, and including the coal as well as the surface. It Avas evidence of a claim of right, but not conclusive either of such right or of the failure to execute the partition.
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Opinion by
Mr. Justice Mitchell,
The pai'ties derived title in common, under the will of their father, in 1835. In 1895 appellant brought this action for partition of the coal only, thereby admitting that the surface of the land was held in severalty; the appellee defended on a parol partition claimed to have beeu made in 1848. Both parties therefore agreed that there was a partition, and as it was admitted that there had never beeu any deed between them, the partition necessarily rested in parol. Appellant however claimed that what was done in 1848 was a temporary division of the surface for convenience of working only, which did not include the coal, and which was incomplete, but ripened into title in sever[516]*516alty as to the surface by the long continued separate possession of the purparts taken under it. Appellee on the other hand contended that it was a complete and executed partition from its date, and included the coal as well as the surface. The difference as to how the partition of the surface became effective, whether by virtue of the agreement itself, or only by the subsequent several possession is not material, and the only substantial question in controversy was what the partition included, the whole land, or the surface only. The learned judge below charged the jury that there could be no parol severance of the estate in the coal from the estate in the surface, and therefore if they found there had been a partition at all, it was a partition of the whole, or to use his very graphic expression, if the jury found that there was a parol partition, “ the cleaver of the law severed the ownership from the surface clear down to the centre of the earth.” This was practically a direction to find for the defendant, and all the assignments of error, though taken to different parts of the charge, and in varied phrase, are based upon this ruling of the court. We are of opinion that it was error. It was settled as early as Ebert v. Wood, 1 Binn. 216, that a parol partition between tenants in common is valid and conclusive. Chief J ustice Tilghman puts the decision mainly on the ground of part performance, which the English courts of equity had held to také such contracts out of the bar of the statute of frauds. But another and equally weighty reason might be added from the nature of tenancy in common. As each tenant has not only title, but joint and several possession of the whole and of every part, the change to a title in severalty in any specified part is not such a transfer of title to land as is within the mischief contemplated by the statute of frauds. This reason was indicated in Mellon v. Reed, 114 Pa. 647, and again more fully in McKnight v. Bell, 135 Pa. 358, where it is said by our late Brother Clark, “ a partition which merely severs the relation existing between tenants in common in the undivided whole and vests title to a correspondent part in severalty is not such a sale or transfer of title as will be affected by the statute of frauds. The reason of this rule rests in this: that the partition is not an acquisition or purchase of land, nor is it in any proper sense a transfer of the title to land; it is a mere setting apart in severalty of the same interest held in common, [517]*517not iii other, but in the same lands.” The cases have drawn tbe line between a mere parol agreement to part, and an agreement followed by acts of tlie parties on the land itself, indicating several possession taken in execution of tbe agreement. Tbe former is inoperative but the latter is valid.
Tlie riglit of partition by tlie parties is an incident of ownership and, like the right of ail owner in severalty to alien, is only limited by sucli restraints as the law has put upon it in regard to personal capacity and mode of conveyance. The statute of frauds requires ordinary conveyances of land to be in writing, but as we have already seen the statute does not apply to executed partitions between tenants in common. They are therefore free, and as they rest solely on the agreements and intentions of the owners, we see no room for distinctions in regard to the methods of partition, whether by vertical or by horizontal linos. There is no difference in tbe right, nor in any other respect except in facility of proof of tlie intent, inasmuch as tlie ordinary mode is by vertical lines, and therefore such partition is more readily presumed, and acts done in pursuance of it on tlie surface are more easily sliown. Horizontal divisions of land as such are comparatively rare, but they are well established, and may be made in tlie same way and subject to the same rules as any other mode, if the parties so agree. Their modern development, especially in this state, may well account for the absence of cases in our reports, but the principles on wbicli such questions are to be decided do not admit of doubt. Tliey arc illustrated by tlie case of Caldwell v. Copeland, 37 Pa. 427, where, although the court is treating of a conveyance by deed, it said, “ tliere is no more reason wliy mines in another’» land whether opened or unopened may not be lield by a deed..... than why land in its most ordinary signification may not be so lield. In other words mines are land, and subject to tbe same laws of possession and conveyance.” And the analogous right of severance of the strata of land horizontally by the individual owner by acts as well as by deed is established in Delaware & Hudson Canal Co. v. Hughes, ante, p. 66, opinion filed since this case was argued.
There was no objection to tbe plaintiff proving if be could that the partition was limited to tbe surface, and tliat tbe coal was left in common. Tbe parties might make partition of all [518]*518tbeir land or of any part of it, and in any manner they chose to agree upon. In Coleman v. Coleman, 19 Pa. 100, the parties made partition of their land in 1787, excepting out of it the Cornwall ore banks, which they agreed should remain in common. This Court held not only that the partition Avas valid but that the retention of the ore banks in common was part of the consideration for the purparts in severalty, and therefore could not be subject to a new partition.
The ordinary mode of partition being of the Avhole land by vertical lines, and it being admitted that a partition had been made, the burden Avas upon the plaintiff to sIioav that it Avas limited to the surface. In plaintiff’s sixth point he asked the court to say that his continuing to take coal after the partition, even if only permissive, shoAved that there never Avas a fully executed partition of the coal, and plaintiff therefore must recover on his written title. This point hoAvever could not have been affirmed. The execution of a parol partition Avhieh is required by the cases means such acts of the parties upon the land as shoAv a part performance of the agreement, sufficient, as suggested by Chief Justice Tilghman, supra, to bi'ing it within the equity of enforcement. The presumption from the conceded fact of partition was that it included the coal as well as the surface, that being' the usual method. On the question whether it did or not the plaintiff was entitled to go to the jury, but he had the burden of proof. An occasional use, such as Avas shown here, if the jury should find it to be permissive only, and not in the exercise of a right, would not prevent the partition from being executed in the legal sense, and including the coal as well as the surface. It Avas evidence of a claim of right, but not conclusive either of such right or of the failure to execute the partition.
The will of John Boyer had no bearing on the case except as showing that he had in his mind the timber, coal and limestone on the tract as distinct elements to be considered in the equal division which he directed. But his devise was of the fee in common, and his devisees could divide in any way they pleased.
Nor had the statute of limitations any bearing on the case. The plaintiff clearly never had any possession of the coal which was either adverse or exclusive, and the surface as already said, was admitted by both parties to be held in severalty. There was [519]*519no dispute as to the parol partition, and the only contested issue was what it included. The jury should have been instructed that the parties had the right to make such partition as they «hose, either of the whole land or of the surface only, that the presumption was that they parted the whole, but that presumption would give way to the intention of the parties, and it was for the jury to determine from all the evidence what the parties intended to include in the partition, and to find a verdict that would carry out that intention.
Judgment reversed and venire de novo awarded.