Opinion by
Rice, P. J.,
This was an action of trespass for mining coal. As the case was submitted to the jury it was made to turn on the question of the plaintiffs’ title by adverse possession for twenty-one years immediately prior to the commission of the alleged trespass in 1895. The defendants’ contention was, in effect, that in order to prove title in that way it was incumbent on the plaintiffs to show such possession for twenty-one years prior to January 7, 1874, the date of the coal lease to E. W. Giddings from John Ross and Susan F. O’Connor, the then owners of [129] the paper title to the land in dispute. They requested instructions to the effect that this agreement was by its terms a sale of the coal in and under the land, and operated as a severance thereof from the surface; and, having been recorded, the purchaser entered thereby into possession, and his possession thereafter was not affected by the state of the title to or the possession of the surface. The court below held that the Giddings lease was not a sale of the coal in place, and did not work a severance of the coal from the surface so as to affect the rights of a third party who was in adverse possession at the time under a claim of right. It is conceded that if John Finnegan, under whom the plaintiffs claim, had been in the actual, adverse, exclusive and uninterrupted possession of the land in dispute for twenty-one years prior to the lease, his rights were not affected thereby. Possibly the jury might have found that fact if the question had been submitted to them, but it was not. And, as they well might have found that he had not had possession for the requisite length of time prior to 1874 it becomes, necessary to determine what was the effect of the making and. recording of the lease upon the subsequent possession of John Finnegan and those claiming under him. In the view we take of the case this is the only question we need discuss.
That minerals beneath the surface of a tract of land may be conveyed by deed, distinct from the right to the surface, is, of course, unquestioned. After severance of the surface from the underlying strata, whether by reservation or by express grant, the mineral right is an independent interest in land; it forms a distinct possession; is held upon a distinct title; and is as much the subject of sale, devise or inheritance and of separate taxation and incumbrance as the surface. The technical words, “ grant, bargain and sell,” or the like, are not necessary to the creation of a separate estate in the coal, provided the intention to sell the coal is manifest; and it is now too well settled to admit of argument, that an instrument which is in terms a demise of all the 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 money stipulated for is a lump sum or is a certain price for every ton mined, and is called rent or royalty: Sanderson v. Scranton, 105 Pa. 469; R. R. Co. v. Sanderson, 109 Pa. 583; Montooth v. Gam[130] ble, 123 Pa. 240; Kingsley v. Hillside C. & I. Co., 144 Pa. 613; Lazarus’ Estate, 145 Pa. 1; Timlin v. Brown, 158 Pa. 606; Plummer v. Hillside C. & I. Co., 160 Pa. 483; Lehigh Coal Co. v. Wright, 177 Pa. 387; Hope’s Appeal, 29 W. N. C. 365; Fairchild v. Fairchild, 7 Cent. Rep. 873. It was intimated in R. R. Co. v. Sanderson that there might possibly be a distinction between a perpetual lease, that is, one to continue until all the coal under the tract is mined, and a term lease, but this distinction has not been recognized in later cases. “ Where a fair interpretation of the written agreement shows that a sale was intended by the parties and a right to mine and remove all the coal is'conferred by it in express terms, or by plain and necessary implication, it will constitute a sale, notwithstanding a term is created within which the coal is to be taken out: ” Kingsley v. C. & I. Co., supra. Construing the Giddings lease of 1874 in the light of the above cited decisions we conclude that it constituted a sale of all the coal, conditioned upon its .being taken out within the period specified.
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Opinion by
Rice, P. J.,
This was an action of trespass for mining coal. As the case was submitted to the jury it was made to turn on the question of the plaintiffs’ title by adverse possession for twenty-one years immediately prior to the commission of the alleged trespass in 1895. The defendants’ contention was, in effect, that in order to prove title in that way it was incumbent on the plaintiffs to show such possession for twenty-one years prior to January 7, 1874, the date of the coal lease to E. W. Giddings from John Ross and Susan F. O’Connor, the then owners of [129] the paper title to the land in dispute. They requested instructions to the effect that this agreement was by its terms a sale of the coal in and under the land, and operated as a severance thereof from the surface; and, having been recorded, the purchaser entered thereby into possession, and his possession thereafter was not affected by the state of the title to or the possession of the surface. The court below held that the Giddings lease was not a sale of the coal in place, and did not work a severance of the coal from the surface so as to affect the rights of a third party who was in adverse possession at the time under a claim of right. It is conceded that if John Finnegan, under whom the plaintiffs claim, had been in the actual, adverse, exclusive and uninterrupted possession of the land in dispute for twenty-one years prior to the lease, his rights were not affected thereby. Possibly the jury might have found that fact if the question had been submitted to them, but it was not. And, as they well might have found that he had not had possession for the requisite length of time prior to 1874 it becomes, necessary to determine what was the effect of the making and. recording of the lease upon the subsequent possession of John Finnegan and those claiming under him. In the view we take of the case this is the only question we need discuss.
That minerals beneath the surface of a tract of land may be conveyed by deed, distinct from the right to the surface, is, of course, unquestioned. After severance of the surface from the underlying strata, whether by reservation or by express grant, the mineral right is an independent interest in land; it forms a distinct possession; is held upon a distinct title; and is as much the subject of sale, devise or inheritance and of separate taxation and incumbrance as the surface. The technical words, “ grant, bargain and sell,” or the like, are not necessary to the creation of a separate estate in the coal, provided the intention to sell the coal is manifest; and it is now too well settled to admit of argument, that an instrument which is in terms a demise of all the 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 money stipulated for is a lump sum or is a certain price for every ton mined, and is called rent or royalty: Sanderson v. Scranton, 105 Pa. 469; R. R. Co. v. Sanderson, 109 Pa. 583; Montooth v. Gam[130] ble, 123 Pa. 240; Kingsley v. Hillside C. & I. Co., 144 Pa. 613; Lazarus’ Estate, 145 Pa. 1; Timlin v. Brown, 158 Pa. 606; Plummer v. Hillside C. & I. Co., 160 Pa. 483; Lehigh Coal Co. v. Wright, 177 Pa. 387; Hope’s Appeal, 29 W. N. C. 365; Fairchild v. Fairchild, 7 Cent. Rep. 873. It was intimated in R. R. Co. v. Sanderson that there might possibly be a distinction between a perpetual lease, that is, one to continue until all the coal under the tract is mined, and a term lease, but this distinction has not been recognized in later cases. “ Where a fair interpretation of the written agreement shows that a sale was intended by the parties and a right to mine and remove all the coal is'conferred by it in express terms, or by plain and necessary implication, it will constitute a sale, notwithstanding a term is created within which the coal is to be taken out: ” Kingsley v. C. & I. Co., supra. Construing the Giddings lease of 1874 in the light of the above cited decisions we conclude that it constituted a sale of all the coal, conditioned upon its .being taken out within the period specified.
But it is to be observed that there is no evidence, at least none was admitted on the trial, that E. W. Giddings ever took actual possession under his lease. We have, then, the simple question whether the mere recording of a conveyance of the coal stops the running of the statute of limitations in favor of one in the actual, adverse and exclusive possession of the land under color of title-at the time the conveyance was made. If it were a conveyance of the surface the question would be free from difficulty, and would require no discussion. Why should it be held that the mere recording of a conveyance of the coal has a different effect upon the continuity of the possession of the holder of the adverse title? We can discover no satisfactory reason for so holding. The cases do indeed decide that where, by deed, there has been a severance of the right to the surface from the right to the underlying coal, the owner of the minerals will not lose his right or his possession by any length of nonuser. And in such a case the owner or subsequent occupier of the surface can acquire no title by the statute of limitations to the minerals by his exclusive and continued occupancy and enjoyment of the surface merely: Seaman v. Vawdrey, 16 Ves. 390; Caldwell v. Copeland, 37 Pa. 427; Armstrong v. Caldwell, 53 Pa. 284; Phœnix Iron Co. v. Lewis, 7 [131] Cent. Rep. 515; Kingsley v. Hillside C. & I. Co., 144 Pa. 613; Plummer v. Hillside C. & I. Co., 160 Pa. 483; Algonquin C. & I. Co. v. Northern C. & I. Co., 162 Pa. 114; Ashman v. Wigton, 9 Cent. Rep. 629. But in all of these eases the claim of title by possession of the surface had its inception after it and the underlying coal strata had been severed in title. They were then two distinct possessions, the possession of the holder of each estate being referable to his title, unless by unequivocal acts that would give title to a stranger he has extended it upward or downward, as the case may he. Of such a case it is held: “He (the owner of the coal) must be disseised to lose his right; and there can be no disseisin by act that does not actually take the minerals out of his possession: ” Armstrong v. Caldwell, supra. But here disseisin of the coal 'as well as of the surface had actually taken place before their severance in title. One was as much out of the actual possession of the owner of the asserted legal title as the other. At the date of the lease, and for some years before, John Finnegan was in the actual, open, adverse, and exclusive possession of the land under a claim of right. His deed was on record, and, in connection with his possession, was notice to the world of the extent of his claim, which presumptively included not merely the surface but all beneath and above it, in accordance with the ancient common law maxim. He claimed, and was in possession of, the land, which, says Blackstone, “hath also, in its legal signification, an indefinite extent upwards as well as downwards : ” 2 Bl. Com. 18. Neither he nor his successors in title ever did anything which could be construed as restricting their possession to the surface merely. ' Nor, as we have seen, did the purchaser of the coal attempt to oust them, unless the recording of his lease was an ouster — a proposition that we cannot agree to. They continued their possession after the lease as before, and, when the defendant, in Iris naming operations, (under an entirely different lease) crossed the line up to which they claimed, they brought this suit. Under the facts necessarily implied in the verdict of the jury we are clear that they had a right to recover.
As between the parties to the instrument, and their privies, a conveyance of the underlying coal — the grantor retaining the surface — effects severance in title; under our statute the re[132] cording of the conveyance takes the place of livery of seisin, and the subsequent possession of the bolder of each estate follows his right. But as between the grantee and a third party, who is in the actual, open, adverse, exclusive and peaceable possession of the land at the time, the recording of the instrument is not equivalent to an entry, and — -there being no other interruption of his possession — when the full period of twenty-one years from its inception has elapsed his title to the land becomes perfect.
This conclusion renders separate discussion of the several assignments of error unnecessary.
Judgment affirmed.