Mr. Justice Gordon
delivered the opinion of the court, January 6 th 1876.
The rights of both the plaintiffs and defendants, who hold adjacent coal fields, are derived from a common grantor, James H. Hays. The title of the defendants ante-dates that of the plaintiffs, hence, it is not controverted but that any right or privilege, directly conferred, by the deed or articles of Hays to the vendors of the former, or which, by necessary construction or implication, arises therefrom, must dominate any conflicting right or privilege found in the conveyance to the plaintiffs. They must take subject to the precedent grant. If, then, the defendants, Horner, Wood & Co., had the right under their contract to withdraw all the coal found within their grant, without leaving any ribs, pillars or other supports to sustain the surface, it is clear that the subsequent vendees of the adjoining tract took subject to such right, and of the consequent falling in of the superincumbent land, and the intrusion of surface water into their works, they cannot complain. The whole question, which we are required to consider, is raised from that part of the charge of the learned judge of the court below, wherein, after stating that the owner of a mine has a right to mine his coal in an ordinary way so long as that does no injury more than what necessarily arises from the removal of the coal, and that he would not be liable for the collection and flow, by reason of such mining, of subterranean water upon lower mines, he adds : “ But otherwise where mining is done in such a manner (whether the ordinary way or not) as to introduce foreign water from the surface or higher land, by reason of the roof falling in and thus introducing water from the surface which would not have flowed in if the roof of the mines had remained undisturbed and compact after the coal was removed.” This was responsive to the [248] defendants’ second point, which was negatived, which required the court to charge that the defendants were not liable for the introduction of such surface water, if not occasioned by the wilful and wanton acts of the defendants, but was a necessary consequence of their mining according to the “ approved, established and customary course and practice of mining in this region, and without any negligence in the operation of mining.” The defendants thus endeavored to put themselves upon an alleged custom of the country which permitted the withdrawing of all the supporting ribs and pillars of a coal mine and the consequent subsidence of the soil. Now, though in our opinion, the contract cannot in itself be so construed as to warrant a withdrawal of all surface support, yet if the custom contended for be established, it follows, that, in the absence of any provision to the contrary, it must govern and interpret the agreement of the parties, as it would be presumed they acted with reference to such custom in framing their compact. But the learned judge, who tried this case in the Common Pleas, refused to recognise any such custom; in this we think he was right. This identical point was raised in the case of Jones v. Wagner, 16 P. F. Smith 429, where it was held, that of common right the mining right was servient to the surface to the extent of sufficient supports to sustain it, and that there could be no custom to the contrary. The reason given for this conclusion was that the business of mining in the western part of the state was of a date too recent to give such a custom the age necessary for its validity. We are willing however to go-one step further and say, that the alleged usage lacks another essential feature of a good custom, and that is reasonableness. It is not reasonable that that which the law grants as of common right should, not merely be modified, but abi’ogated by custom or usage. When A. grants to B. a tract of land reserving the minerals under it, the legal presumption is that B. shall have and enjoy the exclusive and uninterrupted use of the surface, but if A. may, notwithstanding, under the plea of some general custom, dig out the foundations of the land and let down the surface, or render it so dangerous that it cannot be used, it is clear that he may thus destroy his own grant and invalidate the rights with which the law clothes his own vendee.
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Mr. Justice Gordon
delivered the opinion of the court, January 6 th 1876.
The rights of both the plaintiffs and defendants, who hold adjacent coal fields, are derived from a common grantor, James H. Hays. The title of the defendants ante-dates that of the plaintiffs, hence, it is not controverted but that any right or privilege, directly conferred, by the deed or articles of Hays to the vendors of the former, or which, by necessary construction or implication, arises therefrom, must dominate any conflicting right or privilege found in the conveyance to the plaintiffs. They must take subject to the precedent grant. If, then, the defendants, Horner, Wood & Co., had the right under their contract to withdraw all the coal found within their grant, without leaving any ribs, pillars or other supports to sustain the surface, it is clear that the subsequent vendees of the adjoining tract took subject to such right, and of the consequent falling in of the superincumbent land, and the intrusion of surface water into their works, they cannot complain. The whole question, which we are required to consider, is raised from that part of the charge of the learned judge of the court below, wherein, after stating that the owner of a mine has a right to mine his coal in an ordinary way so long as that does no injury more than what necessarily arises from the removal of the coal, and that he would not be liable for the collection and flow, by reason of such mining, of subterranean water upon lower mines, he adds : “ But otherwise where mining is done in such a manner (whether the ordinary way or not) as to introduce foreign water from the surface or higher land, by reason of the roof falling in and thus introducing water from the surface which would not have flowed in if the roof of the mines had remained undisturbed and compact after the coal was removed.” This was responsive to the [248] defendants’ second point, which was negatived, which required the court to charge that the defendants were not liable for the introduction of such surface water, if not occasioned by the wilful and wanton acts of the defendants, but was a necessary consequence of their mining according to the “ approved, established and customary course and practice of mining in this region, and without any negligence in the operation of mining.” The defendants thus endeavored to put themselves upon an alleged custom of the country which permitted the withdrawing of all the supporting ribs and pillars of a coal mine and the consequent subsidence of the soil. Now, though in our opinion, the contract cannot in itself be so construed as to warrant a withdrawal of all surface support, yet if the custom contended for be established, it follows, that, in the absence of any provision to the contrary, it must govern and interpret the agreement of the parties, as it would be presumed they acted with reference to such custom in framing their compact. But the learned judge, who tried this case in the Common Pleas, refused to recognise any such custom; in this we think he was right. This identical point was raised in the case of Jones v. Wagner, 16 P. F. Smith 429, where it was held, that of common right the mining right was servient to the surface to the extent of sufficient supports to sustain it, and that there could be no custom to the contrary. The reason given for this conclusion was that the business of mining in the western part of the state was of a date too recent to give such a custom the age necessary for its validity. We are willing however to go-one step further and say, that the alleged usage lacks another essential feature of a good custom, and that is reasonableness. It is not reasonable that that which the law grants as of common right should, not merely be modified, but abi’ogated by custom or usage. When A. grants to B. a tract of land reserving the minerals under it, the legal presumption is that B. shall have and enjoy the exclusive and uninterrupted use of the surface, but if A. may, notwithstanding, under the plea of some general custom, dig out the foundations of the land and let down the surface, or render it so dangerous that it cannot be used, it is clear that he may thus destroy his own grant and invalidate the rights with which the law clothes his own vendee.
This court, in Jones v. Wagner, adopted the English decisions upon this subject, and as these decisions embody an experience in the business of mining much greater than our own, they are entitled to the greatest respect. So when we consider the super-eminent importance of this industry to the British Isles, we may be sure that the judiciary thereof would not wittingly deprive it of any of its just rights or privileges. Turning then to these decisions, we everywhere find that the plea of a custom which would warrant the withdrawal of a proper support to surface land, is treated as unreasonable and invalid. And first, with reference to the con[249] struction of a contract such as that now under consideration, we have in the case of Harris v. Ryding, 5 M. & W. 60, a judicial exposition in point. In that case there was a grant of the surface with a reservation in the strongest possible terms of all and every part of the mines and minerals in the land. It was held, however, that the grantor could not withdraw all the coals without leaving a proper support for the surface ; Baron Parke observing that by reasonable intendment, under the reservation, the grantor could only be entitled to so much of the mines below as would be consistent with the proper enjoyment of the surface. On the question of the validity of a custom tending to affect such intendment, we have first the case of Hilton v. Lord Granville, 5 Ad. & El. (N. S.) 701. The declaration was in ease, charging that the defendant dug his mines so near the plaintiff’s premises as to crack the ground, &c. The defendant pleaded a prescription to take the coals under any messuages, buildings or lands in the manor, and without liability for damages that might occur in consequence of the taking thereof. Held, that such a prescription was void because unreasonable, and that a custom similarly pleaded was void for the same reason ; the objection being equally fatal to both. For a precedent for holding such custom bad, reference was had to the opinion of Willes, O. J., in Broadbent v. Wilks, Willes 360, in which it is said that the true objection to the custom pleaded was that it was uncertain and unreasonable — as it might deprive the tenant of the whole benefit of his land. Lord Den-man, C. J., adds, that, a claim destructive of the subject-matter of the supposed grant cannot be set up by any usage, “and that the prescription or custom here pleaded has this destructive effect and is so repugnant and void, appears to us too clear from the single statement to admit of illustration by argument.” Not less destructive to the grantor’s reserved rights would be the custom set up in the case in hand, for not only would it defeat any use which he might otherwise have of the reserved surface, but by introducing surface water, would be destructive of his adjacent mines. The next case to which we make reference is that of Humphries v. Brogden, 12 Ad. & El. (N. S.) 739. The plaintiff charged in his narr. that the defendant carelessly, &c., and without leaving any pillars or supports, and contrary to the custom of the country, in that behalf, so worked his mines as to crack open and to cause to subside the soil, &c. The plea was not guilty. The jury found the defendant had worked carefully and according to the custom of the country, but without leaving sufficient pillars or supports. A verdict was entered for the plaintiff for llOi. damages, with leave to move to enter a verdict for the defendant if the court should be of the opinion that, under these circumstances, the action was not maintainable. Held, the plaintiff was, on this finding, entitled to judgment; for that of common right, the owner of the surface is [250] entitled to support from the subjacent strata. In delivering the opinion of the court, Lord Campbell, C. J., says: that if the owner of two adjacent closes should alien one of them, his alienee, without a grant to that effect, is entitled to lateral support eo instante the deed is executed as much as after twenty years or any longer period, and that pari rations, where there are separate freeholds of the surface land and the mineral, the former is entitled to support from the subjacent strata. For if this be not as, the surface cannot be securely enjoyed as property, and that circumstances are conceivable, as the great thickness of the minerals and their proximity to the surface, under which it would be rendered wholly worthless. He then comes to the conclusion that the rule, giving the right of support to the surface upon the minerals, in the absence of any express grant, reservation or covenant must be laid down generally without reference to the nature of the strata or the difficulty of propping up the surface or the comparative value of surface and mineral. The learned justice further adds : that he is not aware of any principle upon which qualifications could be added to the rule, and that an attempt to introduce them would lead to uncertainty and litigation. The case of Hilton v. Lord Granville was cited and approved as sustaining the doctrine that the custom therein contended for was void because unreasonable. The last case we have upon this subject is that of Blackett v. Bradley, 1 B. & S. 940.
In answer to the charge that they had wrongfully and without reaving proper supports, so worked their mines under the plaintiff’s land as to cause it to fall in, the defendants pleaded title to the mines, under the said land, by virtue of the enclosure act, and, further, that from time immemorial up to the framing of said act, the lord of the manor and his assigns had been used and accustomed, as cf right, to search for, win and work the mines under the commons without leaving any support for the lands under which the said were situate, &c., and that from the time of the passing of the act the mines had been so worked without leaving any support, and that the defendants worked the mines under a lease thereof from the lord. On demurrer, it was held that the plea was bad; such a prescription having been held invalid in Hilton v. The Earl of Granville, 5 Q. B. 701. Wightman, J., said, during the argument of the demurrer to the fourth plea, which was framed under the Act of 2 & 8 W. 4, eh. 71, shortening the period of prescription: “ If the custom is bad it cannot be made better under Lord Tenterden’s Act.” The whole case was finally disposed of on the authority of the case last above cited; Cockburn, O. J., remarking, that though some of the reasoning in that case had been overruled in the House of Lords in Rowbotham v. Wilson, yet the decision itself remained unaffected.
These authorities, then, teach us that in whatever shape the plea [251] for destruction of the surface right may come, whether as a prescription or custom, it is bad as tending to defeat the original grant. A distinction has been attempted between a grant of the surface by the owner of the whole fee, and a reservation thereof in his own favor as implied from the conveyance of the minerals alone. But this distinction is not sound. The right of support is ex jure naturae, hence, as no doubt can arise as to its character, it cannot come within the category of those ambiguities which must be construed most favorably for the grantee and most strongly against the grantor. So the very point is met in Jones v. Wagner, by a citation from Rogers on Mining, p. 455, where it is said: “If an owner of lands grant a lease of the minerals beneath the surface with a power to work and get them in the most general terms, still the lessee must leave a reasonable support for the surface.”
In conclusion we may say that we have carefully examined the article of agreement between James H. Hays and Horner and Hyatt, and find nothing therein contained which would take them out of the rule above stated, and that on the whole case we consider the rulings in the court below unexceptionable. '
The judgment is afiirmed.
Williams and Mercur, JJ., dissent.