Berkshire, President.
The only question presented by the record for our com • [565]*565sideration, is the construction of the deed from the heirs of Jonathan Zane to John Dulty, of the 12th of January, 1826,
As derivative purchasers under this deed, the appellauts claim the coal in controversy. ■ The appellees claim their right to it, as derivative purchasers, under the deed of the 28th of January, 1826, from Ezekiel Hildreth and wife, to John McLure and others.
Both parties claim title under Jonathan Zane, the original owner of the land, covering and embracing the coal now in dispute. It is conceded that the appellants have regularly derived their right, (whatever it may be), from the grantees, in the deed first named, and that the appellees have in like manner, derived their title to the land in fee simple, under which said coal is located, from the grantees in the latter deed.
The appellants contend that, the deed under which they claim, conveyed a corporeal hereditament and the absolute properdin the coal; while on the other hand, it is insisted by the appellees, that an incorporeal hereditament, or license to dig coal only, was conveyed, and that, consequently, an equal right and privilege to dig was reserved by the deed to the grantors therein; which right and privilege passed with the land, and vested in them by the several conveyances under which they claim. The appellees, in support of their right, rely on Lord Mountjoy’s case, 1 Thomas’ Co. Litt., 688, (but reported, it is said, Godbolt 17,) Chetham v. Williams and others, 4 East, 468-9; Doe v. Ward, 2 Barn. & Ald.; (4 English Common Law Reports, 719.) Johnstown Iron Co., v. The Cambria Iron Co., 32 Penn. Reports, 241; and Gillett v. Tregarza, 6 Wisconsin Reports, 343; and insist that this ease belongs to the class of cases just cited, and that consequently the deed ought to receive a like construction.
On the other hand, the appellants rely on the terms of the deed, under which they claim, and the case of Caldwell v. Fulton, 31 Penn. Reports, 475, and maiutain that this case in every essential respect, is like the case of Caldwell v. Fulton, [566]*566and must, therefore, be governed by the principles of that case, iu the interpretation of said deed.
After a careful review of all the authorities cited and relied on, my conclusion is, that the doctrine affirmed in the case of Caldwell v. Fulton, is founded in obvious reason, and is peculiarly appropriate to the present age, and the condition, business, and especially the mining and manufacturing interests of this country; and I fully concur in the cogent and conclusive reasoning, by which the eminent judges who delivered the opinions of the court, sustained and fortified their conclusions. If, therefore, the deed in the case now under review, imports as much as the deed in that case, it must, in my judgment, receive the.same construction.
The deed in that case was from James Caldwell, then the owner of the locus in quo, to George Greer. It was for a small tract of sixteen acres of land, described by metes and bounds, and after giving the boundary, the grant of the coal right follows, thus: “Also,the full right, title and privilege of digging and taking away stoneeoal to any extent the said George Greer may think proper to do, or cause to be done, under any of the lands now owned by the said James Caldwell; provided, nevertheless, the entrance thereto, and the discharge therefrom, be on the before described premises.”
The case was first before the supreme court of Pennsylvania, in 1855, and is reported in 7 Casey. The opinion of the court was then delivered by "Woodward, J. It was af-terwards brought under review upon a re-argument, before the same court, and the opinion of the court, delivered by Strong, J., and the case is now reported in 81 Penn., before cited.
It was insisted in that case, by the parties claiming under Caldwell, the grantor, as it is claimed to be the case by the appellees here, that the deed granted only a mere license or liberty to dig for the coal, leaving in the grantor a concurrent right to do likewise. On the other hand it was maintained by the claimants, under Greer, the grantee, that [567]*567the deed conveyed the absolute 'property in the coal, reserving no interest or right in the grantor whatever. The court, after full consideration, and upon an elaborate and exhaustive re-argument, adopted the latter view, and sustained the rights of the claimants under the grantees of Greer. In each of the very lucid opinions delivered by the eminent judges, who pronounced the opinions of the court, Lord Mountjoys’s case, and the other authorities, cited by the appellees here, were ably reviewed, and while approved as sound law, they were shown to be clearly distinguishable from the case of Caldwell v. Fulton. And it was accordingly held that, while the grant in the former cases conferred on the grantees a license or privilege only to dig for the minerals in common with the grantors, the grant in the latter case was total and exclusive, and vested the entire property in the coal, in the grantees.
The material question, therefore, recurs: Is the grant in the case of Caldwell v. Fulton, larger or more comprehensive than the grant in the deed now under consideration? In my judgment it is not. If not strictly identical the resemblance between the two cases, in all their material facts, appears to me to be so complete, that it would seem very difficult to suggest any material variance.
In this case, as in that, the grant is general. The grantee was to take ad libitum, without restriction or reservation. And it is not seen how he could be restrained by the grantors, or what could have prevented him from opening, at once, a mine on every available part of the boundary designated in the grant to the exclusion of the grantors.
The rights of the grantees here would not be enlarged by the addition of the terms, “to any extent the grantee may think proper,” &c., which were superadded to the grant, in the case of Caldwell v. Fulton, that is clearly implied in the general grant; and it seems to me the grantors, and those claiming under them, could not be heard to gainsay the right of the grantee, and those claiming under him, to dig the coal, within the designated boundary, to any extent they [568]*568might desire, their wishes, as in Caldwell v. Fulton, being the measure of their rights in the premises, which rights, as in that case, are unlimited as to “ quantity, time, person or purpose.” Again: The rights of the grantee in this case, as in that, were assured to him by all the solemnities of a regular conveyance.
In that case, as we have seen, the conveyance was for a small tract of land of sixteen acres, (including the surface and the coal under it,) together with the right to dig and take away the coal under certain lands adjoining it. Here the conveyance is of a small tract of about eight acres, with the right to dig the coal under a certain boundary of land, also owned by the grantors, adjoining the eight acres conveyed absolutely.
In the construction of this deed, therefore, it must be observed that the same terms that are employed to denote a fee simple
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Berkshire, President.
The only question presented by the record for our com • [565]*565sideration, is the construction of the deed from the heirs of Jonathan Zane to John Dulty, of the 12th of January, 1826,
As derivative purchasers under this deed, the appellauts claim the coal in controversy. ■ The appellees claim their right to it, as derivative purchasers, under the deed of the 28th of January, 1826, from Ezekiel Hildreth and wife, to John McLure and others.
Both parties claim title under Jonathan Zane, the original owner of the land, covering and embracing the coal now in dispute. It is conceded that the appellants have regularly derived their right, (whatever it may be), from the grantees, in the deed first named, and that the appellees have in like manner, derived their title to the land in fee simple, under which said coal is located, from the grantees in the latter deed.
The appellants contend that, the deed under which they claim, conveyed a corporeal hereditament and the absolute properdin the coal; while on the other hand, it is insisted by the appellees, that an incorporeal hereditament, or license to dig coal only, was conveyed, and that, consequently, an equal right and privilege to dig was reserved by the deed to the grantors therein; which right and privilege passed with the land, and vested in them by the several conveyances under which they claim. The appellees, in support of their right, rely on Lord Mountjoy’s case, 1 Thomas’ Co. Litt., 688, (but reported, it is said, Godbolt 17,) Chetham v. Williams and others, 4 East, 468-9; Doe v. Ward, 2 Barn. & Ald.; (4 English Common Law Reports, 719.) Johnstown Iron Co., v. The Cambria Iron Co., 32 Penn. Reports, 241; and Gillett v. Tregarza, 6 Wisconsin Reports, 343; and insist that this ease belongs to the class of cases just cited, and that consequently the deed ought to receive a like construction.
On the other hand, the appellants rely on the terms of the deed, under which they claim, and the case of Caldwell v. Fulton, 31 Penn. Reports, 475, and maiutain that this case in every essential respect, is like the case of Caldwell v. Fulton, [566]*566and must, therefore, be governed by the principles of that case, iu the interpretation of said deed.
After a careful review of all the authorities cited and relied on, my conclusion is, that the doctrine affirmed in the case of Caldwell v. Fulton, is founded in obvious reason, and is peculiarly appropriate to the present age, and the condition, business, and especially the mining and manufacturing interests of this country; and I fully concur in the cogent and conclusive reasoning, by which the eminent judges who delivered the opinions of the court, sustained and fortified their conclusions. If, therefore, the deed in the case now under review, imports as much as the deed in that case, it must, in my judgment, receive the.same construction.
The deed in that case was from James Caldwell, then the owner of the locus in quo, to George Greer. It was for a small tract of sixteen acres of land, described by metes and bounds, and after giving the boundary, the grant of the coal right follows, thus: “Also,the full right, title and privilege of digging and taking away stoneeoal to any extent the said George Greer may think proper to do, or cause to be done, under any of the lands now owned by the said James Caldwell; provided, nevertheless, the entrance thereto, and the discharge therefrom, be on the before described premises.”
The case was first before the supreme court of Pennsylvania, in 1855, and is reported in 7 Casey. The opinion of the court was then delivered by "Woodward, J. It was af-terwards brought under review upon a re-argument, before the same court, and the opinion of the court, delivered by Strong, J., and the case is now reported in 81 Penn., before cited.
It was insisted in that case, by the parties claiming under Caldwell, the grantor, as it is claimed to be the case by the appellees here, that the deed granted only a mere license or liberty to dig for the coal, leaving in the grantor a concurrent right to do likewise. On the other hand it was maintained by the claimants, under Greer, the grantee, that [567]*567the deed conveyed the absolute 'property in the coal, reserving no interest or right in the grantor whatever. The court, after full consideration, and upon an elaborate and exhaustive re-argument, adopted the latter view, and sustained the rights of the claimants under the grantees of Greer. In each of the very lucid opinions delivered by the eminent judges, who pronounced the opinions of the court, Lord Mountjoys’s case, and the other authorities, cited by the appellees here, were ably reviewed, and while approved as sound law, they were shown to be clearly distinguishable from the case of Caldwell v. Fulton. And it was accordingly held that, while the grant in the former cases conferred on the grantees a license or privilege only to dig for the minerals in common with the grantors, the grant in the latter case was total and exclusive, and vested the entire property in the coal, in the grantees.
The material question, therefore, recurs: Is the grant in the case of Caldwell v. Fulton, larger or more comprehensive than the grant in the deed now under consideration? In my judgment it is not. If not strictly identical the resemblance between the two cases, in all their material facts, appears to me to be so complete, that it would seem very difficult to suggest any material variance.
In this case, as in that, the grant is general. The grantee was to take ad libitum, without restriction or reservation. And it is not seen how he could be restrained by the grantors, or what could have prevented him from opening, at once, a mine on every available part of the boundary designated in the grant to the exclusion of the grantors.
The rights of the grantees here would not be enlarged by the addition of the terms, “to any extent the grantee may think proper,” &c., which were superadded to the grant, in the case of Caldwell v. Fulton, that is clearly implied in the general grant; and it seems to me the grantors, and those claiming under them, could not be heard to gainsay the right of the grantee, and those claiming under him, to dig the coal, within the designated boundary, to any extent they [568]*568might desire, their wishes, as in Caldwell v. Fulton, being the measure of their rights in the premises, which rights, as in that case, are unlimited as to “ quantity, time, person or purpose.” Again: The rights of the grantee in this case, as in that, were assured to him by all the solemnities of a regular conveyance.
In that case, as we have seen, the conveyance was for a small tract of land of sixteen acres, (including the surface and the coal under it,) together with the right to dig and take away the coal under certain lands adjoining it. Here the conveyance is of a small tract of about eight acres, with the right to dig the coal under a certain boundary of land, also owned by the grantors, adjoining the eight acres conveyed absolutely.
In the construction of this deed, therefore, it must be observed that the same terms that are employed to denote a fee simple estate in the eight acres, apply equally to the grant of the right to the coal, and there is certainly nothing in the deed that would imply that a less estate was intended to be granted, and it is, therefore, I think, within the purview and spirit of the statute. 1. Rev. Code, s. 27, p. 369, in force at the time thereof. In the habendum, or granting part, the language is, that the grantors “ do grant, bargain, sell and convey unto the said John Dulty, his heirs and'assigns,” &c., (and after describing the eight acre fract by metes and bounds;) “ also, the light of digging for coal under the adjoining land lying east of the said lot or parcel of ground,” &c., (and after setting on the boundary,) “together with all and singular the tenements, hereditaments, and appurtenances to the said lot or parcel of ground belonging, with the right of digging for coal, as aforesaid.” In the tenendumthe words are “ to have and to hold the said lot or parcel of ground, together,” &c., “ with the right of digging for coal, as aforesaid, unto the said John Dulty, his heirs and assigns forever, to the only proper use and behoof of him, the said John Dulty, his heirs and assigns forever.” And in the warranty clause of the deed, not only the eight [569]*569acre tract, blit the right to the coal as well, is expressly warranted to the grantee, Dulty, and his heirs and assigns, against the rights or claims of all persons whatsoever, the grantors, and all persons claiming under them being, as I think,.necessarily included. Looking to the face of the deed, therefore, it appears to me, it may be clearly implied, that the grantors intended to grant the fee simple or absolute property in the coal, as well as in the eight acre lot, so conveyed in terms; and the implication is certainly not rebutted by anything found in the record, but on the contrary, is rather confirmed, by the long acquiesence in the right of the grantee, and those claiming under him, by the grantors, and those claiming under them.
The case of The Johnstown Iron Co. v. The Cambria Iron Co., 32 Penn. R., 241, was decided by the same court that had decided Caldwell v. Fulton, and the opinion of the court was alse delivered by Woodward, J. The case was distinguished from Caldwell v. Fulton, and it was held that it belonged to the other class of cases reviewed in that case.
It was argued by the counsel for the appellees, that each of the parties, in this case, have the right to dig for the coal in controversy; but that neither party has any ownership or property in the coal itself, but simply a license to dig for the coal. I realize much difficulty in perceiving how the learned counsel could make good his proposition. It is conceded that the absolute property in the coal was in the original grantors, (Jonathan Zane’s heirs,) before and at the time of the conveyance to Dulty. It must be clear, therefore, that it was either divested by such conveyance, or it remained in the grantors. If divested, as I think it was, it is equally clear it must have vested in the grantee, Dulty. It could not be destroyed! It cannot be, I take it, that the fee in the coal was thereby cut loose, and sent adrift; and became from thenceforth, (if the term may be allowed,) a mere waif without an owner!
It was further suggested by the same counsel, that the right of the parties to the coal in dispute, (on their theory,) [570]*570is incapable of partition or judicial interpretation; and as the proper limitations to such rights could not be indicated or fixed by a court of equity, on a bill for that purpose, the parties should be left to the enjoyment of their respective rights, as best they might, according to their own arrangements. But do not the very difiiculties suggested rather furnish a persuasive argument against the construction contended for? Ought a construction which would vest in parties rights that would be incapable of being defined or settled by a legal process, and which must consequently lead (as the sequel to this case would show) to perpetual conflict and confusion without any possibility of being adjusted by any legal proceedings, to bo adopted, while any other rational interpretation could be given to the deed or instrument creating such rights? It appears to me not, and that the construction which I have been compelled to adopt of the deed in this case, is the only reasonable one that can be given to it.
My conclusion therefore is, that the decree complained of is erroneous, and ought to be reversed, with costs to the appellants here, and in the circuit court, and the injunction perpetuated.
The other Judges concurred.
Deoree reversed.