Opinion by
Mb. Justice Dean,
This is an ejectment which plaintiff brings to recover possession of the coal underlying 164 acres and fifty-two perches of land in Green county. Both parties trace title to the same source, one Simon R. Huss to whom a larger tract of 275 acres including the land in dispute was conveyed by deeds from the heirs of John Leonard deceased in the year 1854. These deeds from the heirs of John Leonard to Huss put in Huss the ab*155solute estate in the land without reservation or restriction. Then Huss on August 5, 1859, conveyed by deed duly recorded to William Ingham an undivided interest in the whole tract which whole tract afterwards by a parol partition they divided between them, Huss retaining the 164 acres and fifty-two perches under which lies the coal now in dispute. From 1859, when Huss took title, he remained in possession of his part until November 11, 1861, when he conveyed it by deed joined by his wife to Richard Long, which deed was duly recorded December 5, 1866. It was well known to Huss while he owned the land and to others, that an upper vein of coal, called the Waynes burg vein, underlaid the land. While it was suspected that the Pittsburg vein was beneath this its existence had not at that time been proven by any actual tests. In the deed from Huss to Long is this reservation: “ And it is further covenanted and agreed that this deed does not convey any right title or interest to the party of the second part in coal or coal lands situated beneath the said property, but that the said parties of the first part shall still hold possession of said coal banks with the right of mining the same, and the right of way to said coal banks, the same as if this deed had never been executed, the first part has no privilege of selling coal at the banks.”
This, as the learned judge of the court below correctly held, was a complete severance of the coal from the surface. While at the date of this deed 1859, the power to separate land horizontally into two or more estates by deed was not generally recognized and acted upon by the profession, although the power had long been settled in England as well as the construction to be given the instruments of severance, yet just about the date of this deed October, 1858, this court held in Caldwell v. Fulton, 31 Pa. 475" court="Pa." date_filed="1858-07-01" href="https://app.midpage.ai/document/caldwell-v-fulton-6230700?utm_source=webapp" opinion_id="6230700">31 Pa. 475 : “ Coal and minerals in place are land. It is no longer to be doubted that they are subject to conveyance as such.” The tendency had been in many cases theretofore, to twist the right to the mineral into an incorporeal hereditament, a right issuing out of the land, instead of the land itself. In about a year afterwards, this case was followed by Caldwell v. Copeland, 37 Pa. 427" court="Pa." date_filed="1861-01-07" href="https://app.midpage.ai/document/caldwell-v-copeland-6231339?utm_source=webapp" opinion_id="6231339">37 Pa. 427, in which was said: “ Mines are land and subject to the same laws of possession and conveyance.” This has been the settled law consistently followed by us since. When then, *156Huss took his deed from Leonard’s heirs he took an absolute estate in fee simple in the land extending indefinitely downwards as well as upwards. When he made his deed to Long, by the reservation, he severed his estate horizontally, he did not convey the coal which he continued to hold under the Leonard deed, he did convey the surface to Long and that was his no longer; but the coal was his land thereafter just as much so as the surface was Long’s land. He could no more be divested of any right or title to this substratum of land than Long could be divested of his superstratum, the surface. Notorious hostile possession kept up for twenty-one years against either would give title to an intruder; but no permissive intrusion no mere unresented occasional trespasses would affect the stability of the title of either.
These are the general principles which should have governed the court and jury in the trial of the issue in the court below. Were they adhered to? Appellant has preferred twenty-four assignments of error, many of them, in substance, to the charge of the court. We shall content ourselves with only noticing those which in our opinion are decisive of the issue. Bearing in mind then, on the general legal principles governing the rights of owners to the under stratum of coal land, Huss, when he conveyed to Long on November 11, 1861, had the undoubted title to this estate and carefully reserved it, so that it was not affected by that deed; did he afterwards, in the interval between that date and March 2, 1900, when he conveyed to this plaintiff omit to do something he ought to have done or do something he ought not to have done by which his right to possession of his laud has been divested ?
In their seventh written point defendants requested the court to instruct the jury that: “ The occupation of real estate for twenty-one years, in an open, visible, notorious, exclusive, continuous and hostile manner creates an indefeasible title and against the holder of the legal title and against all other persons making claim thereto who are not under legal disabilities.” Answer : Affirmed. This in the abstract was not error, but it was followed immediately by affirmative instructions on defendants’ eighth point. The defendants called one John H. Hoge as a witness, a man past sixty-eight years of age and of exceedingly infirm memory,- who said he had known Simon R. *157Iiuss -when he lived, in Green county, but did not remember when he moved away; was acquainted with Richard Long in his lifetime; did not remember when he died; was acquainted with Abijah Huss, deceased, but did not remember when he died; whether before or after Long; he could not fix within four years the date that Long bought from Simon Huss, but knew Long sold to Abijah Huss about 149 acres of the same land. Then defendants offered to prove by the witness that he wrote an article of agreement between Long and Abijah Huss for the sale of this 149 acres; that Simon R. Huss was present and signed the agreement as a witness, yet made no objection that his reservation in the deed to Long was not kept up in Long’s agreement with Abijah Huss. The witness said he did not remember any reservation such as appeared in the deed was put in the article; in fact his memory was so impaired that he remembered only that. Simon R. Huss had signed the agreement as a witness and that the parties talked about it but what was said he did not remember. The agreement itself was not produced, whether lost or destroyed by them did not appear. This eighth point asked the court to say to the jury that if Simon R. Huss was present as a witness at the execution of this agreement without objection at the absence of the reservation in his deed to Long, it would estop him and the plaintiff who claimed under him from claiming title to the coal. This point was affirmed if the jury found the facts as set out in the point. There was no evidence which warranted the jury in finding that Simon R. Huss said anything whatever at the time the agreement was signed which would in the least prejudice his title ; for all that appeared his reservation in his deed may have been noted in the agreement. He said not a word to Abijah Huss to mislead him; the latter may have said to Simon then and there that he knew all about the reservation. Besides, Simon R. Huss’ deed was in Long’s, the vendor’s, possession containing full notice to his vendee of its existence and he, Abijah, would be presumed to know this when he purchased from Long, Simon’s grantee. The only testimony that is set up tending to show an estoppel, is the alleged misleading silence of Simon R. when he ought to have spoken. It is vague, so vague that it ought to have been rejected, or after it got in under objection ought to have been withdrawn by the court.
*158The subject of the ninth point arises out of this testimony: Simon R. Huss in 1875, just a day or two before he left Green county for Iowa, met on the public road William Rinehart, who testified that Huss said to him, “ All he had left in Green county was that lot and Sol. Gordon claimed it.” This was offered as also tending to show an estoppel and as showing an abandonment of the estate reserved in the deed to Long. This in connection with the fact that Huss had exercised no acts of ownership over the property during his absence in Iowa, paid no taxes on it, that the owners of the surface during the intervening years had taken out coal when they so desired, not only showed abandonment by Huss, but, according to the facts stated in the defendants’ eighth point, established for defendants a title under the statute of limitations. As to the plea of the statute, no inference of abandonment can be drawn in favor of defendants from the absence- of Huss in Iowa. He removed to Iowa in 1875, bought property and made his home there. It would be highly improbable, that he would at that distance give his personal attention to 164 acres of coal he owned in the state of Pennsylvania. Another landed estate, the surface, was on top of his, not any large part of the lower estate could be dug and hauled away by trespassers. His first act of ownership over it would probably be just what it was here, the sale of it. There was not in all these years, so far as we can find from the evidence, a distinct act by the surface owner hostile to his title under the reservation in his deed. Farmers and others at fitful intervals went upon the land, took away some wagon loads of coal; some of these testified that they had verbal privilege from Huss to do so. The coal banks were scattered, some six or seven over the tract; no one of them was continuously operated; occasionally a surface owner or one not a surface owner dug and sold small quantities, but the quantity in no instance was large. Adverse possession of a coal estate must be actual, as distinguished from constructive. We have carefully perused the testimony and it wholly fails to show an open, visible, notorious, exclusive and hostile occupation of the coal land for a period of twenty-one years.
As to neglect to pay taxes by the owner, that has never been held to give title to a trespasser; if there be color of title in a *159hostile claimant, that fact in connection with others will aid in establishing his claim. But there was no color of title in the surface owner; his very deed under which he claimed, negatived any title to the coal. Besides, the presumption is the taxes were paid. The law authorizes the assessment and taxation of the mineral separately from the surface; the taxes were assessed against the land alone as a whole and the owners of the two estates might have adjusted with each other their respective shares; but they did not. If they did not the county officers neglected their duty in not separating the assessment and collection of the taxes. Evidence against objection of plaintiff was admitted, that in 1886 the land was sold at sheriff’s sale on an execution against William Wallace a then owner of the surface; that neither Huss nor anyone for him appeared at the sale or gave notice to bidders that he was the owner of the reserved coal. Simon R. Huss the owner testified by deposition that he never had abandoned the coal laud reserved, that he took out coal from the land for a long time after he had sold the surface and nobody ever made any objection. A careful comparison of the testimony of defendants’ numerous witnesses with Huss’ own testimony really shows no contradiction. The substance of all the testimony of all defendants’ witnesses as to the fact of abandonment may be summed up in the answer of William Rinehart to the question as to whether the owners of the land operated the mines and sold the coal; the answer was: “ The whole country hauled coal away from there in the fall.”
And this was the nature of the trespass: the vein was a small one near the surface not averaging over two feet in height; the mining in all the drifts was only a few feet from daylight; the coal was dug, shoveled on a wheelbarrow and loaded on a common wagon by the farmers and those in the neighborhood, who in the fall made full provision for the winter. There was no persistent continuence in the mining business at a single one of the several shallow banks; the owner of the surface exercised no exclusive ownership over the mining; not a single mine rail was laid, not a single mine oar put in any bank. To hold this adverse is a perversion of every definition of adverse possession such as is necessary to give title to a trespasser under the statute of limitations. The *160best that can be said of it is, that at intervals during the year it was an open, visible trespass; and this was not exclusively confined only to the owner of the surface. It was not a continuous possession by even him for there was no possession of the coal during the summer months. There was, so far as appears, no really hostile possession by the owner of the surface under a defiant claim of right. Such adverse ownership as this would not have divested the real owner whose title was of-public record if the periodical trespass had run over a century. We are of opinion the learned trial judge erred in submitting this evidence to the jury and instructing them that if they believed it, it showed abandonment or that it sustained the plea of the statute. But under the verdict, which is a general one, it divests the plaintiff of all the coal under the surface on that tract. Adjacent explorations have made it probable that under this Waynesburg seam is the Pittsburg seam, a much more valuable one. By the reservation Huss claimed title to all the coal and coal banks beneath the property; explorations long within the statutory period have pretty certainly demonstrated the existence of the Pittsburg seam; Huss when he made his reservation did not probably know of this seam. There is no evidence that even the scrambling possession of defendants touched this coal; even if the instructions had been correct as to the Waynesburg seam, the evidence wholly fails to sustain the verdict as to' the Pittsburg seam.
But this evidence of abandonment and hostile possession was submitted to the jury under the seventh, eighth and ninth points along with the testimony claimed to show an estoppel by matter in pais. It is an established legal maxim that: “ He that does not speak when he ought to speak will not be heard when he ought to keep silent.” We have already spoken of Hoge’s testimony as to what took place when an agreement was made between Long, Simon R. Huss’ vendee, and Abijah Huss the vendee of Long. It was entirely too vague; the jury could not find from it as a fact, that Simon did not then speak of his reservation or that Abijah did not then know of it. But defendants rely further upon the testimony of William Rinehart of Simon R. Huss’s declaration to him, as showing an estoppel. These are Rinehart’s words: “We were down in the road and were talking a day or two before he went West, *161along by the five-acre lot, and he said that all he had left in Green county was that lot and Solomon Gordon claimed it.” Rinehart the witness, five years afterwards purchased from the fourth vendee from Huss about seventeen acres of the coal reserved. It is claimed that this declaration estops Huss or his vendee from claiming this coal. It is argued that then was IIuss’ time to speak, and as he did not do so he and his vendee must now keep silent. It will be noticed that this was a casual conversation on the road; Rinehart did not say to Huss he was about to buy part of the land he had sold to Long, in fact he did not purchase it until five years after-wards, long after Huss’ reservation was a public record. What duty on Huss was there to speak to Rinehart? Was he bound to tell him that he conveyed the 164 acres to Long but had reserved the coal ? At that time it was no concern of Rinehart’s. When it did concern him years afterwards there was IIuss’ deed of record which in unmistakable terms proclaimed he did own the coal. “ Silence works no estoppel unless it misleads another to his injury: ” Hill v. Epley, 81 Pa. 881. Besides, the words do not import a disclaimer of ownership of the coal; they were talking along by the five-acre lot, five acres of surface which Gordon claimed ; he may well have been referring to land which was visible, not coal under the surface. No estoppel is to be raised from inference or argument. To make these words an estoppel we must resort to a by no means obvious inference: Com. v. Moltz, 10 Pa. 527" court="Pa." date_filed="1849-06-18" href="https://app.midpage.ai/document/commonwealth-v-moltz-6228301?utm_source=webapp" opinion_id="6228301">10 Pa. 527; Thompson’s Appeal, 126 Pa. 367" court="Pa." date_filed="1889-05-13" href="https://app.midpage.ai/document/thompson-v-thompson-6239359?utm_source=webapp" opinion_id="6239359">126 Pa. 367. We are of the opinion that this testimony in no fair view creates or even tends to prove an estoppel.
The plaintiff has a clear and most undoubted legal title to her estate; for many years it has been spread upon a prrblic record to be read and seen by all who had any interest in knowing what it was. It would be a gross wrong to her to allow it to be destroyed by insufficient evidence. To preserve such a title the law does not require physical possession by the owner, that he should live in a coal mine. He has that constructive possession which the law declares his deed gives him and that under the facts of the case is enough. The judgment is reversed.