Robertson v. Youghiogheny River Coal Co.
33 A. 706
Pa.
1896
Check Treatment

Opinion by

Mr. Justice Williams,

Our legal responsibilities grow out of the relations we sustain to each other. If it were possible for us to live in a state of absolute independence of all other persons, it would be possible for us to do as we pleased with our own without considering the natural consequences of our conduct as they might affect others. But such a state of independence cannot exist-in civilized society. Our interests are so bound up with the interests of those about us that it is to the advantage of all *571that we should each recognize the relations we occupy towards each other, and the obligations that spring therefrom. The maxim “ sic utere tuo ut alienum non ledas ” expresses this general conviction in the form of a rule of civil conduct. It is in fact “ the golden rule ” applied to our business transactions, or to such of them ás are within the reach of the law.

The eases in which it has been applied by the courts are too numerous for citation here, and embrace a wide range of subjects. It was held applicable to the owners of successive strata in the earth’s crust in Jones v. Wagner, 66 Pa. 429, which appears to.be the first case in which the obligations of the owner of the subjacent estate came before this court for consideration. We held in that case that where the mineral estate is severed from the surface by a conveyance, the lower estate passes to the grantee subject to the servitude imposed upon it by nature for the support of the surface. The surface owes to the lower estates an easement or servitude for access. The lower estates owe to eacii other and to the surface an easement for support. The owner of the mine must leave enough of the mineral in place to answer the purposes of support for the.surface unless the owner of the surface has released his right to support. This rule has been recognized and applied in many cases among which are Horner v. Watson, 79 Pa. 242; Coleman et al. v. Chadwick, 80 Pa. 81; Carlin & Co. v. Chappel, 101 Pa. 348; Williams v. Hay, 120 Pa. 485. This right to support may be released by apt words in a deed of conveyance; Scranton et al. v. Phillips et al., 94 Pa. 15; but such release will not be implied from language that does not necessarily import it: Williams v. Hay, supra. The grant of a mineral estate, or of the right to mine, is a grant of the right to penetrate the earth in search of the mineral stratum, and when found to quarry and remove the mineral in a proper manner. Such injuries as are the necessary result of this process do not afford a cause of action to the owner of the surface. If his springs are drained or his well destroyed as the natural result of the excavation made to reach and remove the coal, he has no right to complain: Bainbridge on Mines, 483; Am. & Eng. Encyclopædia of Law, vol. 15, p. 588; Turner v. Reynolds, 23 Pa. 199. But a sale of all the coal under a tract of land is not in terms or hy necessary implication a release of the right to *572surface support any more than the sale of the first story of a building, two or more stories in height, would be a release of the floor so sold from its visible servitude to the remainder of the building. The release must be in either case by express words or by necessary implication. It is thought that this rule has been qualified in the late case of Sanderson v. The Coal Company, 113 Pa. 126, but we do not so understand it.

The question presented in that case was whether as between owners of land lying along a stream the owner of the upper tract may open mines upon his land when the drainage therefrom must necessarily pollute the stream and render it unfit for use by the lower owner. We held that the lower tract owed a servitude for purposes of drainage to the tract above it because of its position; and that while the owner of the upper tract was bound to the exercise of diligence in his effort so to use and develop his own land as not to injure that of his neighbor, still, if notwithstanding the exercise of reasonable care and precaution injury was unavoidable, such injury would not sustain an action for damages. Within the lines thus stated Sanderson v. The Coal Company is an authority. Under some circumstances a refusal to apply it might work a practical confiscation of the upper estate for the benefit of the lower, notwithstanding the natural servitude under which the lower is placed by its position. On the other hand to insist upon its application under all circumstances might result in a practical confiscation of the lower for the benefit of the upper. For myself I would permit no general rule of this sort to work confiscation in either case, but leave to a court of equity the adjustment of the terms and conditions on which each could use his own so as to inflict the least practicable injury on the other. This court however is not disposed at present to modify the rule of Sanderson’s case as it is stated above. That rule has no application to this case. Here it is the owner of the lower or servient tenement who invokes it to defeat a recovery by the owner of the surface which is the higher and dominant. The rule stated in Jones v. Wagner, supra, is that which controls this case. The surface is entitled to support unless its right thereto has been clearly released by the owner. The several assignments of error do not require a separate treatment. They are overruled and the judgment appealed from is affirmed.