234 Pa. 492 | Pa. | 1912
Opinion by
The rule of law upon which appellant relies is well settled in Pennsylvania, but difficulties frequently arise in applying it to the facts of a particular case. The rule is that in a grant of all the coal underlying a tract of land, in the absence of an express waiver, or the use of words from which the intention to waive clearly appears, there is imposed upon the mineral estate the servitude of surface support. In our state there has been no departure from this rule which has been recognized and asserted from Jones v. Wagner, 66 Pa. 429, to Dignan v. Coal & Coke Company, 222 Pa. 390. While the common law right of the owner of the soil to have the surface of his land supported by the underlying mineral estate conveyed to another party, has always been recognized by our courts, it is equally true that the surface owner may and does waive this right by a grant of all the coal with the right to mine and remove it without liability for damage to the surface by so doing. Our cases relating to this question may very properly be divided into three classes: 1. Those relating to grants of coal without any mention of damages to the surface by mining and removing the same; 2. Those relating to grants of coal coupled with mining rights and the waiver of damages resulting by reason of the proper exercise of the mining privileges; and, 3. Those cases in which the grant of the coal together with mining rights is followed either by an express waiver of damages to the surface resulting from the removal of the coal, or by words importing such a waiver. In the first class of cases, the owner of the surface has the unquestioned right to recover damages for injuries to the surface occasioned by the removal of'the coal. To this class belong Jones v. Wagner, supra; Horner v. Watson, 79
Decree affirmed at the cost of the appellant.