Griffin v. Coal Co.

McWhorter, Judge :

This is a writ of error to a judgment of the circuit court, of Harrison county rendered in the case of Leander Griffin ■ against Fairmont Coal Company, by the Honorable John W. Mason, then judge of that court. The learned judge in .rendering the judgment, filed in the case an opinion in writing, which opinion is copied into one of the briefs filed in the case, and so ably discusses most of the questions arising in the case that I have quoted and adopted as part of the opinion in this case a large part thereof, which accords in the main with the views of the majority of this Court.

“The declaration alleges that the plaintiff on-day of -; 1902, was the owner in fee of a certain tract of land, situated in Harrison county, and fully described by metes and bounds, containing about sixty-eight acres, and that underlying the surface of said land there is a vein of coal, which coal (except about three acres) the plaintiff and his grantors on the 1st day of November, 1889, sold and conveyed to Johnson N. Camden, with the following mining rights and privileges:

“The party of the second part and his assigns is to have the right of way through said reservation for a road', air-course and drain way, necessary or convenient for the mining and removal of said coal and the coal under coterminous and neighboring lands, together with the right to enter upon and under said land, and to mine, excavate and remove all of said coal and remove upon and under said land the coal from under-adjacent, coterminous and neighboring lands, and also the right to enter upon and under the tract of land hereinbefore. described, and make all necessary structures, roads, ways, excavations, air shafts, drains, drain ways and openings necessary and convenient for the mining and removal of said, coal and the coal from coterminous and neighboring lands to. market.

“The declaration further alleges that said coal and mining rights were, by various deeds, conveyed to the Fairmont Coal Company, and that it was, on the-day of-, 1902, the owner of said coal and mining rights and privileges; that the said farm or tract of land was owned in fee and used and occupied by the plaintiff on the day and year last aforesaid,, *482 and for a long time prior thereto as' a home and farm; that the defendant on the day and year last aforesaid, and prior thereto, mined and removed the coal under the said tract of land, as it had a right to do, leaving, however, large blocks or pillars of coal as a means of support to the overlying surface of said tract of land; that on the-day of-, 1902, the defendant, well knowing the premises, by its agents ¡and servants wholly ignoring the right of the plaintiff in that behalf, did wilfully and negligently and without any compensation therefor, or from the damages arising therefrom, mined and removed all of the said blocks or pillars of coal left as aforesaid, and that by reason of the mining or removal •of said blocks or pillars of coal, and by reason of the failure ■of the defendant to provide in any way proper or sufficient ■support for the overlying surface of said land, the said land, ■or a large portion thereof, was caused to fall; that the strata of rock overlying said coal and forming a part of the said land were cracked, broken and rent, and that large bodies of it, with the overlying surface fell leaving the said surface with holes and sunken places of such great size and depth as to render it unsafe and of little value for grazing stock or ■cattle or other farming purposes; - that fissures of great depth, and running at great length were made at different places on said land, some of which were near to the dwelling house of plaintiff, passing through that part of said land most valuable for cultivation, and all the water percolating said land above the said coal removed as aforesaid, and all the springs and other courses supplying said farm were diverted, sunken .and wholly destroyed.

“There is also a second count in the declaration alleging that defendant through its agents, servants and employes entered said mine under the said premises and wrongfully and wilfully, and without any compensation therefor, did quarry large quantities of valuable building stone and remove the ■same off of the said premises, which stone were of the value ■of $200.00.

“The damages claimed in the conclusion of the declaration ■are $5,000.00.

“The defendant has entered a general demurrer to the declaration and each count.

*483 “The questions arising upon this demurrer are the only ones now before the court.

“No defects in the second count have been suggested by counsel and none are observed by the court, unless it be that it should be averred that the stone removed belonged to the plaintiff. It is possible that by a liberal construction this may be inferred from the general averment of ownership of the land (with exceptions named) contained in the first part of the declaration. It was probably unnecessary to repeat this, in this Court. The demurrer to the second count may therefore be overruled.

‘ ‘The serious, and in fact, only important question in this case arises upon consideration of the first count. No objections have been pointed out to the form of this count. The objection insisted upon by defendant goes to the right of action. If the defendant’s contention be correct the facts stated in the first count do not constitute a cause of action, even if formally pleaded.

“I may add, in passing upon this count, that the declaration should,, in addition to the formal commencement and conclusion, contain four parts, to-wit:

‘ ‘First, A statement of the interests and relative rights of the parties.

“Second, The duties which the defendant owed the plaintiff. *

“Third, A breach of duty on the part of the defendant, and,

“Fourth, The damages ^hich resulted to the plaintiff by reason of this breach of duty.

“This declaration does contain a very full statement-of the rights of the parties. It avers that the - plaintiff owned the land, except the coal and mining rights and privileges named; that this coal and mining rights belonged to the defendant; that plaintiff was in possession using and occupying the land as a home and a farm; that the defendant mined and removed coal under said land as it had the right to do.

■ “The declaration does not, however, in specific terms, declare what are the duties as claimed by the plaintiff imposed upon the defendant in the premises. The pleader simply avers that the defendant mined and removed coal under the *484 land, leaving, however, large blocks or pillars of coal as a means of support to the overlying surface, and then alleges that the defendant, by its agents and servants, wholly ignoring the rights of the plaintiff in the behalf did wilfully and negligently, and without any compensation therefor, or for the damages arising therefrom, mine and remove all of the said blocks or pillars of coal, left as aforesaid, and that by reason of the mining and removal of said blocks or pillars of coal, and the failure of defendant to provide in any way proper or sufficient support for the overlying surface the land was caused to fall,-etc. Now it will not be contended, I apprehend, that these blocks and pillars of coal did not belong to the defendant, nor that it did not have the right to remove them. All that can be claimed is that if all the coal be removed some sufficient support would have to be provided in its stead. At most, all that could be required of the defendant in this respect would be to furnish a sufficient support for the overlying surface. The declaration is somewhat confusing and uncertain on this point. But if I am correct in the views hereinafter stated, this is immaterial."

“The demun’er is to the whole count, and the court must consider whether or not the count contains any matter which will sustain the action.

“In investigating this subject the character of the transaction should be kept in mind. The plaintiff of his own will sold and conveyed this-coal with the express privilege of removing all of it. The plaintiff knew when he sold the coal that its removal was contemplated, and consented thereto in language which admits of no doubtful meaning. He also knew that when all the coal should be removed that the overlying surface would sink unless supported. He, by clear and unequivocal language granted a privilege which would necessarily injure him. Why did he grant this privilege? Was the contemplated injury to the surface a part of the consideration of the grant? Or was there an implied contract that compensation would be made for the injury? The deed itself is silent on this subject. Which is the more reasonable theory? Why shall not the defendant have without additional compensation, what the plaintiff has sold and conveyed and agreed it shall have? There being no ambiguity *485 in this contract why should the court look beyond it for a meaning? Why shall it not be permitted to speak for itself?

“A person who owns the entire estate may sell and convey any part of it. It may be divided horizontally, perpendicularly, or in any manner according to the will of the owner. It is a mere matter of contract. The plaintiff owning the entire estate had the unquestioned right to sell and convey this coal with necessary and convenient mining rights.. He did this. Why is not the transaction closed? ' It certainly is unless there is an additional implied contract or the courts shall extend and add burdens not included in the deed. It is insisted by the plaintiff that the owner of the coal must bear this additional burden because it proposed to remove the coal and that its removal will injure the overlying surface unless supported. Was not this as well understood before the deed was made as afterwards? The plaintiff parted with his title to the coal and granted the right to have it removed upon terms satisfactory to himself. He could easily have required the grantee to furnish support for the surface when the coal should be removed. He owned the natural support of the surface, and sold it and granted the right to remove it, and now asks that before this natural support is removed some other must be provided by the purchasher. It is conceded that the defendant takes under its deed all the coal, and has the right to remove it, that is, it is the owner of all, but it is said it cannot use it (for it is of no possible use to defendant without being removed) without providing some means by which the overlying surface will not be disturbed. On the other hand it is insisted by the defendant that when the plaintiff sold this coal, including the right of removal, that he must have known that its removal would injure the surface unless supported, and that as a man of ordinary prudence and business capacity he protected himself and received ample remuneration for this injury in the purchase price, — that the consideration paid included the value of the coal, and the injury which would be done to the residue of the estate by its removal. Of course the mere fact that a person is the ven-dee of another does not get him a license to wantonly inure his vendor. It is simply a question whether the injury complained of was anticipated before the conveyance, and taken into consideration and compensated for in the consideration *486 paid by the purchaser. When the contract is silent upon this point is there any reason why a contract for the sale of minerals should be construed by rules entirely different from the rules of construction applicable to other contracts? It is a rule without any exception (unless the class of contracts under'consideration constitutes exceptions) that when a person sells a thing with the right to remove it, or the right to occupy and use it, that he is conclusively presumed, in the absence of a contract to the contrary, to have included in the consideration not only the value of the thing sold, but compensation for the inconvenience and injuries which will necessarily result by its removal or occupation. Many illustrations might be given, such as the sale of growing crops, fruit on the trees; wool on the back of the sheep; trees standing in the forest. Many logs of timber are sold from the standing trees, with the right to cut and remove, and no one would think of asking compensation for the residue of the trees before removing the logs, although the removal of the logs would destroy the trees. In such case, evidently the person selling the logs would take this into consideration when fixing the price of the logs. A farmer may sell that part of his farm most useful to him in furnishing an outlet to the public road, making access to the highway inconvenient. He may sell the portion containing water and seriously lessen the value of the residue, but these things are all presumed to be taken into consideration when the sales are made. The building of a railroad through a piece of land may damage the part not taken. This is always considered when fixing the price of the right of way, whether by private sale or condemnation. Why should a different rule prevail when a contract is for the sale of mineral below the surface?

“The English rule as tersely stated by Baron Barke in the case of Harris v. Ryding, 5 M. & W. 59, in the following language: ‘I do not mean to say that all the coal does not belong to the defendants, but they cannot get it without leaving sufficient support. ’

“This rule thus suggested, when carried to its ultimate and logical conclusion means that a sufficient support must be left even if it take all the coal. The Supreme Court of Pennsylvania has frankly stated the rule to be:

“ ‘Where there has been a horizontal division of land the *487 owner of the subjacent estate, coal or mineral, owes to the superincumbent owner a right of support. This is an absolute right arising out of the ownership of the surface. Good or baci mining in no way affects the responsibility; what the surface owner has a right to demand is sufficient support, even if to that end it be necessary to leave every pound of coal untouched under his land. ’ Noonan v. Pardee, 200 Pa. State Rep. 474.

“The reason given by the English courts for the rule under consideration, is that there are two separate estates, one belonging to the owner of the mineral and the other to the owner of the surface; that each has the right to use his own — the owner of the surface to occupy the surface and the owner of the minerals to mine them, but each must so use his property as not to interfere with the other, in accordance with the well recognized maxim of the law. ■ .‘Enjoy your own property in such a manner as not to injure that of another person’. ’ Truly this is a just and equitable maxim. It is the Golden Rule of the law. But no one should be permitted to use it as a cloak to cover wrong. Certainly the person who owns the entire estate may sell a part of it, and also a privilege to be exercised in connection with the part sold, which will injure the part retained by him. It would be manifestly unjust for the person who has made a contract of this kind, and received the compensation for the, injury, to be permitted to invoke this righteous maxim to aid him in committing a fraud. I understand this maxim can only be properly applied to ‘Restrict the enjoyment of property, and to regulate in some measure the conduct of individuals by enforcing compensation for injuries wrongfully occasioned by a violation of the principles which it involves, a principle which is obviously based in justice, and essential to the peace, order and well being of the community. ’ Broome on Legal Maxims, 289. I do not understand that it applies to injuries done to property by authority of the owner for a compensation. The compensation for the injury is a proper matter of contract between the-parties, and there is no reason why the injured party may not receive satisfaction by contract as well as by the verdict of a jury. In order to avoid the force of this reasoning it has been held that in such conveyances all the estate is not granted with the minerals — that *488 'prima, facia enough, is reserved ‘by implication for support of the overlying surface. Baron Parke admits that the title to minerals passes by the deed, but says that grantee cannot take them without providing support for the surface, but Chief Justice Campbell lays down the rule in Humphreys v. Brogden, 12 Q. B. 730, that the presumption is, in the absence of express words waiving or qualifying the right that the surface must be protected with the natural support which it possessed before the demise. Which means, I take it, that enough of the minerals are reserved for that purpose. I cannot assent to this proposition. This rule, taken in connection with the other one propounded by the same court, that sufficient of the minerals must be left, no matter how much, to support the surface, involves the absurd proposition that a person who owns the entire estate may convey without limitation or qualification all the coal, with the right to remove it, and yet the deed contain the presumption that a portion of the coal is reserved, and further, that the coal reserved may amount to the whole of the estate granted that the purchaser in fact takes nothing. It seems to me that this is a rechictio ad aisurdum. Why not assume, at least prima facia, that the deed is correct; that it means just what it says when there is no ambiguity? When a deed on its face by' plain and apt words conveys all the coal, why should the courts say there is an implied reservation of part or perhaps of all of it, and that less than the whole, or in some cases nothing, is conveyed ? The owner of property about to part with the title is at liberty to prescribe the terms and conditions on which he will do it. The intention of the parties is presumed to be expressed by the language of the deed itself. If no reservations or exceptions are found in the deed none should be presumed. The deed as the witness to the contract between the parties should speak the truth, the whole truth and nothing but the truth.

“The rule for the construction of deeds prescribed by our statute is:

“ ‘Every'such deed conveying lands, shall, unless an exception be made therein, be construed to include all the estate, right, title and interest, whatever, both at law and in equity of the grantor in such lands. ’ Code, chapter 72, section 2.

*489 “Again, some of the courts uphold the rule on the principles applied in the cases prohibiting one owner of land from making an excavation so near the adjoining lands of another that the soil of the latter breaks away. This illustration is not an apt one. Ordinarily, in the cases where lateral support is required there are no contractual relations between the parties. Even when they sustain the relation of vendor .and vendee toward each other the excavations are not -contemplated by the nature of the transaction. But in the sale of coal the removal is not only contemplated but expressly authorized. Lord Campbell in delivering the opinion in the case of Humphreys v. Brogdon, 12 Q. B. 739, cites as authority supporting his opinion, the case when a person purchases one story of a building containing two or more stories. He says:

“ ‘Where a house is divided into different floors or stories, ■each floor belonging to a different owner, which frequently happens in the city of Edinburg, the proprietor of the .ground floor is bound merely by the nature and condition of his property without any servitude, not only to bear the weight of the upper storj’', but to repair his own property that it may be capable of bearing that weight. The proprietor of the ground story is obliged to uphold for the support of the upper, and the owner of the upper must uphold that •as a roof or cover to the lower.’ 32 Am. Rep. 112. The conclusion reached by the learned chief justice is erroneous because his premises are wrong. He assumes that the cases .are similar. A moment’s reflection will convince any one that they are dissimilar in a very material point. The story of the building, whether the lower or top one, is sold and •bought to be used in place. This is apparent from the very nature of the transaction; but in the case of the sale of coal the opposite is true. It cannot be used in place. In the case at bar nothing is left to presumptions. The deed expressly .grants the right to remove it.

“It is conceded that the grantor might waive the right to support of the surface, and where that is done there can be •no recovery for injuries caused by the subsidence of the soil. It is insisted by the defendant that the language used in the •deed in controversy is equivalent to a waiver. It is true that in this deed there is not only a grant of the coal, but also an *490 express grant of the right to remove ‘all of it.' It may be that this grant of the right of removal acids nothing to the legal effect of the deed except to make the general grant more emphatic. Taking the entire granting clause of the deed together there can be no doubt as to the intention of the parties. I rest the case on the fact that plaintiff by his deed conveyed the coal with the right to remove all of it. There is no limitation to or qualification of the estate granted, nor is there anything in the deed to indicate an intention to limit or restrict the right to remove the coal. Then, the plaintiff was the owner of the entire estate, and when parting with the title to the whole or any part of it could do so on terms- and conditions to be agreed to by him. He was fully aware of the injury that might naturally and reasonably be expected to result from the removal of the coal, and yet he expressly authorized its removal. Under these circumstances it is proper to assume that the price paid for the coal and the mining-rights granted, was fixed with.reference to the nature, extent and effects of the rights conveyed. There is no ambiguity in the terms of the grant, and there is no reason to believe that the grantor did not fully understand them, or what was the effect of the deed, deliberate^ made by him.

“It may be that it was an improvident contract; but courts cannot make contracts for people; they can only construe the contract made by the parties. I cannot construe this contract to mean that the parties intended that the plaintiff should sell his coal, receive the pay for it, and keep both the coal and the money. This would certainly be a perversion of the homely old proverb that you ‘Cannot eat your cake and keep-it. ’ Nor can I reach the conclusion by anjr fair construction of the language employed by parties in the deed that any additional burden was to be placed on the grantee before enjoying his property than those named in the deed. This -would be inserting in the deed new conditions. I am clearly of opinion that the courts hereinbefore referred to have wholly disregarded the well established rules of construction applied in construing all other contracts. It is a rule as I understand the law of universal application, that where there is no ambiguity in the language of a deed it should be construed according to its legal effect to be gathered from its face. 5 Grat. 141.

*491 “But if these cases are to be followed a different rule is to prevail in construing- deeds conveying minerals. We must according to these decisions, presume that a part of the thing conveyed was intended to be reserved, notwithstanding the conveyance is without qualification or limitation, or any expressions in any part of the deed indicating that the parties intended anything but an absolute grant.

“I wish to be clearly understood, and hence at the risk of becoming tiresome by unnecessary repetitions will add that I do not mean to intimate that the person who owns the entire estate and sells the subjacent strata of any kind should give away the surface or waive damages thereto without compensation. What I mean is that all such questions should be settled at the time these strata are sold, and that courts should presume they were so settled unless a contrary-intention appears on the face of the deed. The removal of substrata is a matter of too much importance, and effects too largely the residue of the estate, not to enter into the contract or to be left to doubtful and uncertain implications of law. Of course the rule of law which applies to coal must apply to fire-clay, potter’s clay, iron ore and all subjacent minerals. The thing sold and to be removed may be of very small value as compared with the overlying surface, and as a consequence the owner would want to sell only so much as could be removed or taken away without disturbing the surface, on the other hand, the thing sold may be of so much more value than the surface that the owner would be willing to sell and authorize the removal of all without reference to the soil. He might not wish to retain coal which he could sell at $100.00 per acre to support surface worth $5.00 per acre.

“Many examples may be found; coal removed from the same opening, and when the coal is of the same value, yet there may be immense difference in the value of the overlying surface. Then, again, in many places are found several veins of coal overlying each other; when the owner of all of them sells the lower vein and retains the others he is interested not only in protecting the soil but the intervening strata as well. Many other illustrations might be given but these are sufficient to illustrate my idea and to show that in all sales of minerals the question of injury to the lands not con *492 veyed is of so much importance that courts should not assume that it was not considered and made part of the consideration • of the deed. In mining coal perhaps from So to 50 per cent, of the entire vein would have to be left in the land by way of ribs and pillars, unused, to form surface support. This ■ would depend to some extent upon the depth of the coal below the surface and the nature and condition of the intervening rocks if any. These pillars and ribs would be of no possible use to any one except to the owner of the overlying surface. iSTow whether all this coal is to be bought and removed, or only a part of it, and the residue to be kept by the owner for the benelit of his other estate, are proper subjects of contract, and the contract must be expressed in the deed. When the deed shows clearly on its face that all the coal was sold, and .especially where there is a clause giving the right to remove all of it, I cannot think the courts have any right to say that the deed does not prima facia mean what it says. This would be to construe out of the deed, after it was made, and delivered from 35 to 50 per cent, of what clearly passes by its express terms. For it is a matter of common information, known to all who have paid any attention to mining that in coal mines the coal will have to remain in place as a support, or the surface be permitted to subside. Permanent artificial support would cost more than the coal is worth in most cases. So it is a question of leaving something like one-half the coal in the mine or removing all and permitting the overlying surface to adjust itself to a new bed. And this, I again repeat, should be left for the parties to determine by their contract. If the owner of the coal wishes to keep half of it as a support for the surface he has a perfect right to do so, and if he wishes to sell all and permit all to be removed he may also do that. When he has made his contract in accordance with his own will and reduced it to writing the courts may declare the legal effect of the writing but cannot change it.”

In 9 Gyc. 577, it is said: “The law furnishes certain rules for the construction of written contracts for the purpose of ascertaining from the language the manner and extent to which the parties intended to be bound and that rule ought to be applied with consistency and uniformity; and it is not proper for a court to vary, change or withhold their applica *493 tion;” citing Johnson County v. Wood, 84 Mo. 489; Heady v. Building Association, 26 S. W. 468 (Tex.) It is further said on the same page, 9 Cyc.: “The first and main rule of construction is that the intent of the parties as expressed in the words they have used must govern. Greater regard should be had to the clear intent of the parties than to any particular words which they may have used in the expression of their intent. If the words clearly show the intention there is no need for applying any technical rules of construction, for where there is no doubt there is no room for construction.” And cases there cited. And same volume 581, “It is not the province of a court to change the terms of a contract which has been entered into, even though it may be a harsh and unreasonable one. Nor will the dictates of equity be followed if by doing so the terms of a contract are ignored; for the folly or wisdom of a contract is not for the court to pass upon. Its terms, however onerous they may be, must be enforced if such is the clear meaning of the language used and intention of the parties using that language. ” Citing Larguier v. White, 29 La. Ann. 156, where it is held: “The stipulations made by the parties in their contract are the law to them, and to their assigns under the contracts, except when such stipulations are in contravention of the public law or good morals.” The deed set out in plaintiff’s declaration gives to the grantee and his assigns, in as clear and distinct terms as the English language could well express, the “Right to enter upon and under said land and to mine, excavate and remove all said coal.” In Carrington v. Goddin, 13 Grat. 587, it is held: “If it is doubtful on the face of the deed whether one or both of the parcels were intended to be conveyed, the deed will be construed most strictly against the grantor and so as to give it effect, rather than that it should be void for uncertainty.” And in Allemong v. Gray, 92 Va. 216, it is held that where: “If the words and provisions are doubtful they are to be taken most strictly against the grant- or.” And in Lagorio v. Dozier, 91 Va. 492, it is held: “A deed should be so construed as to give effect to the true intent of the parties, as expressed in the deed, considered in all its parts, and construing the language used according to its common and usual acceptation.” And in Gibboney v. Fitzsimmons, 45 W. Va. 334, (syl. pt. 1), “The legitimate *494 purpose of all construction of instruments in writing is to ascertain the intention of the party or parties making the same and when this is determined effect will be given thereto unless to do so will violate some established rule of property.” And in Hurst v. Hurst, 7 W. Va. 341, it is held that parol evidence as to the actions or declarations of the parties at the time of the execution of the deed or afterwards are inadmissible and incompetent to enlarge, restrain, explain or alter the intention of the grantor or grantee, “As expressed in the deed or to vary the legal effect thereof as clearly manifested by the deed itself.” MoDougal v. Musgrave, 46 W. Va. 509; and in Long v. Perine, 41 W. Va. 314, (syl. pt. 2), it is held: “Where there is no ambiguity in a written contract, oral evidence is not admissible to explain it, as it speaks for itself.” And in 9 Cyc. 590, treating of the construction of a deed by the parties thereto being adopted by the court in giving effect to its provisions, says: “The rule above stated does not apply, however, where the meaning of the terms used is clear. In such a case the fact that the parties have themselves, by their subsequent conduct or otherwise, placed an erroneous construction upon them will not prevent the court from giving .the true construction.” And cases there cited.

We agree with the conclusion reached by the learned judge in what we have above quoted from his opinion, and with much of the reasoning upon which it is based. We do not, however, fully agree with all that is said in his opinion. We do not agree that the additional grant contained in the deed of the right to enter upon and under said land and to mine, excavate and remove all of said coal adds nothing to the legal effect of the deed, or that it is merely emphasis to the general grant, as intimated by him. It seems to us that this additional grant has a distinct and material office to perform and that force and effect must be given thereto in the construction of this deed. In the construction of a deed, effect must be given to every part and every word therein contained if possible to do so.

We in no sense question the doctrine or right of subjacent .support in a case where the surface and subjacent estate are owned by different persons and the right of support has in. no way been parted with or waived by the surface owner.

*495 In case at bar there is no ambiguity in the language of the deed, and taking the words used in their common acceptation they have but one meaning, and therefore there is no room for construction. The reservation of the three acres in the deed is in such language as to emphasize the intention of the parties that all and not a part only of the coal should be removed from the land not so reserved, as it plainly provides for the protection of the three acres, only granting .“The right of way through said reservation for a road, air course and drainway, necessary or convenient for the mining and removal of said coal, and the coal under coterminous and neighboring lands.”

It is contended by counsel for plaintiff in error that it is a question of public policy and says that “West Virginia is not altogether silent on this question.” Citing section I, chapter 19, Code, which provides: “No owner or tenant of any land containing coal shall open, or sink, or dig, excavate or work in any coal mine or shaft, on such land, within five feet of the line dividing said land from that of another person or persons, without the consent, in writing, of every person interested in, or having title to, such adjoining lands, in possession, reversion or remainder, or of the guardians of any such persons as may be infants;” with a penalty attached for any violation thereof, to be recovered by the party injured. This is a provision for the protection of lateral support of coterminous owners between whom there are no contractual relations and the statute cited recognizes on its face that it is a matter of contract between the parties interested; but, the law makers did not presume to legislate concerning subjacent support, recognizing the well established fact that the owner of the whole estate in fee, has unlimited control thereof, from the center of the earth to the surface, and if he could himself by mining or other means cause the subsidence of the whole or any part of the surface not within five feet of his exterior line he could by contract grant that right to another, and this is a fact conceded, as well in the English and American States cases cited, as by counsel for plaintiff in error.

It appears from the record that the plaintiff waived his second count and declined to amend the first count, the demurrer to which was sustained by the court because “It seeks to recover damages from the defendant for having done *496 wliat the deed upon which the action is based, clearly and unequivocally authorized the defendant to do.”

The reasons for our decision in this case are more elaborately set out in an opinion filed by Judge Cox, which appears below, and in which all the members of the Court concur, except Judge Poffenbargeb, who dissents from the decision.

There is no error in the judgment and the same is affirmed.

Affirmed.