
    No. 419
    YANNELLI v. PASKELL et
    Ohio Appeals, 5th Dist., Perry Co.
    No. 148.
    Decided Mar. 25, 1926
    997. REAL ESTATE — Owner of subsurface coal has right to use surface lands for removal of such coal and injunction will lie against surface land owner if he attempts to prevent its exercise.
    Attorneys — J. L. Meenan, New Lexington, for Yannelli; J. E. Powell, New Lexington, and T. O. Crossan, Zanesville, for Paskell.
   HOUCK, J.

Charles Yannelli, owner of the coal under-lands which were owned by John Paskell, brought this action in Perry Common Pleas to enjoin Paskell from interfering with his rights in mining said coal.

It appears that Paskell refused to permit Yannelli to go upon the land to make necessary openings for the purpose of removing the coal owned by the said Yannelli.

Both Paskell and Yannelli had acquired their interest in this land from a common grantor, the grant to Yannelli giving him right to use so much of the surface as was necessary to mine and remove the coal granted to him. The grant also stipulated that he would in no wise be liable for the falling in of the surface.

Paskell asserts that he had made valuable permanent improvements on the surface which would be injured by the further mining of coal on said lands. Common Pleas refused to grant the injunction and Yannelli appealed. Court of Appeals held:

1. Owner of subsurface coal may remove same at such places as he may think proper and to his best interests.
2. Such removal must be without wanton and intentional damage to the rights of the owners of the surface lands.
3. The rights of the parties to this action are fixed by their respective grants from the common grantor.
4. Courts of equity cannot change these rights just because permanent and lasting improvements were made.
5. The owner of the coal has the right under his grant to- the use of the ‘ surface land to aid him in mining such coal and injunction granted to restrain surface owner from interfering with such right.  