
    LOWRY VS. HAY.
    The owner of the surface is entitled, to actual absolute support, unless that ■obligation is distinctly waived.
    Error to Common Pleas of Somerset County. No. 148 January Term, 1885.
    This was an action on the case to recover damages to the surface of land, by mining out the coal. The deed under which the plaintiff below claimed, contained the following reservation: “The party of the first part reserve all the coal, iron ores, fire-clay and all other minerals and all other mineral substances both liquid and solid under the surface of said land except limestone.”
    The Court, inter alia charged the jury, as follows:
    (Gentlemen oe the Jury : — This is an action on the case to recover damages for an injury to the surface of a tract of land owned by Josiah M. Hay. The damages sought to be recovered here are not damages arising from any vindictiveness or maliciousness ; but they arise from alleged negligence on the part of the owners of the coal, with which the land was underlaid, in taking it out, whereby an injury resulted to the owner of the surface. The facts in the case are fresh in your minds, and they have been ably and thoroughly discussed. Our charge will therefore be fully understood in our answers to the points submitted by the ■counsel, and our rulings on the law and the measure of damages.
    We have been asked by the counsel, for the defendants to answer certain points, which we now do.
    First. If the plaintiff, at the time of the purchase of the tract of land on which the alleged injury is charged to have been committed, knew that the Salisbury and Baltimore Railroad and ■Coal Company, the parties in said deed, were about to mine the coal on the said land, then he took the title to the surface subject to whatever injury would be done in the careful mining of the coal on said land; and if the jury believe that the defendants being the lessees of said company, mined the said coal in a ■careful manner, then the defendants are not responsible, even if some injury was done to the land in mining the same.
    Answer. This is a broad point, and if affirmed, would excuse an injury resulting from careful mining. We refuse this point. He is not excused from paying damages, if damages follow, no matter how careful he was in mining.
    
      Third. If the jury believe that Hay, at the time he purchased the surface of the tract of 42 acres and 42 perches, was informed by Aspach, President of the Company, that mining the coal would let the surface down several feet, then Hay took the land with the knowledge that the surface would be injured, and is not entitled to recover in this case, even if the jury believe that the surface was injured.
    Answer. The deed was the last act of the parties in the negotiation, the contract referred to was merged in the deed, and the deed itself does not except from the grant the implied right of surface support which passed with it. Hence we refuse this point.
    Fourth. If the jury believe that the coal underlying the ground in dispute could not be removed without letting down the surface, although mined in a careful and skillful manner, under the pleadings in this case the plaintiff is not entitled to recover, even if the surface was injured by the ground falling in.
    Answer. We refuse to affirm this point.
    Fifth. That the plaintiff having shown a deed from the Salisbury and Baltimore Railroad and Coal Company to him for the land, and the lessees having shown a lease by the Company to the defendants, the liability, if any, would be on the part of the Company, and not on the lessees; and the verdict must he for the defendant.
    Answer. We refuse to affirm this point.
    We now come to the points submitted by the plaintiff in the case.
    First. That if the jury shall find from the evidence that J. M. Hay is the owner of the surface, and the defendants the lessees of the coal under the said surface, and that the defendants, or their employees mined, took and carried away the coal underlying the said surface, and by reason of their mining and removing the coal from under the said surface, the surface caved, sunk or fell in they are responsible for all damages caused thereby to the owner of the surface without regard to the manner of mining, Avhether skillful or negligent, the owner of the smfface is entitled to actual, absolute support of his laud at the hands of the operator of the mines.
    Second. That if the jury shall find that the surface of a portion of plaintiff’s land sunk, caved and fell in by reason of-the removal of the coal from beneath it by the defendants by not leaving sufficient actual support, or not keeping up sufficient posts and supports, the plaintiff is entitled to recover such damage as he has Sustained by reason of the surface so destroyed, the additional fencing, if any,'made necessary thereby, and the shape in which it throws the balance of the tract of which it is a part.
    Ansayer. We answer these points in one in the general charge which now follows: Where ,one grants the surface of land and reserves the coal and minerals, as in the case on hand, an implied right of support to the surface passed with the grant to the grantee; and neither the grantor nor his lessee may mine and remove the coal and minerals without leaving actual, absolute support to the surface, unless by apt words in the deed, the implied right of support has been excepted from the grant. In the ease on trial there is no such exception in the deed, and the right to surface support passed with the deed to Mr. Hay; the grantor, his lessee, or any one holding under him must therefore, in mining, leave sufficient support to sustain the surface. The surface belongs to the plaintiff, the coal to the defendants and those under whom they hold. They may take all the coal, if they ’ can do so without, causing a subsidence of the surface ; but they must support the surface by actual, absolute support by leaving a sufficiency of ribs and pillars to hold it up, or by the coal itself, and if they take it all out, they must provide actual and absolute support in some other way. The failure to so sufficiently support the surface is negligence and renders the owners and workers of the mine liable to damages for the injury sustained. The owner of a mine has a right to mine his coal in any ordinary and reasonable way so long as that does no injury more than that which necessarily arises from the removal of the coal; but in this case the skillfulness of the mining is not involved, the case turns upon the question whether the surface was sufficiently supported by an actual support which holds up the surface and keeps it from subsiding. If the jury, from the evidence, find that the surface has not been kept up by actual and sufficient support, then damages follow.
    September 25,1884; verdict for plaintiff for $350.00.
    Defendants below, then took this writ of error, complaining of the answers of the Court to defendant’s third, fourth and fifth points.
    
      Messrs. Coffroth & Rappel and Koontz & Baer, Esqs., for plaintiff in error,
    argued that Hay had been informed, that the coal was to be taken out and the surface let down when he bought the land ; and his attempt now to use his deed to prevent it, was a fraud on his part; and will open the door for parol evidence ; Renshaw vs. Gans, 7 Pa. 117 ; Rearich vs. Swinehart, 11 Pa. 233; Lippincott vs. Whitman, 83 Pa. 244; Shepler vs. Scott, 85 Pa. 329; Hoopes vs. Beale, 90 Pa. 82. The parol stipulation was not a contradiction to the deed; Colvin vs. Schell, 1 Grant, 226; Harbold vs. Kuster, 44 Pa. 392; Backenstoss vs. Stahler, 33 Pa. 251. Not all stipulations necessarily merge in the deed; Richardson vs. Gosser, 26 Pa. 335; Cox vs. Henry, 32 Pa. 18; Drinker vs. Byers, 2 P. & W. 528; Neil. vs. Thompson, 4 Watts 405; Campbell vs. McClenachen, 6 S. & R. 171. A contract may devote the whole minerals to the enjoyment of the purchaser, without supports, if the parties choose; Jones vs. Wagner, 66 Pa. 435; Scranton vs. Phillips, 94 Pa. 15.
    
      Valentine Hay, Esq., contra,
    
    argued that the owner of the surface is entitled to the actual, absolute support from the subjacent minerals, unless he releases that right; Jones vs. Wagner, 66 Pa. 429; Horner vs. Watson, 79 Pa. 242; Coleman vs. Chadwick, 80 Pa. 81; Carlin vs. Chappel, 101 Pa. 348. Articles of agreement merge in the conveyance, in the absence of fraud or mistake ; Richardson vs. Gosser, 26 Pa. 337; Creigh vs. Beelin, 1W. & S. 83 ; Gregory vs. Griffin, 1 Pa. 208; Dinsmore vs. Biggert, 9 Pa. 133; Jones vs. Wood, 16 Pa. 25; Shontz vs. Brown, 27 Pa. 123. Parol evidence is inadmisable to vary the terms of the deed; Martin vs. Berens, 67 Pa. 463.
   The Supreme Court affirmed the jn Igment of the Common Pleas, oh February 23rd, 1885, in the following opinión

Per Curiam.

The law is well settled that the owner of a mineral éstate, if not relieved by the terms of the conveyance, owes a servitude to the superincubent estate of sufficient support. This conveyance gives no such relief. All the parol evidence of the plaintiff in ■error is wholly insufficient to change the effect of the deed. It. does not prove any mistake or fraud to change the legal presumption that the writing contains all tne final contract. The absolute right to support, to sustain the surface which the law implies, cannot be overcome without an agreement distinctly waiving that obligation, as in Scranton vs. Phillips, 94 Penna. 15.

Judgment affirmed.

Note. — As to right of subjacent support; see, Barnes vs. Berwind, 3 Pennypacker 140; Carlin vs. Chappel, 101 Pa. 349. An injunction will be granted to prevent mining out the coal in such a manner as to let down the surface; Nelson vs. Miller, Hoch & Co., 1 Schuylkill Legal Record, 187.  