
    Burgner v. Humphrey.
    1. If the owner of land grants a lease whereby he conveys all the underlying mineral coal, with the right to mine and remove the same, the lessee will not he entitled to remove the whole of the coal without leaving support sufficient to maintain the surface in its natural state, unless the language of the instrument clearly imports that it was the intention of the lessor to part with the right of subjacent support.
    2. B. made a contract of lease, and thereby sold and conveyed all the mineral coal in, under, or upon his farm, to H. & C., or their assigns —the lessees to pay ten cents per ton for each ton of coal mined and removed from the land. It was agreed by and between the parties to the lease “ that no mining operations by the parties of the second part, their heirs or assigns, shall extend to, or be so near the dwelling house or barn now upon said land, as to injure said buildings.
    
      Held: 1. That the coal under the buildings was exempt from the mining operations provided for in the lease.
    2. That the lessees were not only liable for damage done to the buildings, by mining and removing coal from under the same, but, the lessor was entitled to recover the net value at the mine, of all coal so mined and removed, at the time of its removal, irrespective of the price put upon other coal by the terms of the contract; and it was error in the court to exclude evidence offered by the lessor, to prove the quantity and value of the coal so mined and removed from under the buildings.
    
      Error. Reserved in the District Court of Summit, County.
    The original action was commenced November 7, 1878, by the plaintiff in error, Samuel Burgner, against the defendants in error, Julius Humphrey, William B. Coleman, and the Norton Coal Company, in the court of common pleas of Summit county. The action was founded on a written agreement, which reads as follows:
    “ This agreement, made and entered into this 10th day of September, 1866, by and between Samuel Burgner, of the township of Norton, county of Summit, state of Ohio, of the first part, and Julius Humphrey and William B. Coleman, of the state of Ohio, of the second part, witnesseth: That for the consideration of one dollar in hand paid by the said parties of the second part to the said party of the first part, the receipt of which is hereby acknowledged by the said party of the first part, and in consideration of the further covenants, agreements and stipulations hereinafter mentioned on the part of the said parties of the second part, the said party of the first part hereby bargains, sells, transfers, aliens and conveys unto the said parties of the second part their heirs and assigns, all the mineral coal, iron ore, limestone,- and all the other minerals, together with all the rock or petroleum oils and salines in, under or upon the following described tract or parcel of land, situate in the township of Norton, county of Summit, state of Ohio, bounded and described as follows, to wit: Being the south part of lot 73 in said township bounded south, east and west by the lines of said lot, and north by a line parallel to the south line of said lot, and far enough distant therefrom to contain 110 acres of land. Being the same land upon which Burgner now resides. And the said party of the first part also hereby further gives, grants and conveys unto the said parties of the second part, their heirs and assigns, as well as their workmen and laborers, the right, privilege and license to enter upon the above described lands at any and all times hereafter, and .search and explore thereon for said mineral coal, iron ore, limestone, clay and other minerals, oils and salines, or for any of them, and when found to exist on said lands, to dig, mine and remove the same therefrom, together with all and singular, the rights, privileges, licenses and easements necessary or incident, or in any wise appertaining to the proper prosecution of the business of mining and removing any or all minerals and substances aforesaid, and also the right of way for all necessary roads and railroads over any portion of said lands, and the right to erect thereon all necessary structures, buildings and fixtures of every kind necessary in the proper prosecution of said business; and the right to occupy a sufficient area of the surface of said land for stocking and storing the said coal, ore, limestone, or other substances, and the refuse therefrom, and the right to remove and transport the coal and other minerals from other lands over or under the land described during the continuance of this agreement; for and in consideration of which the said parties of the second part hereby agree and bind themselves and their heirs, executors and assigns, to enter upon said lands within one day from the date hereof, and make.search and exploration thereon for said mineral coal, iron ore, clay, limestone, and other minerals, oils or salines, unless satisfied from examination of lands adjoining or in the vicinity, that said exploration will be fruitless; and if the same or any of them be found to exist thereon in sufficient quantities and under such circumstances as to warrant the said parties of the second part, their heirs or assigns, in digging, mining and removing the same, then, and in that case, the said parties of the second part agree and bind themselves, their heirs, assigns and legal representatives to pay the said party of the first part, his heirs, legal representatives or assigns, the sum of ten cents per ton for each ton of 2,000 pounds of mineral coal mined and removed from said land as ¿merchantable coal, and other minerals according to the bills of the diggers, but not to include slack or fine coal, which said parties of the second part are to have the privilege of removing and selling free of charge, and the sum of ten cents per ton as above, for each ton of iron ore mined and removed therefrom, and the sum of ten cents per ton for each ton of clay mined and removed therefrom, and one-twentieth part of the net proceeds of any and all other minerals, oils and salines taken or procured from said lands by said parties of the second part, their heirs, legal representatives and assigns. And it is also agreed by and on the part of the said parties of the second part, their heirs, legal representatives and assigns, that so long as this lease shall be held by the said party of the first part, his heirs, executors, administrators or assigns, after the expiration of one year from June 2, 1866, a sufficient quantity of the said minerals, or one of them, shall be mined each year, to amount at the rate above mentioned to the sum of one hundred dollars, or that the same shall be paid to the said party of the first part, his heirs, legal representatives or assigns, the same as though a quantity of one or more of said substances had been mined sufficient to amount at the rate aforesaid to said sum. But all sums thus paid for any year in pursuance of this stipulation, and not applied in payment of any such minerals actually mined, shall be applied in payment of that subsequently mined, so far as the same will pay therefor at the rate aforesaid. It is mutually agreed that said parties of the second part shall have the privilege of cancelling and surrendering this lease at anj^ time upon payment of the amount due thereon at that time. It is also further agreed by the parties hereto for themselves, their legal representatives and assigns that all payments to be made hereunder shall be made annually, counting from the 2d day of June,-1866. (It is also agreed that the correctness of the scales and weighing of said coal and other minerals, and the books showing the weight thereof, and other minerals mined shall be open at all times during business hours to the inspection of the said party of the first part, his agents, legal representatives and assigns.) It is also agreed that no mining operations by the parties of the second part, their heirs or assigns, shall extend to, or be so near the dwelling house or barn now upon said land as to injure said buildings. This lease is made to protect and make more full a lease between the parties hereto entered into the 2d day of June, 1864. In testimony whereof the parties hereto have hereunto set their hands and affixed their seals the day and year first above written.
    Julius Humphrey,
    Samuel Burgher,
    Wm. B. Coleman.”
    Under this lease mining operations were carried on by the defendants, or some of them, until about the commencement of this' action.
    In his petition, the plaintiff sets forth four causes of action.
    In the first cause of action, plaintiff avers that the defendants, under the lease, mined and removed from the land over 125,000 tons of good, merchantable coal, of 2,000 pounds each, estimating the same at miners’ weights, or according to the bills of the diggers, for which he was entitled to receive under the lease $12,500; that defendants have paid plaintiff a sum not exceeding $5,000, for all the coal mined since the date of the lease, and that the defendants have neglected and failed to'keep proper and accurate accounts of coal mined under the lease; that they have not kept said diggers’ bills or any true copies thereof; that the accounts, books and memoranda of said defendants, relating to the mining of said coal are, and have been from the commencement of said lease false, fraudulent and grossly inaccurate, and that said accounts of said defendants do not show the true amount of coal mined from plaintiff’s premises by the defendants; and that said accounts were so kept for the purpose of cheating and defrauding the plaintiff in the premises; and the plaintiff further avers that the original bills of the diggers for the coal mined, and also other original memoranda and statements showing the amount of coal mined by the miners have been destroyed by the said defendants for the purpose of cheating the plaintiff; and the said original memoranda, miners’ weights and bills of the diggers are not and have not been accessible to the plaintiff by reason of their destruction as aforesaid. The plaintiff further avers, that said Norton Coal Company is incorporated under the laws of Ohio; and that the said Julius Humphrey and William B. Coleman are members of said company, and have been since its organization; that on or about the 23d day of September, 1866,. the said Humphrey and Coleman in writing assigned said lease to the said Norton Coal Company; but, that the plaintiff was not consulted in the making of said assignment, nor has he at any time given his assent thereto, or released said Humphrey and Coleman, or either of them, from the terms of said contract.
    The second cause of action was for wrongfully extending the mining so near the dwelling house and other buildings as to injure them in violation of the provisions of the lease.
    Plaintiff in his third cause of action avers that the defendants wrongfully, negligently, carelessly and improperly conducted their mining operations, and so excavated the earth and removed the coal from said land as to cause the surface of said land in many places to sink down in deep holes whereby the same became and was greatly damaged.
    That the amount of land so destroyed by falling in, embraces about sixteen acres, and that the same by reason of, the premises has been rendered unfit for cultivation or plowing ; that by reason of the careless, wrongful and improper manner in which the said work was prosecuted by the defendants, the plaintiff has been damaged in the sum of $3,000.
    In his fourth cause of action, the plaintiff seeks to recover pay for the coal mined under the buildings at the rate of fifty cents per ton.
    The answers of the defendants aver that, of all the coal mined and removed, a correct account thereof was kept, and the books showing the weight of the coal mined and removed from said premises have been open to the inspection of the plaintiff at all times; said books showing the amounts mined by each digger and allowed in his bill, and that the plaintiff has been annually settled with by the defendants and paid the sum of ten cents for each ton of 2,000 pounds mined and removed from said premises as merchantable coal according to the bills of the diggers in pursuance' of the terms of the lease.
    The defendants deny every charge of fraud contained in the petition, and insist that the books are correct, showing the bill of each digger.
    The defendants deny the averments of the second cause of action except that they mined coal under the barn, but say that that was done with the knowledge of the plaintiff, and that he has received full compensation therefor.
    In answer to the third cause of action, the defendants deny that they wrongfully, negligently, carelessly and improperly conducted their mining operations, but on the contrary say, that the mining and removing of said coal has been done in a careful, workmanlike manner; that if any injury resulted to the surface therefrom, such injury is only the ordinary and natural injury that would arise from the mining and removing of said coal.
    To the averments in the fourth cause of action, the defendants interpose a general denial.
    To the defendants’ answer, the plaintiff replied by a general denial.
    The plaintiff, to sustain the issues on his part, and to maintain the allegations contained in the first cause of action of his petition, offered the testimony of a civil and mining engineer, and of coal miners, to show the thickness of the vein of coal of said farm, the number of acres actually mined and taken away by the defendants; the size, length, breadth and depth of the rooms in said mines, and the number of tons per acre for each and every acre so mined, excavated and removed by the defendants of good merchantable coal, and that in fact the coal actually mined was much greater in amount than shown by the books of the defendants. To all of which testimony, the defendants by their counsel objected, which objection was overruled, and the court thereupon allowed the said evidence to go to the jury, for the purpose of showing that the books and diggers’ bills and weights kept b}^ the defendants in their books and otherwise, were fraudulently kept or grossly inaccurate. And the court then and there cautioned the jury, that the said evidence was not permitted to go to them for the purpose of showing the quantity of coal actually mined as against the books and bills of the diggers kept by the defendants, but for the purpose of impeaching said books for fraud or gross inaccuracy, unless, in the event that such books and diggers’ bills were impeached for fraud or gross inaccuracy, when, the jur}^ might consider the evidence offered, to determine the quantity of coal mined. To which decision and direction of the court, so limiting said evidence, the plaintiff by his counsel then and there excepted.
    The plaintiff, to further maintain the action on his part, and to maintain the issues of his third cause of action, offered evidence to show that the defendants in mining and removing said coal under their said lease, also removed all the pillars, ribs of coal, and supports whereby the surface was supported, and that by reason of the removing of said pillars, ribs of coal and supports, the surface of the ground caved in, swagged, and fell in deep holes, whereby the said surface of the plaintiff’s land was greatly damaged, and was thereby rendered wholly unfit for plowing and cultivation. And thereupon the defendants, in answer to the claim for damages on said third cause of action, introduced witnesses, and offered to prove by them, that the mining and removing of said coal was done in a careful and prudent manner, and in accordance with the best and most approved method of mining and removing coal, and that it was the approved method of mining coal, to mine and remove all the coal without leaving pillars, ribs, or supports for the surface, and that the defendants mined coal from the plaintiff’s said premises under said lease, and removed said pillars and supports in a careful and prudent manner, and in the best and most approved method. To all of which evidence showing or tending to show such approved method of mining, by which the pillars and ribs of coal were drawn, and all supports of the surface removed, the plaintiff by his counsel then and there objected, on the ground, that the plaintiff was entitled to have the surface supported by sufficient pillars, ribs and supports to keep it up, and that such method would not be reasonable, and could not be shown to deprive the plaintiff of his right of surface support. But, the court overruled said objection, and admitted said evidence, to which decision of the court in overruling said objection and admitting said evidence, the plaintiff by his counsel then and there excepted.
    The plaintiff produced a witness, and offered to prove the allegations contained in his fourth cause of action as to the quantity and value of the coal mined and removed from under the barn and dwelling-house, contending that such coal was exempt from the mining operations provided for in the lease, and that its value was not fixed by the price put upon the other coal mined under the lease, but, the defendants objected to the introduction of any evidence by the plaintiff in support of said fourth cause of action, which objection was sustained by the court, and the plaintiff was not allowed to offer any evidence in support of the allegations in said fourth cause of action. To which decision of the court, excluding said evidence, and all evidence under said fourth cause of action, the plaintiff by his counsel thereupon excepted.
    The court thereupon proceeded to charge and instruct the jury. And the plaintiff then and there excepted to all that part of said charge and instruction, in which the court uses the following language, to wit: “ I say to you further, that unless this mode pointed out in the contract for determining the weights and the amount to be paid be impeached for fraud, then the contract must prevail, and must determine the rights of the parties.”
    And the plaintiff further excepted to all that portion of the charge of the court in which the jury were instructed, that unless the books and diggers’ bills kept by the defendants were first impeached for fraud, the jury must take such diggers’ bills exclusively to determine the quantity of coal mined, and that all the other evidence in the case bearing upon or tending to show the quantity of coal mined, must be taken and considered exclusively for the purpose of showing whether the diggers’ bills and the books of defendants were or were not honestly kept.
    And thereupon the jury found a verdict, together with special findings, as then and there directed by the court. Under the 1st cause of action, the jury found for the defendants; under the 2d cause of action, for the plaintiff, and assessed his damages at $500; under the 3d cause of action, for the plaintiff, and assessed his damages at $1,658.33; and under the 4th cause of action, for the defendants. In their special findings, by way of response to certain questions in writing propounded to them by direction of the court, the jury found, That the books kept by the defendants were not fraudulent or grossly inaccurate; that the damage done to the dwelling-house and barn by mining and removing coal amounted to $500; that there was no negligence or carelessness in mining the coal which caused the surface to fall in, other than the removal of the ribs and pillars; that the ribs and pillars were removed in a proper and reasonable manner, if the defendants had the right to remove all the coal from under the land, without reference to any support for the surface; that the damage done to the surface of the land by mining and removing coal, amounted to $1,658.33, and that the defendants’ mined, digged and carried away the coal and slack underlying the plaintiffs’ land, without leaving ribs, pillars, posts or supports to keep up said surface.
    Judgment was rendered on the first, second and fourth causes of action in accordance with the verdict; but the court, upon motion of the defendants, rendered judgment in their favor on the third cause of action, notwithstanding the verdict.
    A bill of exceptions was taken and allowed, embodying a portion of the evidence, and the charge of the court in full. A petition in error was filed by Samuel Burgner in the district court, where the questions arising in the case were reserved and sent to this court for decision.
    
      Kohler & Sadler and Voris & Voris, for plaintiff in error.
    
      The lease of the coal carries with it the right to open the mines and explore, and if coal is found, to dig and remove it. But the mine owner has no right to remove all the coal, including props and pillars, unless the owner of the surface has by express grant or agreement released the right of support. Humphries v. Brogden, 1 Eng. L. & Eq., 241; 1 Washburn on Easements, 558; Smith v. Darley et al., 3 Eng. R., 281; Wood on Nuisance, 184; Rickman v. Gillis, 57 N. Y., 68; s. c. 15th Am. R., 464; Marvin v. Brewster, 55 N. Y., 538; s. c. 14th Am. R., 322 ; Jones v. Wagner, 66 Penn., 429; Horner v. Watson, 79 id., 242; Rogers on Mining, 455; Chadwick v. Coleman, 80 Penn., 81; 31 Am. R., 150; 12 Eng. R., 773; 3 id., 458; 24 Pa. St., 392; Cin. Law Bull, for March 12, 1883; Smart v. Morton, 3 E. L. & Eq., 485; Brown v. Torrence, 88 Pa. St., 186; Carlin v. Chappel, 101 id., 348; Wilms v. Jess, 94 Ill., 464; s. c. 34 Am. R., 242; Livingston v. Coal Co., 46 Iowa, 369; Yandes v. Wright, 66 Ind., 319; s. c. 42 Am. R., 109; Blanchard & Weeks’ Leading Cases on Mines, 616, et seq.
    
    
      W. H. Upson and N. B. Tibbals, for defendants in error.
   Dickman, J.

The contract of lease provided that the number of tons of merchantable coal mined and removed from the land should be determined bjr reference to the bills of the diggers, and that the books of the lessees, showing the weight of the coal, should be open at all times, during business hours, to Burgner or his agents. A definite and primary mode of determining the quantity of coal mined was thus agreed upon by the parties to the contract. It was alleged, however, by the plaintiff, and denied by the defendants in the court below, that the original bills of the diggers had been destroyed by the lessees for the purpose of defrauding the lessor, and that-the books, accounts and memoranda of the lessees, relating to the mining operations, were and had been from the commencement of the lease, false, fraudulent and grossly inaccurate. Under this issue the court properly ruled that the evidence of civil and mining engineers and coal miners as to the thickness of the vein of coal on the farm, the number of acres mined, and the number of tons which each acre should yield, might go to the jury, primarily, for the purpose of showing that the books of the lessees and the bills of the diggers were fraudulently kept or grossly inaccurate. If, upon comparing the quantity of coal mined, as ascertained by the estimates or surveys of engineers and miners, with the quantity mined as shown by the books and bills, so great a disparity appeared as to impeach the books and bills for fraud or gross inaccuracy, the jury, under the charge of the court, fairly interpreted, could then resort to such estimates or surveys as a standard for determining the actual quantity of coal mined. In thus ruling, and in so instructing the jury, we think there was no error, and that no ground was thereby furnished for reversing the judgment rendered on the first cause of action.

The question arises on the record, whether, upon a proper construction of the contract of lease, and in accordance with settled legal principles, the lessor was entitled to protection by the lessees against a subsidence of the surface of the land. It is contended by the latter that they had the right, by the terms of the lease, to remove all the coal in, under or upon the farm, without leaving ribs, pillars, posts, or supports to keep up the overlying soil, provided they exercised due care in the removal of such supports of the surface lands. The lessees, at the trial, offered evidence for the purpose of proving that it was the approved method of mining coal to mine and remove all the coal without leaving pillars, ribs or supports for the surface, and that they had removed the pillars and supports from under the lessor’s lands in a careful and prudent manner, and in the best and most approved method. This evidence was admitted, though objected to by the lessor on the ground that under a proper construction of the lease, and by well settled legal principles, he had the right of subjacent support, adequate to maintain the surface in its natural state, and could not be deprived of it, by reason of the ribs and pillars having been taken away, in a careful and skillful manner. During.the trial the court reserved the point, but the jury having returned a verdict for the lessor for the amount of .damage found to have been done to the surface of the land, as they had also specially found that the ribs and pillars had been removed in a manner proper and reasonable, the court rendered judgment for the lessees, notwithstanding the verdict, on the third cause of action, holding that the lessees had the right to remove all the underlying coal without leaving any support to prevent a subsidence of the surface.

It seems to be well settled, that when one owning the whole fee, grants the minerals, reserving the surface to himself, his grantee will be entitled only to so much of the minerals, as he can get without injury to the superincumbent soil, unless, the language of the instrument clearly imports, that it was the intention of the grantor to part with the fight of subjacent support. Humphries v. Brogden, 1 E. L. & Eq., 241; Davis v. Treharne, 6 Law Rep., 460, (H. L. Appeal Cases, 1881) ; Coleman v. Chadwick, 80 Pa. St., 81; Jones v. Wagner, 66 id., 429; Harris v. Ryding, 5 Mee. & W., 60; Zinc Co. v. Franklinite Co., 13 N. J. Eq., 322, 342; Smart v. Morton, 5 Ell. & Bl., 30. The owner has a natural right to the use of his land, in the situation in which it was placed by nature, and if the surface of the land and the minerals beneath belong to different owners, the owner of the surface is entitled to have it supported by the underlying mineral strata, and, an action may be maintained against the owner of the minerals, for the damages sustained by the subsidence. Each owner must so use his own, as not to injure the property of the other. The subjacent support should be such as will preserve the integrity of the surface; but, if the mineral strata are. not essential, to prevent the subsidence of the upper soil — if the soil above, is such as not to require their support, the underlying minerals may be entirely removed by their owner, without liability to an action for so doing.

This obligation to protect the superincumbent soil, exists whether there is a conveyance of the surface reserving the minerals, or a grant of the minerals, without a conveyance of the surface. In either case, the presumption arises, that the owner of the minerals is not, by removing them wholly or in part, to injure the owner of the soil above. According to the doctrines held by the courts, as summarized by an approved text writer, the right which the surface has to support, is a part of the freehold and not an easement. It is a right independent of the nature of the strata, and the mine owner can only work so far as is consistent with this right, and is liable if he violates it. The highest care and skill in the working of the mine, is no defense whatever, if injury results to the surface, from a removal of the subjacent strata. Woods’ Law of Nuisance, sec. 197, and cases cited.

If the grantee or lessee of a mineral estate, desires to be discharged from the servitude of leaving a sufficient support to the superincumbent estate, he should secure such relief by plain and explicit language in the contract, or, the contract should contain something from which the intention to discharge him from his obligation, will appear by necessary intendment. In Davis v. Treharne, supra, it was said by Lord Watson, “When a proprietor of the surface and the subjacent strata grants a lease of the whole or part of his minerals to a tenant, I think it is an implied term of that contract, that support shall be given in the course of working to the surface of the land. If it is not intended that that right should be reserved, the parties must make it very clear upon the face of the contract; in other words, they must express their intention so clearly, as to enable a court to say that such intention is plain.” And in the same case, Lord Blackburn said, “In common right the person who owns the surface has a right to have it properly supported. A court of law has to look at the documents to-see whether the parties have agreed upon something different from the common right. But, whether they have done so or not, is a question turning upon the construction of the documents.”

It becomes, therefore, a subject of inquiry, whether the language of the contract between Burgner and Humphrey et al., when reasonably construed, clearly authorized the lessees to remove the pillars or supports, though necessary to prevent a subsidence of the surface, for, it is established beyond dispute, that the ribs and pillars were indispensable to the support of the soil above, as evidenced by the damage resulting from their removal. There is nothing in the lease to indicate that Burgner left it optional with his lessees, whether they would or not, after finishing their mining operations, leave the surface of his land in an unfit condition for agricultural purposes. In construing the instrument, reference should be had to the uses to which the property had been applied, and to its present and intended use. We do not reach the conclusion, that because Burgner, by the terms of the lease, saw fit to guard his dwelling house and barn from being injured by extending the mining operations too far, he thereby gave a license to the lessees to so conduct their mining operations, as to cause a large portion of his farm to cave in, swag, and become wholly useless for plowing or cultivation, and that too, without any recompense for the damage done, save the royalty on the coal mined and removed. That the intention to dispense with subjacent support, should be manifested by clear and unequivocal language in the deed or lease, is illustrated in. the case of Livingston v. Moingona Coal Co., 49 Iowa, .369. In that case there was a reservation in the deed of all coal and coal mines, with full right to mine the same b3r such means as might be deemed proper, “ without thereb3r incurring in any event whatever, any liability for injury caused or damage done to the surface of the land in working .coal mines, minerals,&c.” Under this reservation, the court held, that the defendants were bound to leave pillars or ribs of coal, if necessary to support the surface, and if they were negligent in their operations, or in not having left such ribs, whereby the land was injured, they were liable for the consequent damages.

It is urged that Burgner, by the lease, conveyed “ all the mineral coal,” and meant that it might all be taken away, without regard to the effect of its removal upon the overlying soil. Baron Parke, in Harris v. Ryding, supra, in commenting upon the right of the surface owner, says: “ I do not mean to say that all the coal does not belong to the defendants, but that they cannot get it without leaving sufficient support.” Doubtless, Humphrey and Coleman had the right to mine and remove the coal, so far as they could, consistently with Burgner’s surface rights; but if, notwithstanding the need of support to the soil, they resolved to remove the natural props and pillars, it was incumbent on them to substitute artificial supports, if, by so doing, they could preserve the integrity of the surface.

In the case at bar we do not think that the rights of Humphrey and Coleman in reference to the ribs and pillars were enlarged by reason of their claiming under a lease instead of a grant. It is suggested that the lessor contemplated the mining and removal of the largest quantity of coal practicable, as thereby he would receive the largest benefit in the shape of royalty, and that, in that view, provision had been made in the lease for the payment of a minimum rent, requiring the lessees to mine each year a quantity of coal sufficient to yield in royalty at least the sum of one hundred dollars. While it is true that the lessor’s royalty would be in proportion to. the coal taken out, we find nothing in the lease from which it may be inferred that he intended to increase his royalty at the risk of irreparably damaging a large portion of his farm. And as to the clause reserving a minimum rent, there is no evidence of such advantages arising therefrom to the lessor as to establish a grant to the lessees by implication, of the right to mine and remove all the coal without leaving any surface supports, either natural or artificial. Besides, the minimum rent was liable to be discontinued at any time by the 'lessees by virtue of the clause in the lease, “ It is mutually agreed that said parties of the second part shall have the privilege of cancelling and surrendering this lease at any time upon payment of the amount due thereon at that time.”

Burgner, by the lease, gave the right, privilege and license to enter upon the lands, and search and explore for mineral, coal, etc., “ and when found to exist on said lands, to dig, mine and remove the same therefrom, together with all and singular the rights, privileges, licenses and easements, necessary or incident, or in anywise appertaining to the proper prosecution of the business of mining and removing any or all minerals and substances aforesaid.” In our judgment, a clause of this kind cannot properly be construed into an enlargement of the power, so to deal with the mine as to let down the surface. In Davis v. Treharne, supra, words of similar import were construed as not enlarging the power to so mine as to cause a subsidence of the superincumbent lands.

The contract of lease under consideration contains the clause, “ It is also agreed that no mining operations by the parties of the second part, their heirs or assigns, shall extend to, or be so near, the dwelling house or barn now upon said land as to injure said buildings.” In our view, this provision exempted the coal under the buildings from the mining operations authorized by the lease. While it was not permitted to destroy or sink the surface of any portion of the farm by failing to leave the necessary supports, from an abundance of caution, the land underlying the lessor’s dwelling house and barn was to remain entirely intact. It seems clear that the lessor was especially desirous that his dwelling house and barn should not be subjected to any of the possible risks of excavation, and he therefore sought to protect them against all contingencies by inserting the above clause in the lease. And the court properly charged the jury that having no right to mine there, it was of no consequence to ascertain whether the lessees did it carelessly and negligently, or otherwise; “that they had no right to mine under those two buildings.” The lessees wrongfully extended their excavations to and under the buildings, and wrongfully invaded the body of coal underlying the same. Exempt as such coal was from any mining operations under the lease, the lessees could not legally claim that the lessor should be limited to the price fixed by the contract for coal mined elsewhere on the premises. In determining the quantity of coal mined' and removed from under the buildings, the lessor not being bound by the diggers’ bills or books of the lessees, he should have been permitted to introduce other evidence, under his fourth cause of action, to prove the quantity of coal so mined and removed, and the ne.t value thereof at the mine at the time of its removal, irrespective of the price put upon other coal, by the terms of the contract. While the lessor is entitled to be indemnified for the damage caused to his buildings by removing the subjacent coal, such indemnification is not to be confounded with compensation for the coal itself.

. We are of opinion, therefore, that the judgment of the court of common pleas on the first and second causes of action should be affirmed; that the judgment on the third cause of action should be reversed, with an entry of judgment for the plaintiff in error; and that the judgment on the fourth cause of action should be reversed, and the cause remanded for a new trial. .

Judgment aeeordingly.  