#### Moore *v.*The Indian Camp Coal Company. Patton *v.*The Emma Coal Company.

*Sale of mineral lying under surface*— Title *obtained by owner, an estate in fee*— Sale *carries right to remove strata, etc.*— Space *left by removal of mineral, etc., belongs to mine owner*— If *such user does no injury to surface*— Law *of contracts*— Right *of property.*

I..When there has been a sale of the mineral lying under land and a severance of the estate in the mineral from the estate in the surface, the title thus obtained by the owner of the mineral is an estate in fee, which terminates when the mine has been exhausted.

2. Such a sale of the mineral and severance of estate carry the right to remove or use so much of the containing strata, above and below, as may be reasonably required for the proper mining of the mineral.

3. When there are no restrictions in the grant, reservation or exception which creates the estate, the space which may be left by the removal of the mineral and by the removal of so much of the containing strata as may be reasonably required for the operation of mining, remains a part of the property of the mine owner until the exhaustion of the mine, and may be used by him during the continuance of the estate as he may see fit, provided that such user does no injury to the surface; and this includes the right to haul mineral and drain water through such space from other mines.

(Nos. 9674 and 10150

Decided February 5, 1907.)

No. 9674, error to the Circuit Court of Guernsey County.

No. 10150, error to the Circuit Court of Jackson County.

The case of *Moore*v. *The Indian Camp Coal Company*originated in the court of common pleas of Guernsey county with a petition for an accounting and for a perpetual injunction *494against the defendant, among other things, from using for the transportation of coal from other lands any of the entries or channels driven in and under plaintiff’s premises. The Coal Company defended its right to haul coal from other lands through the mines underlying the plaintiff’s premises under a grant to James Glenn and others, their heirs and assigns, of all the coal in and under a certain ninety acres of land, more or less, including the premises of the plaintiff, together with the exclusive right to enter thereon for the purpose of mining or operating for coal, to open mines, sink and erect all needed air shafts, erect, maintain and remove all structures and machinery necessary for mining, production and storage of coal. The hearing in the court of common pleas resulted in a finding in favor of the Coal Company upon the issue as to the right to haul coal from adjoining mines, and the court made the following finding of facts: “8. At the beginning of this suit and for a long time prior thereto, defendant knowingly was hauling through and under the lands described in the petition, by means of the entries of its mines thereunder, coal from adjoining lands, owned by persons other than plaintiff or said Nelsons, or either of them. Said entries under plaintiff’s lands, through which said hauling has been done, have been made through the stratum of coal, which is from four to five feet in height, and said entries have been made by defendant higher than the height of said coal by removing overhead the strata overlying the coal and by removing below the strata underlying said coal; and said haulage has been done, and at the beginning of this suit was doing, through *495said entries, upon tracks laid by defendant, in and upon the strata underlying said coal, the whole of the coal in said entries having been removed by defendant. Said hauling was done without the consent and against the will of the plaintiff. Unless the facts stated in this respect show damage or injury to the residue of plaintiff’s said lands from such haulage, there is no evidence th'at such hauling has done or is doing or will do, or has caused or is causing or will- cause any damage or injury to said residue.” Upon this finding the court rendered judgment in favor of the defendant; as to the right of hauling through said mines from adjoining premises. Upon an appeal to the circuit court, that court made the same finding as was made in the court of common pleas, and likewise rendered judgment for the defendant, and to reverse the judgment of the circuit court the case is brought to this court.

The case of *Patton*v. *The Emma Coal Company*comes, up on a petition in error to reverse the ’ judgment of the circuit court of Jackson county, and also the judgment of the court of common pleas, upon a' demurrer to the petition involving the same question as the preceding case. The grant in .this case under which the Emma Coal Company defends is a grant by Nancy M. Sutherland, as the sole devisee of T. P. Sutherland, deceased, and James Tripp, by which the grantors sold and conveyed in fee simple to The Emma Coal Company all the coal remaining on said quarter section described therein, and all the rights and privileges once excepted and reserved by T. P. Sutherland and James Tripp aforesaid in their deed to Caroline Nunnally, and by virtue thereof *496the Company has ever since the 24th of January, 1898, claimed the right to use and occupy the entry or way under the lands of the plaintiff for hauling coal from adjoining mines. The grant aforesaid to the said Caroline Nunnally is as follows: “Excepting all the stone coal underlying said land and excepting ten acres off of the east side of said quarter section and so to be selected and surveyed off as to include all the buildings belonging to the Alice Company, and the coal banks and railroad switch and to extend north on the east line far enough to include such buildings, banks and railroads with the privileges also of opening other mines to mine and remove said coal with air shafts and the use of all roads belonging to said lands both ways from said mines as now opened or hereafter established.” The coal has not been exhausted in said grant; but the petition in this case alleges that the Emma Coal Company has' been, and is now, making use of old entries and excavated space under plaintiff’s land for the purpose of hauling coal and piping water from other mines, without the plaintiff’s consent and against her protest. The court of common pleas sustained the demurrer to the petition and the circuit court affirmed that judgment.

*Mr. Fred L. Rosemond*and *Messrs. Brenan & Middleszvart,z,*for Moore, plaintiff in error, cited and commented upon the following authorities:

*City of Pomeroy*v. *Buckeye Salt Co.,*37 Ohio St., 520; *Baker*v. *Rice,*56 Ohio St., 463; 2 Washburn on Real Property, Chap. 1, par. 16, *497p. 288; *Meredith*v. *Frank et al.,*56 Ohio St., 489; *Spencer*v. *Curtiss,*15 Conn., 39; *Robinson*v. *Clapp,*65 Conn., 365; 29 L. R. A., 582; 2 Washburn on Real Property, 3d Ed., Chap. 1, Section 3, par. 9, p. 30; *McCabe*v. *Hood,*5 Cir. Dec., 292, 13 C. C., 621; *Base Lake Co.*v. *Hollenbeck et al.,*5 Cir. Dec., 242, 11 C. C., 518; *Allen*v. *San Jose Land & Water Co.,*15 L. R. A., 93; *James*v. *West, Admr., et al.,*67 Ohio St., 28; *Springer*v. *Avondale,*35 Ohio St., 620; *Lillibridge et al.*v. *Lackawanna Coal Co.,*143 Pa. St., 293, 13 L. R. A., 627, 24 Am. St. Rep., 303; *Webber*v. *Vogel,*189 Pa. St., 158; *Proud*v. *Bates,*34 L. J. Ch., 406; *Pollock*v. *Cleveland Ship Bld. Co.,*56 Ohio St., 655.

*Mr. J. M. McGillivray; Mr. Charles S. Turnba%igh; Mr. Thomas E. Duncan; Mr. J. W. Barry*and *Mr. L. K. Powell,*for the Indian Camp Coal Co., defendant in error, cited and commented upon the following authorities:

Jones on Real Property, Section 537; *Sloan et al.*v. *Lawrence Furnace Co.,*29 Ohio St., 568; *Tod*v. *Stambaugh,*Ohio St., 469; *Edwards*v. *McClurg,*39 Ohio St., 41; *Newark Coal Co.*v. *Upson,*40 Ohio St., 17; *Wadsworth Coal Co.*v. *Silver Creek Mining & Ry. Co.,*40 Ohio St., 559; Barringer & Adams on Mines & Mining, 585; *Lessee of Sperry*v. *Pond et al.,*5 Ohio, 390; *Webber*v. *Vogel,*189 Pa. St., 156; *Paine*v. *Griffiths et al.,*86 Fed. Rep., 452; Bainbridge on Mines & Minerals, 145; MacSwinney on Mines, 67, 269; *Junction Railroad Co.*v. *Ruggles,*7 Ohio St., 8; 2 Snyder on Mines, Sections 927, 995, *4981002, 1010, 1016 and 1128; *Lillibridge et al*v. *Lackawanna Coal Co.,*143 Pa. St., 293, 24 Am. St. Rep., 544; *Consolidated Coal Co.*v. *Schmisseur,*135 Ill., 371; *Hamilton*v. *Graham,*L. R. R. Sc. & D., 166; *Proud*v. *Bates,*34 L. J. Ch., 406; *Louisville & Nashville R. R. Co.*v. *County Court of Davidson Co.,*1 Sneed (Tenn.), 637; *Chartiers Block Coal & Coke Co.*v. *Mellon,*152 Pa. St., 286; Section 2792, Revised Statutes.

*Mr. S. F. White,*for Patton, plaintiff in error, cited and commented upon the following authorities:

Barringer & Adams on Mines & Mining, 131; *Detlor et al.*v. *Holland,*57 Ohio St., 503; *Meredith*v. *Frank et al.,*56 Ohio St., 479; *Webber*v. *Vogel,*159 Pa. St., 235, 189 Pa. St., 156; *Wadsworth Coal Co.*v. *Silver Creek Mining & Ry. Co.,*40 Ohio St., 559; *Edwards*v. *McClurg,*39 Ohio St., 48; *Stambaugh, Exr.,*v. *Smith,*23 Ohio St., 591; *Lillibridge et al.*v. *Lackawanna Coal Co.,*143 Pa. St., 235; *Burnger*v. *Humphreys,*41 Ohio St., 340; Jones on Easements, Section E 355 to 359, 814, 347; *City of Pomeroy*v. *Buckeye Salt Co.,*37 Ohio St., 520; Bouvier’s Law Dictionary; *Chartiers Block Coal & Coke Co.*v. *Mellon,*152 Pa. St., 286; *Lessee of Ludlow’s Heirs*v. *McBride,*3 Ohio, 258; *Northwestern Ohio Natural Gas Co.*v. *Davis et al.,*9 C. C., 551; *Bass Lake Co.*v. *Hollenbeck et al.,*11 C. C., 508; *McCabe*v. *Hood,*13 C. C., 621; *Pollock*v. *Cleveland Ship Bld. Co.,*56 Ohio St., 655; *Tootle*v. *Clifton,*22 Ohio St., 247; *Consolidated Coal Co.*v. *Schmisseur,*135 Ill., 371; 2 Snyder on Mines, 857; *Converse et al.*v. *Haw**499*kins,*31. Ohio St., 210; Section 296, Revised Statutes.

*Messrs. McGillivray & Armstrong,*for The Emma Coal Co., defendant in error, cited and commented upon the following authorties:

*Wadsworth Coal Co.*v. *Silver Creek Mining & Ry. Co.,*40 Ohio St., 559; *Consolidated Coal Co.*v. *Schmisseur,*135 Ill., 271; *Detlor et al.*v. *Holland,*57 Ohio St., 503; *Burgner*v. *Humphrey*41 Ohio St., 340;

Davis, J.

This court has several times recognized and applied the doctrine that there may be a complete severance of the ownership of the surface of land from the ownership of the different strata of mineral which may underlie the surface; and that the creation of a separate interest in the mineral with the right to remove the same, whether by deed, grant, lease, reservation or exception, unless expressly restricted, confers upon the owner of the mineral a fee simple estate, which is of course determinable upon the exhaustion of the mine. The last utterance upon this subject was in *Gill et al.*v. *Fletcher*74 Ohio St., 295.

The grant of such an estate in the mineral; in whatever form, necessarily implies the right to or remove such portions of the containing strata as may be necessary or proper for the convenient and proper removal of the mineral itself, having regard at the same time to the right of the surface owner to sub-jacent support. This is strikingly manifest in both of the cases at bar. In one of these it appears that the coal vein in the field in which the Indian Camp Coal Company is *500operating averages about four feet in thickness; and in the other that the coal vein where the Emma mine is located is from thirty to thirty-eight inches 'in thickness. It is evident that if the mine owner is to be restricted to the exact limit of the thickness of the vein of mineral, with no right to remove any portion of the superimposed strata for necessary headway in working or in making the mine secure, or with no right to use or remove any portion of the underlying strata for drainage, support for tramways and the like, the grant to him of ownership in the mineral would be of little practical value, or none at all. .

From the nature and purposes of an ownership such as we have described above, it follows that the mine owner has the right to use as he may choose, but without injury to the owner of the soil, the space left by excavation of the mineral, so long as it remains a mine; that is to say, until the mineral shall be practically exhausted. It results from the absolute proprietorship over the mineral in place, that the owner thereof has a like interest in the containing chamber until the termination of the estate. MacSwinney on Mines, 9-11, 67-69. The phrase, “containing chamber,” as used in the books, is simply a convenient expression for the limits or boundaries of the grant. The grant is an entirety and the estate thereby created is determinable as a whole upon the contingency of the exhaustion of the mine. It is therefore illogical and inconsistent, and. would be impracticable and unjust, to hold that as fast as the mineral is taken put, the resulting empty space should revert to the owner of the upper strata. Such a narrow and technical interpretation of the grant would result in em*501barrassments to the mining industry which would be intolerable. The empty space is, therefore, not merely property which may be used as an incident to the removal of the mineral included in the grant; but, as suggested by the author cited above, he may use the space created by removal of mineral within the grant, as a way for the carriage of minerals from his adjoining .lands; or, if he prefers to do so he may cut a passage through the minerals and use it for the carriage of minerals from his other lands., MacSwinnev on Mines, 67-68. . .

In creating a separate mining right a grantor may, of course, protect himself by restrictions; but in the absence of such restrictions we think that the rulings in *Lillibridge et al.*v. *Lackawanna Coal Co.,*143 Pa. St., 293; *Webber*v. *Vogel,*189 Pa. St., 156; *Consolidated Coal Co.*v. *Schmisseur,*135 Ill., 371; *Hamilton*v. *Graham,*L. R., 2 Sc. & Div., 166; *Proud*v. *Bates,*34 L. J. Ch., 406, 411, are sound law and should be followed.

Learned counsel have attempted to reason out these cases for. the plaintiffs in error upon the canons of the law of easements. The right which is claimed by the defendants in error is not an easement, which is a right or burden in, upon or over the estate of another; for here the defendants claim, as we have endeavored to make clear, the right to use. *their own*property as a wa)r for transporting coal mined on adjacent estates.

The judgments of the courts below are *affirmed.*

Sitauck, C. J., Price, Crew and Summers,. JJ., concur.