The Scranton tribune. [volume] (Scranton, Pa.) 1891-1910, 1900-04-03

If the mineral reservation clause in
a deed for a surface lot specifies that
the miner can take out all the coal
without being liable to damage to the
surface, court can not prevent him
from robbing pillars, even though such
mining should cause great damage to
the surface owner.
Such Is the decision handed down
yesterday by Judge Edwards in the
case of Dennis McDade and others
of Dunmore against A. d. & F. NJ.
spencer. AS many of the properties
all through this valley were decided
with a similar reservation, the decision
is of much moment 1t is the first
time the question has been passed
upon.
The plaintiffs are lot owners in Dun
more. They complain that the de-
PENDANTS are mining coal from under
their lots and properties adjacent
thereto without leaving sufficient sup
port under the surface, and are taking
out the pillars thereby removing the
supports usually and ordinarily left in
mining COAL and which are necessary
for the safe maintenance of the sur
properties of the plaintiffs are being
injured and may ultimately be de-
destroyed.
The answer of the defendants, in
substance, AYERS that they have a right
to mine all the coal: that they are
not bound to support the surface, and
that the plaintiffs have not, in pur-
chasing their respective lots, acquired
any right to surface support, but that
all claims for injury to the surface or
improvements thereon erected. by rea-
son of failure to provide such sup
port, incidental to the removal Of all
the coal beneath the surface, were ex-
pressly waived in the several convey
ances of their lots to the plaintiffs
made by their grantors.
BY the terms of the conveyances
through which the plaintiffs derive til
tie, the coal and minerals beneath the
surface are excepted and reserved in
the following language: Excepting
and reserving to Edward Spencer, his
heirs and assigns, all coal and minerals
beneath the surface of said lot of land,
with the sole and exclusive right to
mine and remove the same by any
subterranean process. without thereby
incurring, in any event whatever, any
liability for injury caused or damage
done to the surface of said land or to
the buildings or Improvements which
now are or hereafter may be erected
thereon"
After a lengthy discussion of the
law in the case, Judge Edwards states
the following propositions as being COR
| rect:
/. Where there has been a separation
| of the minerals from the surface, the
owner of the mineral estate, in the alb
| scnce of an agreement to the contrary,
| owes a servitude to the superintendent
estate of sufficient support.
>. There is no custom of mining which
! permits the owner of a mineral estate to
remove the supports and allow the sur
face to sink, This proposition is not in
! volved in the case at bar.
3. The implied right of support 10 the
| surface may, however, he excepted from
! the grant by apt words in the deed, and
| where such exception has been made,
! the grantor or those who claim under
him may mine all the coal, even though
by such mining the surface may fall in.
! Applying these to the case at bar, he
makes the following formal finding;
| The exception in the conVeyances
| from Edward Spencer to the plaintiffs
Is in such terms and is of such char
acter as to modify the general rule of
| law as to surface support, and pre-
cludes the plaintiffs from the recovery
of damages for injury done to their
| properties by the defendants on ac-
count Of the removal OF the coal be-
meath the surface"
| He then dissolves the preliminary
injunction at the cost of the plaintiffs