In every view of this case, there is no legal ground on which the plaintiff's action can be supported. We do not now decide on the authority due to the case in Keilway; but if an action on the case should come before us founded on that report, it will deserve a further and full consideration. The plaintiff must be called.
31 Pennsylvania State, 475. - 1358.
Caldwell sues Fulton for digging and taking away 20,000 bushels of stone coal from under his lands. Caldwell's ancestor had conveyed to one Greer sixteen acres of the tract and " also the full right, title and privilege of digging and taking away stone coal to any extent the said Greer may think proper to do, or cause to be done under any of the land now owned and occupied by the said Caldwell; provided, nevertheless, the entrance thereto, and the discharge therefrom, be on the foregoing described premises."
Greer afterwards conveyed an undivided half of the sixteen acres and of the coal to a third party. Fulton has taken coal under a lease from the owner of one of the undivided shares. Plaintiff claims that the sale of a half interest extinguished the right to take coal. Judgment for defendant. Plaintiff appeals to this court.
Strong, J. - This record presents the same question which was here at October Term, 1855, in an action between the same parties. The writ of error is designed to bring under review the adjudication which was then made. At that time, this court was of opinion that the deed from Caldwell to Greer was an absolute and exclusive conveyance of all the coal under the grantor's land, and not a mere license, or incorporeal hereditament. Such a construction of the deed is supposed to have been erroneous, and we have heard an earnest and able argument in support of the opposite interpretation.
The question is all-important to the rights of the parties; for, if the interest of the grantee is incorporeal, and not exclusive, it is necessarily indivisible; and Greer, having divided it by his own act, by alienation of part, extinguished it. 4 Co. 1; Van Rensselar v.
Radcliffe, 10 Wend. 639. On the other hand, if the deed was a grant of all the coal, it might be conveyed without extinction of the right, either in entirety or in parts. The deed conveys in fee two tracts of land, and in its granting part, after describing the tracts by metes and bounds, adds, "also the full right, title, and privilege of digging and taking away stone coal, to any extent the said George Greer may think proper to do, or cause to be done, under any of the land now owned and occupied by the said James Caldwell; provided, nevertheless, the entrance thereto, and the discharge therefrom, be on the foregoing described premises." Then follow the habendum and covenants of warranty, in one of which this subject of the grant is called " the aforesaid right to the stone coal," and in the other "the right of stone coal hereby given." The consideration mentioned is single, for the entire subject conveyed by the deed. It is to be observed in the description of the thing granted, that there are no limits fixed upon the extent to which coal might be taken from the land then owned and occupied by the grantor. The grantee's right was coextensive with his will; not necessarily to be exercised by himself, but one which might be enjoyed by others whom he should authorize. No form of words other than those employed could have given him larger dominion.
Coal and minerals in place are land. It is no longer to be doubted that they are subject to conveyance as such. Nothing is more common in Pennsylvania than that the surface right should be in one man, and the mineral right in another. It is not denied, in such a case, that both are landowners, both holders of a corporeal hereditament. Our English ancestors, indeed, found difficulty in conceiving of a corporeal interest in an unopened mine - separate from the ownership of the surface - because livery of seisin was in their minds inseparable from a conveyance of land, and livery could not be made of an unopened mine. The consequence was, that they were disposed to regard such rights as incorporeal, though they are not rights issuing out of land, but the substance itself. In this State, however, livery of seisin is supplied by the deed and its registration, and there is nothing incongruous in considering a grant of the substratum a grant of land, as much as is a conveyance of the surface itself. It is often by far the most valuable, and sometimes embraces all for which the land is worth owning. Even in England, so long ago as the reign of James I., it was held that ejectment would lie for a coal mine. Comyn v. Wheatly,Cro. Jac. 150. It was objected that it was beneath the soil, and that an habere facias could not be made thereof; but the objection was disallowed. Yet, ejectment cannot be sustained for an incorporeal hereditament, except, perhaps, in the case of a common appendant or appurtenant. With us, unfettered as we are by the necessity of livery of seisin, and abounding in mineral districts, I am not aware that it has been seriously doubted that the ownership of a coal bed or seam is a corporeal interest in land. Cases not unfrequently occur in which the owner of lands sells merely the surface right, retaining the minerals which lie in place below the surface. Now, as his whole interest was corporeal before the sale, and as by his deed only the surface passed, that which remains ungranted must be corporeal. This proposition needs no further argument, and it has not been questioned in the discussion before us. In Turner v. Reynolds, 11 Harris, 199, a plaintiff in ejectment was allowed to recover a coal mine which he had described in his writ as land, and this, though his title was under a conveyance to him, not of the tract of land, but of the coal.
If, then, the ownership of the coal or other minerals in a tract of land may be vested in one person, while the right to the surface belongs to another, the next inquiry is, by what words it may be granted. There are two modes in which the subject-matter of a deed may be described, both equally potential. The one is by a description of the thing itself, as of land by metes and bounds, or by a known name, and the other is by a designation of its usufruct, or of the dominion over it. Thus, a grant of the rents, issues and profits of a tract of land is uniformly held to be a grant of the land itself: Co. Litt. 4b. Judgments abound to this effect in regard to devises, and though in wills and deeds the rules of construction differ relative to words limiting the estate granted, yet they are the same of words describing the subject-matter of the grant. There are also cases of the same character to be found in regard to deeds. Thus, it has been held that by the grant of a boilery of salt the land passes, for that is the whole profit, Co. Litt. 4b; or a mine of lead, Id. 6a. So by the grant of all growing trees, Cro. Eliz. 522. See also 4 Mass. 266; Fish v. Sawyer, 11 Conn. 545. The reason is that the grant of a thing can be no more than the grant of the full and unlimited use of it. So, too, the general power of disposal without liability to account is equivalent to ownership itself, it being the highest attribute of ownership, and a gift of the one necessarily carries with it the other. This is the doctrine of Morris v. Phalen, 1 Watts, 389.