Applying these principles to the case in hand, why was not the deed of Caldwell to Greer a conveyance of the coal in the land owned and occupied by the grantor? Because, says the plaintiff in error, it is not a grant of the thing itself, but of a right to take it and until it is seized or taken the property in the thing remains in the grantor. But if the conveyance of the whole use of a thing, and of the absolute dominion over it, is a grant of the thing itself, only differing in the mode of describing the subject, it is not easy to see what more Caldwell could have sold than he did. If in another form of words he had described the coal as the subject of the grant, Greer would have possessed no greater beneficial rights than were given to him by the form adopted. The ownership of the coal in the ground is but a " full right, title, and privilege " to dig and carry it away, nothing more, nothing less. The words employed in the deed express absolute dominion, and complete enjoyment. These constitute property, and all that is understood in proprietorship.
Again, says the plaintiff in error, this is but a grant of a right to take and carry away part of the profits, and that while a grant of a right to take all the rents, issues, and profits of a tract of land is equivalent to a conveyance of the land itself, because it embraces their whole usufruct, a grant of a right to take part, such as " iron ore, coal," or " minerals," is not. It is said that in such a case the grantee can only take in common with the grantor.
The argument is based upon a misconception. The subject alleged to have been granted here is not the tract of land, but the coal in it, which, as we have seen, is capable of a separate conveyance, and which may be vested in one person, while the ownership of the tract of land, as such, may be another's. The alleged subjects of the grant then being the coal in the land, the substratum, the argument is inapplicable. The whole usufruct of that, as well as the entire dominion over it, was granted. The deed is not a conveyance of part of the usufruct, nor of the usufruct of part of the coal, but of the entire enjoyment. As already said, there was no limit to the grantee's right but his own will. He could take out coal to any extent. He could cause it to be taken out to any extent, and at all times under any of the land. He was accountable to no one. His entrance to it and his exit from it were, indeed, required to be on his own land; but the right to take the coal itself was absolutely unlimited. It would seem, therefore, that, according to well-established rules of construction, the deed of Caldwell to Greer was a conveyance of the coal itself, and not of a mere easement or incorporeal hereditament.
It is contended, however, that such a construction is in conflict with the authorities, and we are referred to Lord Mountjoy's case as the leading and principal one. [After reviewing this case (Anderson 307) and Chetham v. Williamson, 4 East, 496; Doe v. Wood, 2 Barn.
& Ald. 719, and Grubb v. Bayard, 2 Wall. Jr. 81, the opinion proceeds as follows]:
These are all the cases adduced to sustain the doctrine that a conveyance of a right to dig, take, and carry away the coal or minerals in a tract of land, though the grant be unlimited in quantity, time, or purpose for which the minerals may be taken, conveys no interest in the coal or minerals until they are taken, passes only an incorporeal hereditament. None of them were decided upon the ground of any supposed distinction between a right to take all the coal and carry it away, and a right to the coal itself. They are all cases in which there was no unrestricted power of taking and disposition conferred upon the grantee. The coal or minerals was to be taken either for a limited purpose, or in restricted quantities, and generally was not to be paid for until taken. And in most of them it is easy to see that the supposed necessity of livery of seisin, in order to pass a corporeal interest in land, was a controlling consideration in the minds of the judges. Even in Grubb v. Bayard, it seems not to have been without influence. The impossibility of making livery is, however, in Pennsylvania, no reason for refusing to give a construction to a deed accordant with the intention of the parties. When the intent is to give the entire usufruct and power of disposal, the legal title must be held to pass. Even in England, livery of seisin is no longer indispensable to the grant of a corporeal hereditament. Unopened mines may be conveyed, and the grantee takes more than a right issuing out of land, or exercisable therein. He takes the mines themselves. In Stoughton v. Leigh, 4 Taunt. 402, a widow was held entitled to dower of mines, not only in lands in which her husband had been seised in his lifetime and during coverture, but also in those which were in the lands of other persons, the minerals or substratum of which had been conveyed to him. It was also ruled, that in assigning her dower, the sheriff should set off to her not one-third of the profits but one-third of the mines themselves, and that the partition might be made either by metes and bounds, or by directing separate alternate periods of enjoyment.
It is not strange, therefore, that it had been held in this State, before the controversy between these parties was first here, that an unrestricted right to take and carry away all the coal in a tract of land is a corporeal right and exclusive. In Benson v. The Miners' Bank, 8 Harris, 370, we have this case: Reese was seised of two undivided third parts of a tract of land, and of one-fifth of all the fossil coal under it. He made a deed for the tract to Kepner, con-taining the clause "excepting and forever reserving the liberties and privileges for the heirs and legal representatives of Samuel
Potts, deceased (of whom he was one), to dig, take, and carry away all the stone coal that is or may hereafter be found on the above described tract of land." The judgment of this court was, that the deed conveyed no part of the stone coal to the grantee of the land. Of course, it remained reserved or ungranted as a corporeal hereditament.
Thus, after a careful review of the question, we are constrained to hold that, by the deed from Caldwell to Greer, the title to the coal in the lands then owned and occupied by the grantor was conveyed, and not a mere license or incorporeal right. Such was the opinion of this court in 1855, when the same deed was here for construction, and the very able argument of the counsel for the plaintiff in error has failed to convince us that the court was then mistaken. * * *
The judgment is affirmed.