of coal or other stratum during its removal. It seems equally clear that the right of way through all intermediate spaces is essentially and impliedly reserved; that is, speaking with reference to a particular stratum, for instance, in parting with that alone he does not part with any of the subjacent or superjacent strata, and for that reason it cannot be said that he should be denied the enjoyment of any particular stratum which he has not parted with, nor the means of access to and of enjoying it. As was said by the court: "He gave no title to any of the strata underlying it, and it is not to be supposed for a moment that the grantor parted with, or intended to part with, his right of access to it. We are of opinion that he has such right of access; the only question is how that right shall be exercised, by what authority and under what limitations." 1 Pursuing the same thought, it would seem that he would have the right through the empty space, independent of the question of the ownership of that space. In cases where the transfer of the stratum is absolute, and no question arises as to any reverter of the space, there has been some contrariety of opinion as to the ownership of the empty space. Independently of the question of its usefulness for any other purpose, the further question has been presented to the courts as to whether, after the removal of the stratum, the owner of such stratum possesses such an interest and ownership in the space formerly so occupied as that he may use or employ it to reach a continuation of the same stratum, or another stratum in the same or adjoining land. The courts seem to hold in favor of such right. The correctness of this, we take it, cannot 1 Chartiers Block Coal Co. v. Mellon, 152 Pa. St. 286, 25 Atl. Rep. 597. See also Pennsylvania Coal Co. v. Sanderson. 113 Pa. St. 126, 6 Atl. Rep. 453, and cases there cited. Compare Pomroy v. Salt Co., 37 Ohio St. 520. 2 Lillibridge v. Lackawana Coal Co., 143 Pa. St. 293, citing with approval Hamilton v. Graham, 2 H. L. Sc. 166; Proud v. Bates, 34 L. J. Ch. 406; Bowser v. McLean, 2 De Gex, F. & J. 415; Eardley v. Granville, L. R. 3 Ch. Div. 826. be doubted in cases where the severance is complete and the title absolute, subject of course to the same incidental rights of which we have spoken. § 1011. Comments - A servient duty in each estate with reciprocal rights.-The doubt was expressed by the California court, as we have seen, as to whether the reservation of the minerals in the Nevada town-site patent could be effectual for the reason that the means of enjoyment was not reserved. We have taken occasion to say, and the authorities authorize the broad statement, that the law nowhere stultifies itself to the extent of permitting a reservation to be made, or an estate to be granted, without the means of enjoyment attaching in either case. With reference to the matter in hand, of the right of way through a servient estate, we take a still stronger view, especially where the right is only co-extensive with the removal of the strata. Before the removal of the coal the particular stratum, as we have seen, being the only thing assigned, conveyed or withheld, it is the only thing belonging to that particular owner, and an adjacent or superjacent stratum may belong to the sovereign proprietor or to any other grantee of his; and the particular stratum in question not only owes servitude to the surface as he again in turn owes it the servitude of a right of way, but it owes a servitude to the underlying strata within the same bounding planes, and that, too, whether the coal or other mineral has been removed or not. For what applies to a stratum of coal, of course, in reason applies to a stratum of iron ore or other mineral. The grant, reservation or exception by which the reservation is accomplished in itself tells the entire story and creates a covenant that runs with the land in respect of every stratum reserved or granted, and the purchaser of it, or any one of the several estates, takes it with this covenant and this servitude. So, with entire respect to the supreme court of California in the case of Dower v. Richards, we say that the Nevada town-lot proprietor took the estate in the surface land coupled with the reservation, as it did likewise charged with a servitude, by means of which the minerals reserved could be taken from the soil by any one seeking in a lawful way to become the grantee of the government.1 § 1012. Tunneling under ground of another - Pursuant to custom-Statute prohibiting. The right of a mine owner to tunnel under the property of another has been considered in two aspects by the supreme court of California. The first was an early case, where plaintiff, who was the owner of certain placers, called "back claims" because of their position with reference to the "face" of the hill, claimed the right to tunnel under the ground of defendant's front claims for the purpose of working his claims at bedrock, and prayed for an injunction restraining the interference with such right. The court held that he had this right established by custom. In the latter case, the defendant held title to a town lot under the Nevada City town-site grant, which reserved all known minerals. Plaintiff, by running a tunnel under this lot, undertook to work a quartz vein, which it was claimed was known to exist at the date of the town-site patent, and therefore reserved. The supreme court held that the owner of the lot held all except the part in which the minerals were situated in fee simple, and, in the absence of express statutory authority, no one could tunnel under the land for the purpose of working the minerals except by contract with the owner. In other words, that while the minerals were reserved, the right to work them was not. They must lie there idle and unworked for all time, no matter how valuable, unless, forsooth, the owner of the town lot, which may be practically valueless, can be prevailed upon to give 1 See also post, § 1012. Bliss v. Kingdom, 46 Cal. 651. 'Dower v. Richards, 73 Cal. 477, 15 Pac. Rep. 105; s. c., 151 U. S. 658. See also Dower v. Richards, 64 Cal. 62. his consent. This decision has been noted elsewhere,1 and we will not notice it further here. The legislature of Colorado has taken a chance at this point, together with all the rest in the category, by enacting a provision that no person shall mine under the buildings of another without first securing the surface owner against all damages.2 ARTICLE B. Surface Support. § 1016. Rights and duties resulting from severance General observa tions. 1017. Definition. 1018. Of natural right recognized by statute. 1019. Right cannot be defeated by custom. 1020. Surface support in general. 1021. Same-The universal rule-Surface support in natural state. 1022. Same subject-Right held to be absolute. 1023. Support from adjacent and subjacent soil1024. Right founded in natural justice. A natural right. 1025. Does not depend upon negligence or unskilfulness. 1026. The English doctrine-Duty to self- But others' rights re spected. 1027. Limitations on the foregoing Permission to work in the usual and approved way. 1028. Right is implied from circumstances. 1029. Ordinary and approved mining sometimes the test of fact. only limited 1030. Common-law right controlled by conveyance, but sometimes 1031. Other effects of covenants - Convenient working - Similar rights Usual and incidental rights. 1032. Right may be conveyed away. 1033. When agreement of parties controls and when compensation allowed. § 1016. Rights and duties resulting from severance General observations. A severance having been created and established in any of the ways pointed out in the fore 1 Ante. 212, 960, 1011. 2 Mills' Ann. Stats., § 3131; Laws 1861, p. 166, § 3. See post, § 1018. going, each estate carved out becomes the subject of ownership, bargain and sale, separate from the other. The mineral estate becomes the dominant one, and generally the last one created is superior in right; and, subject to the exceptions hereinafter pointed out, every previously-existing estate owes a servient duty to such dominant estate.1 But there are exceptions to the rule above stated and circumstances under which the relative rights of the parties become reversed; and the mine owner, or other subsurface claimant, owes the duty of surface support to the surface owner.2 § 1017. Definition. The particular easement or servitude with which we have to deal may be defined to be an easement appurtenant, a covenant, the right running with the land, such as was denominated at the civil law as prodium serviens. With easements in gross we will have nothing to do in this branch of our subject. And the easement with which we have to deal may be defined to be the privilege, without profit, which the owner of one neighboring tenement hath of another, existing in respect of other several tenements, by which the servient owner is obliged to suffer to be done or not do something on his own land for the advantage of the dominant owner. It is a right, easement or servitude which one proprietor has to some profit, benefit or beneficial use out of, in or over the estate of another proprietor. The rights with which we have to deal are scarcely what can generally be called an easement; they are more in the nature of profits a prendre. As was said by Lord Wensleydale: "I think it perfectly clear that the right in this case was not in the nature of an easement, but that the right was to the enjoyment of his own 1 Lillibridge v. Lackawana Coal Co., 143 Pa. St. 293, 22 Atl. Rep. 1035. 2 See post, next section; also S$ 1018-1020. 36 Am. & Eng. Ency. Law (1st ed.), p. 139: Tabor v. Bradley, 18 N. Y. 109, 8 Kent's Com. 528; Boston Water Power Co. v. Boston & Worcester Ry. Co., 16 Pick. 522; |