The first is described as a property in the surface (la propiedad del suelo), and the other as a property in the mineral (la propiedad de la mina). Both of these interests in the substance of which the earth is composed are considered as interests in land, as real estate, and as corporeal hereditaments, and both belong to the class variously denominated in Spanish law, bienes raices, fundos, heredades, tierras, possessiones, predios, fincas, etc. (2) All continental publicists who have written upon this subject lay down the fundamental rule that mines, from their very nature, are not a dependence of the ownership of the soil; that they ought not to become private property in the same sense as the soil is private property, but that they should be held and worked with the understanding that they are by nature public property, and that they are to be used and regulated in such a way as to conduce most to the general interests of society. Whether this object can be best attained by conditional grants, or by licenses to individuals and companies, or by general permission to work them upon specified conditions, is a question to be determined by that power in a State whose mission it is to watch over the welfare of society at large; that is, by the sovereign authority, whatever that authority may be called, and howsoever constituted. (Delebecque, Traité des Mines, Tome 1, p. 17; Halleck's Introduction to De Fooz, Sec. 3.) De Fooz gives three general reasons, which he says lie at the foundation of the rule. 1st. The nature of things. — That experience has shown that subdivision and individual ownership of land are favorable to culture and increase of production, but that mines have no immediate relation to the surface, and the ordinary superficial divisions and measurements of land cannot be applied to them. . . . 2nd. The general principles of legal rights. - That legal appropriation is the result of human industry applied to the thing appropriated. Thus, man appropriates portions of the earth's surface by sowing it, planting it, and building upon it; and the portions so appropriated to his individual use he causes to produce new matters, which are necessary for his own subsistence, and comfort of others. But this has no analogy to mine working. The miner takes from the earth what already exists there; he produces nothing new. 3rd. Public policy, based upon

public utility and the welfare of society, requires that these two ownerships should be kept separate, or at least that the one should not be made to depend upon the other. Experience has proved that where the surface-owner is made ipso facto the mine-owner, the mining interest does not flourish. Mines to the value of many millions are often, and indeed usually, embraced within the limits of a few acres, so that the smallest land-owner may become the largest mine-owner in the State, and the working of these mineral substances becomes dependent upon the will of a single individual. . .

But whatever may have been the origin of the rule, or the reasons of its adoption as a law of property, it is certain that, since the disruption of the Roman Empire, mines in nearly every civilized country, whether in public or private land, have been considered as belonging to the public, and subject to the control of the authority established in the State to represent its sovereign power, and to watch over the general interest of society.

241. CHARTIERS BLOCK COAL COMPANY v. MELLON SUPREME COURT OF PENNSYLVANIA. 1893

152 Pa. 286, 25 Atl. 597

APPEAL from Court of Common Pleas, Allegheny County. Bill in equity by the Chartiers Block Coal Company against W. L. Mellon and others for an injunction. The injunction was denied, and plaintiff appeals. Affirmed.

J. S. Ferguson and D. T. Watson, with them J. G. MacConnell, for appellant. This is a proper case for injunction because it will prevent repeated trespass and irreparable mischief from escaping gas for which there is no adequate remedy at law. . . . The predecessor in title of defendants in each of these cases conveyed all the coal underlying the surface of the land and gave appellants privileges for its mining and removal, and appellants were actually in possession, mining and removing the coal. These predecessors reserved no right of way through the coal, and appellants have not granted to any one such right, and therefore defendants possess no such right. . . .

J. McF. Carpenter, for appellee. We contend that we have a right of way from necessity; but our right to drill through the coal of another, to obtain and utilize that which we own and which we can obtain in no other way, is not dependent merely upon "right of way" as commonly understood. . . . Aside from the trifling bit of coal necessarily removed in drilling there is no injury shown as having occurred or as likely to occur. Mining rights are peculiar and exist from necessity, and the necessity must be recognized and the relative rights of land and mine owners adjusted and protected accordingly: Sanderson v. Coal Co., 113 Pa. 139.

PAXSON, C. J. This is a case of first impressions, and of very grave importance, and in view of these facts we have been asked to express our opinion of the law bearing upon it, notwithstanding it is an appeal from a decree awarding a preliminary injunction. The facts are probably as fully before us now as they will ever be. The contest arises between the owner of the surface or his lessees and the Chartiers Block Coal Company, the plaintiff below and appellant, which is the owner in fee of the coal beneath the surface. The company purchased the coal on December 22, 1881, and the deed conveying it granted not only all the coal, but also the mining rights and privileges, including the right to enter mines and carry away all the coal; the right to make openings or entries, air courses, water courses, drainage, and shafts, with right of ingress and egress for the purpose of making such openings, with right of way for taking such coal or any other coal and minerals through the entries; and also the right to enter upon the surface of the land for the purpose of taking into and placing on the same any material that it may desire and need in its coal operations; and, when

making entries or shafts, the right to deposit the debris and slack near the openings. The grantor, in conveying the coal with these privileges, reserved to himself no right, privilege, or easement in said coal, or any part thereof, and no right of way through said coal from the surface, to obtain gas or oil, or any other substance. It is not likely, at the time the grant was made, that it occurred either to the grantor or the grantee of the coal that underneath the latter there might lie another substance of perhaps greater value than the subject of the grant itself. It now appears that the coal is underlain with the oil and gas bearing sand, which can only be reached by sinking wells from the surface through the strata of coal. Shortly before the filing of this bill it began to be known that oil or gas existed in large quantities in that part of Allegheny County where the appellant's works are situated, and active operations had begun in the early summer of 1891 by oil operators, to obtain this oil and gas. About this time the surface owner made leases for oil and gas purposes, and the lessees began at once to drill. This bill was then filed by the appellant company for the purpose of obtaining an injunction against the defendants, to restrain them from further drilling wells then commenced, and from drilling any other well or wells which would pass through the coal. The bill was filed upon the allegation and belief that the defendants had no right whatever to drill the wells. The plaintiff company also claimed that it was impossible for such wells to be drilled in such a manner as to allow the removal of all the coal without exposing the mine to leakage from gas from said wells, and rendering the mine operations so hazardous to plaintiff's property and plaintiff's employes as to very greatly injure and depreciate the value of said coal property, if not wholly to destroy the value thereof.

The case was heard below upon bill, answer, and affidavits. The Court, as we understand the decree, refused to grant a preliminary injunction as against any well or wells on said tract of land which at the date of the decree had been drilled by the defendants through the Pittsburgh vein of coal, and also refused to enjoin the defendants from drilling wells on said tract at any place or places where they will not pass through said Pittsburgh vein of coal, but will pass through lower strata of coal. The Court awarded an injunction, however, as to any wells not already drilled which would pass through the Pittsburgh vein. ... Subsequently the decree was modified so as to remove the injunction from the two wells now commenced, but which have not gone down through the Pittsburgh coal vein, on defendants' giving bond as before stated. . .

This is a new question and one that is full of difficulty. The discovery of new sources of wealth, and the springing up of new industries which were never dreamed of half a century ago, sometimes present questions to which it is difficult to apply the law, as it has heretofore existed. It is the crowning merit of the common law, however, that

it is not composed of ironclad rules, but may be modified to a reasonable extent to meet new questions as they arise. This may be called the "expansive property of the common law." Mining rights are peculiar, and exist from necessity, and the necessity must be recognized, and the rights of mine and land owners adjusted and protected accordingly. We have an illustration of this in Coal Co. v. Sanderson, 113 Pa. St. 126, 6 Atl. Rep. 453. The mining of coal and other minerals is constantly developing new questions. Formerly a man who owned the surface owned it to the center of the earth. Now the surface of the land may be separated from the different strata underneath it, and there may be as many different owners as there are strata. Lillibridge v. Coal Co., 143 Pa. St. 293, 22 Atl. Rep. 1035. The difficulty is to so apply the law as to give each owner the right of enjoyment of his property or strata without impinging upon the right of other owners, where the owner of the surface has neglected to guard his own rights in the deed by which he granted the lower strata to other owners. In the earlier days of the common law the attention of buyers and sellers and therefore the attention of the Courts, was fixed upon the surface. He who owned the surface owned all that grew upon it and all that was buried beneath it. His title extended upward to the clouds and downward to the earth's centre. The value of his estate lay, however, in the arable qualities of the surface, and, with rare exceptions, the income derived from it was the result of agriculture. The comparatively recent development of the sciences of geology and mineralogy, and the multiplication of mechanical devices for penetrating the earth's crust, have greatly changed the uses and the values of lands. Tracts that were absolutely valueless, so far as the surface was concerned, have come to be worth many times as much per acre as the best farming lands in the commonwealth, because of the rich deposits of coal, or iron, or oil, or gas known to underlie them at various depths. These deposits are sometimes found, however, beneath well-cultivated farms, so that the surface has a large market value apart from the value of the deposits of coal or other minerals under it. In such cases the owner is rarely able to utilize the lower stores of wealth to which he has title, by mining operations conducted by himself, and for this reason he sells them to some person or corporation to be mined and to be moved. So it often happens that the owner of a farm sells the land to one man, the iron or oil or gas to another, giving to each purchaser a deed or conveyance in fee simple for his particular deposit or stratum, while he retains the surface for settlement and cultivation, precisely as he held it before. The severance is complete for all legal and practical purposes. Each of the separate layers or strata becomes a subject of taxation, of incumbrance, levy, and sale, precisely like the surface. So far our way is clear of difficulty, because the several owners of the mineral deposits are exercising their right to have access to their respective estates against their vendor. Our question is over the right

of the vendor to reach strata underlying a stratum which he has conveyed to another. Having sold the coal underlying the surface, is he to be forever barred from reaching his estate lying beneath the coal? Prior to the sale of the coal, his estate, as before observed, reached from the heavens to the center of the earth. With the exception of the coal, his estate is still bounded by those limits. It is impossible for him to reach his underlying estate, except by puncturing the earth's surface, and going down through the coal which he has sold. While the owner of the coal may have an estate in fee therein, it is at the same time an estate that is peculiar in its nature. Much of the confusion of thought upon this subject arises from a misapprehension of the character of this estate. We must regard it from a business, as well as a legal, standpoint. The grantee of the coal owns the coal, but nothing else, save the right of access to it, and the right to take it away. Practically considered, the grant of the coal is the grant of a right to remove it. This right is sometimes limited in point of time; in others it is without limit. In either event, it is the grant of an estate determinable upon the removal of the coal. It is, moreover, a grant of an estate which owes a servitude of support to the surface. When the coal is all removed, the estate ends, for the plain reason that the subject of it has been carried away. The space it occupied reverts to the grantor by operation of law. It needs no reservation in the deed, because it was never granted. The grantee has the right to use and occupy it while engaged in the removal of the coal, for the reason that such use is essential to the enjoyment of the grant. It cannot be seriously contended that, after the coal is removed, the owner of the surface may not utilize the space it had occupied for his own purposes, either for shafts or wells, to reach the underlying strata. The most that can be claimed is that, pending the removal, his right of access to the lower strata is suspended. The position that the owner of the coal is also the owner of the hole from which it has been removed, and may forever prevent the surface owner from reaching underlying strata, has no authority in reason, nor, do I think in law. The right may be suspended during the operation of the removal of the coal to the extent of preventing any wanton interference with the coal mining, and for every necessary interference with it the surface owner must respond in damages. The owner of the coal must so enjoy his own rights as not to interfere with the lawful exercise of the rights of others who may own the estate, either above or below him. The right of the surface owner to reach his estate below the coal exists at all times. The exercise of it may be more difficult at some times than at others, and attended with both trouble and expense. No one will deny the title of surface owner to

all that lies beneath the strata which he has sold. It is as much a part of his estate as the surface. If he is denied the means of access to it, he is literally deprived of an estate which he has never parted with. In such case the public might be debarred the use of the hid