manner, and with due regard to the rights of others. In its search for gas it had to drill through nearly two thousand feet of the earth's crust, with its successive layers or strata of rock, gravel, slate, and other substances, and their veins of water, fresh and salt. In the ordinary course of drilling, these veins of water had to be cased out of the well, and the jury have found on abundant evidence that at a small additional expense, by a process well known and easily applied, and in more or less frequent use throughout the oil and gas districts of Pennsylvania, they might have been kept from mingling, and the wells in the neighborhood saved thereby. If so, then the maxim sic utere tuo ut alienum non lædas applies, and the defendant is liable, not because it has necessarily injured the plaintiffs in the exercise of its own legal right, but because it has injured them unnecessarily by the neglect of such reasonable precautions as might and should have been taken to protect them. According to the testimony, this gas well was drilled with the knowledge of the fact that salt water was to be encountered; that it could be confined to its own bed; that, if it was not, the whole neighborhood would be spoiled,' and that there were many wells near by in the borough of Glenfield to be affected by their care or want of it in this particular. Yet no effort whatever was made to shut off the salt water, or to avoid the destruction of the wells which it was practicable to save. The ground of the defendant's liability is negligence, the want of reasonable care, under the circumstances, for the rights of others."

The drilling here was done by a contractor, who was not required by his contract to use any of the appliances usual and necessary to prevent the pollution of water. The contract contained, as to this matter, the clause, "All springs to be fully protected from damage, and drillings to be carried from the wells to such point as will do the least damage to property possible." This the court below charged did not relieve the gas company of responsibility, as the contractor was not required to shut off the salt water from the fresh so as to protect it. This was assigned as error in the court above, but the judgment was affirmed without mention of this point.

WHERE there has been a horizontal division of the land, the owner of each subjacent estate owes to the owner of the superincumbent estate the support of his land in its natural condition, and the owner of the superincumbent estate has conversely a right to this support. This is an absolute proprietary right, necessarily arising out of the ownership of the surface, and not an easement depending upon a grant.

The mine owner in taking out his minerals must leave sufficient support for the superincumbent land. This he may do by leaving ribs or pillars, or by constructing artificial supports. If he fails to do this and the land sinks, he is liable for the damage that occurs to the surface owner by reason thereof, and he may be enjoined from the further removal of minerals.

Whether the mine owner has worked his mine skilfully or negligently does not affect the existence of the right to surface support. The right is absolute, and causing the subsidence of the surface by mining beneath it is negligence, however carefully or in accordance with usual practice the operation may have been conducted. The owner of the minerals has a right to so much only as he can take out without injury to the surface. In an Iowa case the right to surface support was held to depend upon want of ordinary care in the removal of the minerals; but this is at variance with authority and reason, and the general rule has been subsequently correctly stated in that State. The surface owner's right is likewise unaffected by his knowledge of the state of the mines or the method of working them, nor can it be controlled by a custom to take out all the minerals without provision for support.

Though the right of surface support is absolute, yet the subjacent owner may be relieved of the corresponding obligation by a release from the surface owner, or by the terms of the instrument creating his estate. But upon him who thus attempts to control the rule of law, lies the burden of proof. To destroy or injure the surface, there must exist some statutory or contract authority. The intention to part with the right of surface support must appear by plain and explicit language in the grant of the minerals, or by an express exception from a reservation of them. It may not be taken away by mere implication from language not necessarily importing such a result. It is not accomplished by a grant or reservation of all the minerals under the land, or of all the privileges necessary to their convenient working; nor do special provisions as to support relieve the mine owner from any further duty toward the surface owner. The immunity gained to the owner of minerals by an express covenant extends to his lessee. And such a release is binding upon the grantor and those taking title under him, but not upon the State or its grantee entering by right of eminent domain. But where recorded articles of agreement to sell the minerals do not contain such a release of the obligation to furnish support for the surface, purchasers of the surface are affected only with the notice of what was recorded, and not with a provision in a subsequent unrecorded deed absolving the mine owner from this duty, and they consequently are not bound by the latter.

The mine owner cannot be relieved of his obligation by parol evidence that at the time of the grant the grantor told him that the mining of the coal would let the surface down.

The surface owner's right is to the actual support of the land in its natural condition. It does not extend to the support of buildings erected upon the surface, and the mine owner may mine so that the buildings fall, provided his mining would not have injured the surface in its natural state. On the other hand, the mere presence of buildings does not prevent a recovery for injury to the surface, unless it be shown that the subsidence was due to their presence; but the presumption is that the removal of the minerals caused the subsidence. If this is the case, if the surface has subsided because of the mine owner's failure to furnish sufficient support to keep it in its natural condition, he is liable for injury to ordinary buildings that may have been erected on the surface

indeed for every injurious effect the whole surface estate may have suffered from the falling in or cracking of the surface. The statement in Jones v. Wagner, 66 Pa. 429, that the right of surface support extended to reasonable buildings is not borne out by the authorities. But the right to support of structures upon the surface may be acquired like any other easement by grant, express or implied. In America it would seem that such a right cannot be acquired by prescription.1

A railroad or pipe line company having a right of way over mineral lands is entitled to support of the surface of its right of way, its road and rolling-stock, or pipe lines, and at its suit the owner of the minerals will be enjoined from mining thereunder. If the railroad was there at the time he acquired his estate, he took subject to this right, and could not hold his grantor in damages for the loss by reason of his being prevented from taking out the minerals needed to support the railroad. When the right of way is acquired by right of eminent domain, the value of the minerals in place which must be left to support the railroad or pipe line will be included in the damages. But the company is not bound to take this servitude, and may release the owner of the land, or of the minerals, as the case may be, from the burden, in which case damages will not be paid therefor, and he may mine and remove the mineral as freely and fully as if no entry had been made. If, then, the company, in disregard of its contract, should enjoin the mine owner from removing the minerals, it would be liable in damages for breach of its contract, and the measure of damages would be the value of the mineral left standing.

The same principles as to surface support are applicable to a lease of minerals as to a grant thereof. It is a presumption of law that, in the absence of expressions of a contrary import, the lessor reserves to himself a right of surface support. This presumption is not negatived by the fact that the rent is determined by the amount of mineral taken out.

The same principles, mutatis mutandis, likewise hold between the owners of different minerals or different veins in the same land. The owner of the lower mine owes the servitude of support

1 See Mitchell v. Rome, 49 Ga. 19; Gilmore v. Driscoll, 122 Mass. 199; Napier v. Bulwinkle, 5 Rich. (So. Car.) 311; Tun

stall v. Christian, 80 Va. 1, overruling Stevenson v. Wallace, 27 Grat. 77.

to the upper. They have no application, however, when the same person is the owner of both estates.

The owner of minerals is not liable for damages to the surface done by his tenant, unless the mining has been superintended by the owner, and the manner of working was the cause of the injury.

The mine owner may, in the ordinary course of operating his mine, destroy springs upon the surface, and the surface owner may not recover damages therefor. But if the destruction of a spring was caused, not by the ordinary working of the mine, but by the sinking of the surface, by reason of the mine owner's failure to support the same, he is liable for the injury.

The damages for which the surface owner may recover are for injuries already suffered by reason of the removal of the minerals, and which may result from the removal of supports already taken down, but not for injuries which are likely to result from the future removal of supports.

By statute in some states the owner of the surface may compel the owner or lessee of minerals beneath it, to give security for probable damage by mining.1

Where the surface be

Wilms v. Jess, 94, 464 (1880). Illinois. longs to one and the minerals to another, no evidence of title appearing to regulate or qualify their rights of enjoyment, the owner of the minerals cannot remove them without leaving support sufficient to maintain the surface in its natural state.

The lessee of the sole and exclusive right of digging for coal in certain land, and of taking it out and working it, with the right of way and surface of so much as is necessary for economical use of the same, it being agreed that he shall mine the coal in a workmanlike manner, "no pillars to be withdrawn within six hundred feet of the shaft," owes surface support to the grantee of the surface. The compliance with the agreement as to withdrawal of pillars does not relieve him of that obligation.

The duty of surface support only extends to the soil, not to buildings upon it. But the mere presence of buildings does not prevent a recovery for injuries to the surface, unless it is shown that the subsidence would not have occurred except for the presence of the buildings. Prima facie the act of removing all the coal is the cause of the subsidence.

Penn v. Taylor, 24 Ap. 292 (1887). In an action for damages to the surface by removing support thereto, it is error to charge the

1 Colorado, M. A. S. 3139, 3159; Da- p. 26; North Dakota, Rev. Codes 1895. kota, Comp. L. 1887, ch. 19, art. 1, sec. sec. 1436; Wyoming, Laws 1888, ch. 40, 2007; Idaho, Act March 5, 1895, sec. 10,

sec. 6.