pany. From an order refusing to take off a nonsuit, plaintiff appeals. Reversed.

Argued before MITCHELL, C. J., and FELL, BROWN, MESTREZAT, POTTER, ELKIN, and STEWART, JJ.

Russell Duane, for appellant. Gavin W. Hart, for appellee.

ELKIN, J. The appellant, Lamb, a boy 18 years of age, while in the employ of the defendant company, was ordered by its foreman to clean the skylights which made the roof of a certain roundhouse belonging to the appellee. According to his testimony he was standing on a skylight, cleaning it with a mop, when one of the sashes suddenly gave way, and he fell to the floor below, sustaining severe injuries for which damages are claimed in this action. The negligence com-' plained of is that appellee had negligently and carelessly permitted the skylights to fall into such a condition of nonrepair and to become so weakened and defective as to make them an unsafe place on which to work. The roof of the roundhouse was cone shaped and almost entirely covered with skylights, each skylight being between five and six feet long and three feet wide, and supported and kept in place by strips of metal about an inch and a half wide and extending the length of a skylight. Testimony was introduced in the court below tending to show that the smoke or soot emitted by the locomotives which passed in and out of the roundhouse had caused these metal strips or frames to rot or corrode, and as a result thereof the roof was in a condition of decay and nonrepair; that pieces of glass and metal strips were constantly falling down from the skylights, and that prior to the date of the accident there had been no inspection of the skylights or repair of the defective conditions. At the trial a compulsory nonsuit was entered on the ground that there was no evidence to show what caused the accident. The ruling of the learned trial judge in this respect, and also his refusal to admit the testimony on behalf of the plaintiff relating to the failure of the defendant to make proper inspection or repair, and also as to the general bad condition of the roof, have been assigned for er

ror.

The third and fourth specifications of error relate to the refusal of the trial judge to admit the testimony of the plaintiff tending to show that prior to the accident the roof of the roundhouse had not been inspected or repaired by the defendant company. The appellant was not permitted to testify that durIng the time of his employment at the roundhouse for a period of almost two years, with many opportunities to observe the skylights, he had never seen anyone inspecting or repairing them. This testimony should have been admitted, and it was error to exclude it. It was proper to show these facts, which,

taken in connection with other evidence in the case, should be considered by the jury in determining the question whether proper inspection had been made and a reasonably safe place provided.

It

The ninth specification of error relates to the action of the trial judge in striking out all the testimony of the witness Daily with regard to the condition of the roof: The substance of Daily's testimony is that during the month preceding the accident he saw pieces of glass from the skylight and of metal strips which supported the same frequently falling to the floor of the roundhouse. He also saw pieces of these metal strips protruding downward from the skylights. The testimony was introduced for the purpose of showing the bad condition of the roof. was stricken out apparently on the ground, as stated by counsel for defendant company in making the motion, that it was introduced upon the assurance of counself for plaintiff that expert testimony would be introduced to show that the condition Mr. Daily found was caused by something which the expert would testify about. The expert. Link, previously called by the plaintiff, did testify as to the cause of the bad condition of the roof, and what produced it, and we can see no sufficient reason why the testimony of Daily should have been stricken out. This testimony, showing the defective condition of the skylights in conjunction with that of the expert Link showing what caused the condition, was clearly admissible. Even though the expert's testimony had not been introduced to show what caused the roof to fall into a state of decay and nonrepair, the testimony of Daily as to the general bad condition of the roof was admissible. Nor do we agree under the facts of this case that it was necessary to show the condition of the exact spot where the injury occurred, but it was proper to prove the bad condition of other portions of the roof similarly situated and affected as that in the immediate vicinity of the accident. This would come clearly within the rule stated in 21 Am. & Eng. Ency. of Law (2d Ed.) 518, wherein it is said: "Where also, from evidence of the condition or quality of other portions of the structure or premises than that immediately causing the injuries, it is reasonable to infer the condition or quality of the portion directly involved, at the precise point or place where the injuries occurred, such evidence is proper for the consideration of the jury."

Under all the circumstances of this case, it was for the jury to say whether there had been sufficient inspection, and whether the roof was a reasonably safe place on which to work.

The first, third, fourth, and ninth assignments of error are sustained.

Judgment reversed and a venire facias de novo awarded.

(217 Pa. 449) MILES et al. v. PENNSYLVANIA COAL CO. (Supreme Court of Pennsylvania. April 1, 1907.)

1. MINES AND MINERALS-SUPPORT OF SUBFACE.

The owner of the surface may by contract relieve the owner of the mineral estate from any duty to support the surface, and from liability for any injury done to it by the mining and removing of the minerals.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Mines and Minerals, §§ 153, 243.] 2. SAME-MINING LEASE-SUPPORT OF SUB

FACE.

An owner of land granted a lease to remove all the coal, giving unlimited surface rights, and stipulating that the lessee should not be liable for any falling in of the surface because of the mining of the coal. Held, that the lessee could remove all of the coal without any liability for injuries to the surface, and a provision in the lease, giving the lessors authority to enter the workings to satisfy themselves as to the correctness of the lessee's return, and giving them the right to designate where pillars are to be left, does not change such construction.

Appeal from Court of Common Pleas, Lackawanna County.

Bill by William Miles and others against the Pennsylvania Coal Company. From a decree dismissing the bill, plaintiffs appeal. Affirmed.

See 63 Atl. 1032, 214 Pa. 544.

Argued before MITCHELL, C. J., and FELL, BROWN, MESTREZAT, POTTER, ELKIN, and STEWART, JJ.

H. M. Hannah and S. B. Price, for appellants. Everett Warren, E. N. Willard, Henry A. Knapp, and Charles P. O'Malley, for appellee.

MESTREZAT, J. By an agreement in writing, dated November 23, 1880, the plaintiffs, or those under whom they claim, demised, leased, and to mine let to the defendant company "all the merchantable coal lying and being in the veins in, under and upon" a certain described tract of land in what was then Lackawanna township, Luzerne county, this state. The defendant company, by virtue of this authority, mined and removed two-thirds of the coal, leaving the one-third thereof in the shape of pillars which support the surface. The company was proceeding to mine and remove the pillars, when the plaintiffs filed this bill in the court below, averring that the removal of the pillars would cause irreparable damage to the surface, and praying an injunction to restrain such action by the defendant company. The defendant filed an answer, averring that it had the right to mine and remove all the coal under the premises, including the pillars, and that any damage which might be caused to the surface of the land is released by the contract between the parties. A motion was made for a preliminary injunction, which was refused. An appeal was taken by the plaintiffs to this court, which was heard last year, and the

decree of the court refusing the preliminary injunction was sustained. Miles v. Pennsylvania Coal Company, 214 Pa. 544, 63 Atl. 1032. On the return of the record to the court below, the case was proceeded in until a final decree, refusing an injunction, was entered from which we have this appeal.

The single question raised by the appeal is whether the defendant company has the right to mine and remove all the coal under the plaintiffs' premises without leaving sufficient pillars to support the surface. The answer to the question requires the interpretation of the lease, and depends entirely upon the proper construction of that instrument. An able and elaborate opinion was filed by the trial judge in the court below on refusing the motion for a preliminary injunction, and will be found in the report of the case when it was here on the previous occasion. The law applicable to the interpretation of such contracts is there correctly stated, as appears by the citation of our own cases and of other recognized authorities, and it is clearly pointed out that, applying the wellsettled principles announced in those cases, the lease conferred upon the defendant company the right to mine and remove all the coal without leaving any pillars to support the surface, and without liability for any dainage done to the surface.

It is settled law in this state that, in the absence of a contract providing the contrary, the owner of the mineral estate in a tract of land owes a duty, ex jure naturæ, to the owner of the superincumbent estate of absolute support to the surface. The owner of the coal, like the owner of the surface, has an estate in land; but the former holds his subject to the right of the latter to demand that he do no injury to the surface by removing the coal. As we have said in a former case, the owner of the mineral must support the surface, if it requires every pound of coal to be left in place for that purpose. There can be no doubt that such are the reciprocal rights of the owners of the surface and of the mineral estate in this commonwealth. The several cases of this court on the subject conclusively determine the question. While, however, the owner of the surface is entitled as of natural right to its support by the owner of the subjacent mineral estate, it is equally well settled that the common owner of both estates, or the owner of the fee simple title to the tract of land, may by contract relieve the owner of the mineral estate from any duty to support the surface and from liability for any injury or damage done to it by mining and removing all the mineral. Being the common owner of the whole title, and therefore having the jus disponendi, he may make any legal disposition of the property he may desire. He may sell the coal and retain the surface, or he may sell the surface and retain the coal. In sell

ing or leasing the coal he may grant such rights to the vendee or lessee as either may desire or deem proper or necessary to remove the entire body of coal, as well as such rights in, through, or over the surface as may be necessary for the same purpose. In other words, having the absolute dominion over the property, he may grant such rights therein and thereto as may be agreed upon and are stipulated for in the contract. This naturally and logically follows from his ownership of the fee-simple title to the property.

In Barringer and Adams on Mines and Mining (676) it is said: "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." In Williams v. Hay, 120 Pa. 485, 495, 14 Atl. 379, 382, 6 Am. St. Rep. 719, Mr. Justice Paxson, speaking for the court, says: "It is settled law in this state that where one person owns the surface and another person owns the coal or other minerals lying underneath, the under or mineral estate owes a servitude of sufficient support to the upper or superincumbent estate. This principle has no application where the same person is the owner of both estates, nor does it apply where by the contract between the parties they have covenanted for a different rule. Like any other right, the owner of the surface may part with the right to support, by his deed or covenant." Scranton v. Phillips, 94 Pa. 15, was an action to recover damages for injuries done to a lot and the building thereon by reason of the settling of the surface, caused by mining and removing the coal. It was held that the implied right of surface support might be excepted from the grant by apt words in the contract, and, in delivering the opinion, Mr. Justice Mercur, in construing the contract between the parties, said (page 22): "Thus, in clear, express, and distinct language, it was agreed the owner of the mine, his heirs and assigns, should be exempt from the very liability now attempted to be fastened on him and his assigns. We see no reason why a person shall not be bound by his agreement to exempt another from liability for damages in working a coal mine, as well as from liability for damages resulting in the performance of any other kind of labor. No rule or policy of law forbids it." In Smith v. Darby et al., L. R. 7 Q. B. 716, Mr. Justice Mellor says (page 726): "The man who grants the minerals and reserves the surface is entitled to make any bargain that he likes. Both parties are just as much at liberty to make a bargain with reference to coals and minerals, as to make a bargain with reference to anything else."

The question, therefore, in this case, is whether the contract of the parties permits

the removal of all the coal, including the pillars, by the defendant company, without liability for injury done thereby to the surface. If the plaintiffs by their contract have granted such right to the defendant company, they are not now in a position, against the wishes of the defendant, to recall it, notwithstanding it may be, as their counsel urgently insists, injurious to their interests. Both parties must stand by the contract, which, on proper application, the court is required to enforce. A careful examination of the contract convinces us that the only purpose which both parties had in view when it was executed was the mining and removal of all the coal, and that such mining operations by the lessee should be without regard to the effect they might have upon the surface. The different provisions of the contract all point to this as the main and important purpose of the parties in entering into the lease. The demise is of "all the merchantable coal * * in the veins in, under and upon" the land, "together with the right to mine and remove said coal in said veins until all the merchantable coal has been mined and removed from said veins on said hereby leased premises." Then follow unlimited surface rights. The lessee is granted the right to use the lands "for the digging and making of all air-shafts to and through the surface of said lands, with the right to dig the same as in the opinion of the said lessee may be necessary for the proper working and ventilation of the workings in the said veins of coal." It is further covenanted that the lessee company may use any shafts, slopes, or other openings already opened on the demised premises; and the company is granted without any restrictions whatever "the right to deposit culm, dirt and refuse on the said lands hereby demised." The surface was further put under the servitude of the lessee for road purposes by the following covenant: "The said lessee shall have the right of way over the surface of the said hereby demised tract of land for the construction and making of any and all railroads and the roads that may be necessary for the removal and transportation of coal during the continuance of this lease, and after the coal on said hereby demised tract of land has been exhausted."

It is apparent, we think, from these brief excerpts from the lease, that the intention of the lessors in entering into the contract was for the purpose of having the entire body of their coal mined and removed, so that they could realize upon it; and that this was to be done without regard to the effect of the mining operations upon the surface. The contract grants in terms all the coal, with the right to mine and remove it. The surface rights, it will be observed, are unlimited, and substantially confer authority upon the lessee to use the surface to the exclusion of its owners. The rights of the lessee company to the surface could scarcely be greater, if

the lessors had granted it the fee during the continuance of the mining operations. These stipulations show the intention of the parties in entering into the contract, and that the manifest purpose on the part of the lessors was to realize upon the entire mineral estate.

In addition to the intention of the lessors, thus clearly disclosed, that the lessee should mine and remove all the coal without regard to the injury done the surface, it is specifically covenanted in the agreement as follows: "It is hereby further agreed that the said lessee shall not be liable for any falling in of any part or parts or all of the surface of the said hereby demised premises in consequence of the mining and removing of all of the said coal, and the said lessors shall indemnify the said lessee against any liability for any falling in of any surface of any lots on said demised premises the surface of which may have been sold by said lessors." Here is an express covenant by the lessors, not only relieving the lessee from injury to the surface in consequence of the mining operations in removing all the coal, but also indemnifying the lessee against liability for injury that may be done to the surface of any lots which may be owned by other persons than the lessors. Read in connection with the stipulations in the lease granting the right to remove all the coal, this covenant against liability for injury to any part of the surface arising from the act of mining and removing all of the coal is conclusive against the contention of the lessors that the lessee is required under the lease to leave pillars or any part of the coal for the support of the surface. As said by Mr. Justice Mercur, in Scranton v. Phillips, 94 Pa. 15: "In each case the question is: Did the parties agree there should be no obligation in regard to support?" In the case in hand, the agreement is explicit, and clearly confers upon the lessee the right to remove all the coal without regard to the damage which may result to the surface. Of course, in exercising the right to remove all the coal, the lessee must use proper methods in its mining operations, and must not by careless and negligent mining injure the surface. Youghiogheny River Coal Co. v. Allegheny National Bank, 211 Pa. 319, 60 Atl. 924, 69 L. R. A. 637. But aside from this limitation the lessee company may, under its contract, remove all the pillars which it has heretofore left to support the surface, and, if it results in injury to the superincumbent estate, the owner has no redress against the company.

It is contended, however, by the plaintiffs, that the following clause of the lease prevents the removal of the pillars, and shows that the parties intended they should remain in place to support the surface: "It is hereby further agreed that the said lessors shall have the privilege at any time, by their agent or engineer, to enter upon the workings of

the said lessee in and upon the said hereby demised lands, and to satisfy themselves as to the correctness of the returns of the quantity of the coal mined, and if said lessors may wish at any time to have more pillars left in the mines than it appears to be the intention of the said lessee to leave, or than said lessee may have left in similar workings in said hereby demised premises, the said lessors may by written notice to said lessee designate where and in what manner such pillars are to be left." Notwithstanding the very earnest argument of the plaintiffs' counsel in support of their interpretation of this clause of the contract, we are clear that it is not tenable. This clause must be construed with the other parts of the agreement with a view of giving effect to the whole instrument. It was not the intention that it should abrogate those parts of the agreement which give the lessee the right to remove all the merchantable coal with a release from liability for injury done the surface. That will not be presumed, in the absence of language clearly importing such purpose. The first part of the clause gives the lessors the right to enter the mine to verify the correctness of the quantity of coal returned as mined by the lessee, and the latter part was to enable the lessors to ascertain if the mining operations were being conducted so that "all the merchantable coal could be removed." Both clauses were inserted in the contract to enable the lessors to protect their interests, and for that purpose the latter had the stipulation inserted that they might "designate where and in what manner such pillars are to be left." The lessee company was impliedly required to conduct the mining operations skillfully and carefully, but the lessors intended by the stipulation in question to make themselves the judges of the fact, with authority to direct the place and number of the pillars necessary to accomplish the purpose. Had the pillars been removed, or an insufficient number of pillars been left in the progress of the mining, it is apparent that it would have greatly diminished the quantity of coal which could have been removed from the mine, and consequently the amount of royalty which the lessors would have received. It was therefore necessary that the lessors secure their interests by a provision in the contract that they might, at any time during the progress of the mining, require the lessee to protect the mine by additional pillars of such extent and in such locality as the lessors might designate. This was the manifest purpose of the clause in question. After all the coal, except the pillars, had been mined, and the pillars were no longer needed to protect the mine and the mining operations, the lessee was authorized by the contract to remove them and account to the lessors for the royalty.

The assignments of error are overruled, and the decree is affirmed.

(217 Pa. 542)

In re CARTER'S ESTATE. (Supreme Court of Pennsylvania. April 22, 1907.)

WILLS-CONSTRUCTION-DEATH OF LIFE TEN

ANT.

Testator created a trust for his children for life, and directed that after the death of any such child the principal of its share should be paid to any widow, husband, or children surviving such child, in the manner provided by the intestate laws, and, in default of such widow, husband, or children, then to the brothers and sisters of such deceased child, share and share alike. A son died, leaving a widow, but no children. Held, that his personalty should be distributed one half to the widow of the deceased son, and the other half to testator's surviving children.

Appeal from Orphans' Court, Philadelphia County.

In the matter of the estate of William T. Carter, deceased. From a decree sustaining exceptions to adjudication, Katharine E. Carter appeals. Affirmed.

Argued before MITCHELL, C. J., and BROWN, MESTREZAT, POTTER, ELKIN, and STEWART, JJ.

H. Gordon McCouch, for appellant. John G. Johnson, for appellees.

BROWN, J. Katharine E. Carter, a daughter-in-law of William T. Carter, deceased, claims the entire share of his estate which he left in trust for a deceased son, her husband, Charles J. J. Carter, who died without leaving children. The following is the clause in the codicil to the will of the testator under which this claim is made: "The rest, residue and remainder of my estate, real and personal, I order and direct the said trustees to hold in trust for my children share and share alike, until their arrival respectively at the age of twenty-three years, with full power to the said trustees to apply so much of the income of the share of any such child which may in their judgment seem proper for their liberal maintenance and education; and upon the arrival of any of said children at said age, to pay the onefourth part of the principal of the share coming to said child to him or her, absolutely, and to retain in trust for each of my said children the other three-fourths part thereof, to pay him or her the income thereof during his or her natural life, and at and immediately after the death of any such child to pay the principal of said share to any widow, husband or children surviving any such child, in such proportions as are provided by the intestate laws of this commonwealth, and in default of such widow, husband or children, then to the brothers and sisters of such deceased child, share and share alike."

What the testator meant is free from all doubt. He gave to the son, Charles J. J. Carter, no power of appointment over the portion of his estate which he left in trust

for him, and the son could not have disposed of it by will. The father was unwilling that the son should do so, for he himself directed what disposition should be made of it at the son's death. That disposition is that it shall be divided among those persons who would be entitled to receive it, if the share had been the son's absolutely and he had died intestate. When the testator provided that the principal of the share held in trust for the deceased son should go to the widow or children surviving him in such proportions as are provided by the intestate laws of this commonwealth, he meant that she should receive such portion of his estate as the intestate laws would give her in it if it were her husband's. The meaning of the testator's language could not be clearer. He did not provide that she should have the husband's full share if he died without leaving children surviving, but that she should have only such portion of it as the intestate laws would give to her as a widow. They do not give her what she claims. With no children surviving a husband, the widow takes onehalf of the personalty absolutely and a life estate in one-half of the realty; with children surviving, her interest is one-third. If children of Charles J. J. Carter had alone survived, they would take the entire share of their father in their grandfather's estate, because under his will the intestate laws would give it to them. They do not give it to the widow, and she cannot therefore get it under the will of her father-in-law, which provides that she is to get only a widow's share. We are asked by counsel for the appellant to say the testator meant that only in default of widow and children can the brothers and sisters of a deceased child take. The testator did not so write his will, but unmistakably expressed his intention that in default of children the widow should take one-half of the son's share; that with widow and children surviving she should take a third, and they the remainder; and, with children alone surviving, they should take all. These are the proportions provided by the intestate laws. To read "or" "and" would not only be to read the codicil as the testator did not write it, but as he clearly did not intend to write it. On the opinion of the learned judge below expressing this view, the decree may well be affirmed.

Whether the will of the testator worked a conversion of his real estate is not, as was properly held by the court below, a material question in this distribution, and need not be decided. Under the power given to sell, there has been an actual conversion, and onehalf of the deceased son's share has been awarded to the appellant absolutely as personalty. She cannot therefore very well raise the question of conversion, and it is not raised by either of the assignments.

Both are overruled, and the decree is affirmed, with costs to the appellees.