quently complained of Mrs. Moyer's talking about his drinking, associating with unfit people, and about her dead mother's drinking too much, objected to rumors and disliked family secrets becoming known. This testimony of the stories in circulation about Mr. Alexander, and supposedly told by Mrs. Moyer, is corroborated by other witnesses. According to Madeline Eisenbrown and Mary Mengel, Mr. Alexander did not know the story about the first Mrs. Alexander's drinking until after her death.

It also appears in the testimony that after Mr. Alexander's father's death, Mr. Alexander found a letter from Mrs. Moyer to his father enclosing some mail and money found on Seventh street after Mr. Alexander tried to drive down the railroad tracks. When Mr. Alexander discovered this letter it made him very angry.

There was, furthermore, testimony of statements made by Mr. Alexander to the effect that Mrs. Moyer was treating him shamefully; that Clause 4 in the present will was in a number of others in the same form; that Mr. Alexander made reference to his taking care of his children to an insurance man and to an employee; and that he was a hard drinker. There was no evidence, however, to show that he was intoxicated when he executed the will in question.

It may safely be asserted as a clear fact from the testimony that there were many stories afloat about Mr. Alexander which he believed to have been started by Mrs. Moyer. She, herself, tells her father not to believe what he hears without giving her a chance to defend herself, and he speaks of stories in his own letter about the earrings. Whether Mr. Alexander is to be condemned for listening to rumors and idle gossip, or, perhaps, to false stories told by persons to discredit his own child, is not a question that this Court is called upon to decide. The only inquiry is whether there is evidence from which a jury might reasonably infer that Mr. Alexander was laboring under a mental disorder; and the result of that inquiry is that there is nothing to show that he did more than take the stories as they came to him, including the story about his dead wife, believe them and pass a very severe judgment upon the daughter.

That Mr. Alexander's own grandchildren should be

cut off with five thousand dollars a piece seems particularly cruel. It is too rigid an application of the principle of visiting the supposed sins of a parent upon the children. But here again there is no evidence from which a jury might infer a delusion-no evidence that Mr. Alexander believed something that was non-existent.

In view of all the evidence, it cannot be said that there is enough in this testimony to warrant the granting of an issue. If Mr. Alexander took offense at the occurrences detailed in the testimony and determined that Mrs. Moyer was unnatural both to himself and to her mother, there is no remedy.

And now, January 6, 1914, the appeal from the Register's decision is dismissed, and a precept is refused.

.

THE GRAFF FURNACE CO. vs. THE SCRANTON COAL CO.

Mines and Mining-Vertical Support.

Where a conveyance of a lot of land by deed excepting and reserving to the grantor all coal and minerals beneath the surface of said lot, with the sole right to mine and remove the same by any subterranean process without incurring in any event whatever any liability for injury caused, or damage done, to the surface or to the buildings or improvements which now are or may hereafter be put thereon, and the deed also stipulates that the grantee does expressly release and discharge forever the grantor from any liability for any injury that may result to the surface of said premises, or anything erected or placed thereon, because of the mining and removal of said coal, etc., and it appears that the owner of the coal mined and removed the same causing injury to the surface of said lot and the improvements thereon: Held, that the owner of the said lot is not entitled to vertical support of the surface, nor is he entitled to recover damages for injury to the surface or improvements caused by mining and removing the coal.

Bill for injunction to restrain mining of underlying Coal. Decree nisi. In the Court of Common Pleas of Lackawanna County. No. 5, October Term, 1913. In Equity.

T. P. Duffy, for Plaintiff.

J. E. Burr and Warren, Knapp & O'Malley, for Defendant.

The bill and

Edwards, P. J., January 28, 1914. answer in this case involve the question of the right of the plaintiff to surface support of its land from the owner of the underlying mineral estate. The prayer of the bill is for an injunction restraining the defendant from mining the coal under said land, "without leaving, or erecting, sufficient pillars and artificial supports to fully protect the surface."

The hearing on the rule for a preliminary injunction was had before my colleague, Judge Newcomb, who refused the injunction; and then the case was set down for a final hearing at a regular term of equity court. The evidence taken at the hearing on the rule was offered, and, by agreement, was admitted at the final hearing, supplemented by an agreement as to certain additional facts. Substantially, the evidence before me is the same as at the hearing of the rule.

At the time the case was called counsel on both sides were informed that I had a personal interest in the question of surface support, owning property some distance away from the plaintiff's land, yet within the same general mining zone, although having no interest whatever in the plaintiff's property. It was only at the joint and earnest request of all the counsel that I consented to hear the case.

I must state at the outset that the question of negligent mining has been taken out of the case by an amendment, and that the question of lateral support is not involved.

From the pleadings and the evidence I find the following

FACTS.

1. The Lackawanna Iron and Coal Company, prior to 1891, was the owner in fee of all the coal and surface of certain large tracts of land located on the West Side of the City of Scranton. On February 3, 1891, the said coal company, by warranty deed in fee simple, conveyed all the coal and minerals beneath the surface of the said tracts of land to the Lackawanna Iron and Steel Company, another corporation, and to its successors and assigns. The conveyance contained the following clauses:

(a) "Together with also all the rights of the said party of the first part to mine and remove the said coal

herein conveyed by any subterranean process incident to the business of mining, with the right to open mine and air shafts in any portion of the surface not sold and conveyed, but not the right to open any mine or air shaft upon any part of the surface which may be hereafter conveyed by the said party of the first part before said mine or air shaft is opened.

(b) "Also all the estate, right, title, interest, benefit, property, claim and demand whatsoever in law or equity of the said party of the first part, of, in and to the same and every part and parcel thereof, subject to the foregoing exceptions, conditions and reservations."

It appears, therefore, that the severance of the two estates was made in 1891, when the Coal Company conveyed all the coal, etc., beneath the surface, to the Steel company, the Coal company retaining its ownership of the surface of all the tracts of land. The aforementioned deed was duly recorded in the proper office.

2. On February 1, 1899, the Lackawanna Iron and Steel Company conveyed to the defendant, the Scranton Coal Company, in fee simple, all the coal and minerals beneath the surface of the lands described in said deed of February 3, 1891. The conveyance to the defendant contains the following clauses:

(a) "Together also with all the rights and immunities of the said party of the first part to mine and remove the said coal herein conveyed by any subterranean process incident to the business of mining as fully as the grantor possesses the same at the date of this deed, including such rights to open mine and air shafts upon the surface of said land as the grantor herein acquired by the deed from the Lackawanna Iron and Coal Company of February 3, 1891, or has since acquired from said company or any other source."

(b) "And together with all and singular the buildings, privileges, hereditaments and appurtenances whatsoever unto the said coal and mining rights belonging or in any wise appertaining, and the reversions and remainders, rents, issues and profits thereof; and all the estate, right title, interest, property, claim and demand whatsoever of it, the said Lackawanna Iron and Steel Company either in law or equity of, in and to the same, or any part thereof."

3. Having disposed of its mineral estate in said tracts of land to the Steel company in 1891, the Lackawanna Iron and Coal Company proceeded, from time to time, to sell certain parcels of the surface. Among the parcels so sold was a tract of about four acres, the property of the plaintiff in this case. The title of the plaintiff to said parcel of land is that of John Timmes and Herbert Hecht, whose deed of November 23, 1900, from the Lackawanna Iron and Coal Company contains the following exception and reservation:

"Excepting and reserving, however, to the said party of the first part, its successors and assigns, all the coal and minerals beneath the surface of and belonging to said lot, with the sole right to mine and remove the same by any subterranean process incident to the business of mining, and also the sole right of passage through or under the said lot, to mine and remove the coal and minerals from any other lands by any subterranean process, without thereby incurring in any event whatever any liability for injury caused or damage done to the surface of said lot or to the buildings or improvements which now are or hereafter may be put thereon, and the party of the second part, for themselves, their heirs, executors, administrators and assigns, does hereby expressly release and discharge forever the said party of the first part, its successors and assigns, and all persons who may have derived title to said coal or other minerals from said party of the first part of and from any liability for any injury that may result to the surface of said premises or anything erected or placed thereon, from the mining or removal of said coal or other minerals; provided that no mine or air shaft shall be intentionally opened or any mining fixture established on the surface of said premises."

The conveyance to the plaintiff recites, inter alia, the deed to Timmes and Hecht and contains the following clause: "This conveyance is made subject to all exceptions, reservations and conditions in said deeds mentioned."

4. The plaintiff has occupied the surface of the land with buildings used as manufacturing plant or foundry, and it employs in the neighborhood of one hundred persons in its works; and it expects to continue the