statements of the case are sufficient to absolve the defendants from liability. It appears from the case that, in consequence of the defendants' workings, the land and buildings of the plaintiffs subsided: that the land would have subsided without the buildings, that all the pillars *provided for by the lease had been left, [394 and that there was nothing in the course adopted by the defendants in their coal workings contrary to the usual course of mining in the district. It would have been better if, instead of this negative statement, there had been a positive statement that tho mine was worked in a good and workmanlike manner, and according to the usage of the district; but we think the actual statement necessarily amounts to this. The statement, that enough pillars might have been left to support the surface is of an obvious truism, and ought to have no effect. We think, therefore, that the defendants have only done what they were authorized to do by this lease, and that for the reasons above given they are entitled to our judgment. This makes it unnecessary to consider the other questions argued before us, viz., to what extent the plaintiffs are entitled to recover. BRAMWELL, B. In this case the defendants have a lease of a seam of coal. It may not appear of much consequence by what name their interest is called, but the word "lease" may in such cases have helped to a particular conclusion. For by that word we commonly understand a temporary estate granted in something which, at the end of the term, is to be restored to the lessor in the condition in which it was delivered to the lessee, fair wear and tear excepted, as in a lease of land, house, or moveable chattel. But that is not the intention of a lease of a seam of coal. That is more a sale of the coal, or grant of a right to take and remove it within a certain time, and it is not to be restored at the end of that time to the grantor. Treat it as a sale of the coal, provided the vendee get it all within a certain time, and why should the grantor be at liberty to say "Though in terms I sold the whole of it, yet by implication I reserved as much as was necessary to support the surface in its natural condition." Why should not the argument be good, "If you meant that exception you should have said so in words." Suppose a sale of brick earth or gravel, by metes and bounds, and suppose the vendee took it all, and suppose then the soil of the vendor outside the boundary crumbled in for want of lateral support, would the vendee be liable to a claim in respect thereof by his vendor, and if he would, why? With great respect such a *deal- [395 ing with a scam of coal is more like selling the materials of an intermediate floor than letting or selling the floor. Suppose a man with a three-storied house sold the materials of the second floor, would he have a right to say, " But you must leave enough to support my third story, or you must prop it up?" It is true a lessee of a mine may take all the coal, and artificially prop the surface; but, practically, this is impossible owing to the expense; and the same argument applies, viz., why did not the grantor stipulate for it? It may be said that if this argument is true of a lease or grant of coals, to be taken in a certain time, it would be equally so of a grant to be taken whenever the grantee thought fit; if so, of all cases where the ownership of mines and surface was served; and that the authorities are overwhelming the other way. But, in the first place, the argument is not so strongly applicable where the grant allows that grantees to take at any time, because a grantor may well allow his lands to be let down, provided it is to be done within a certain time, where he would object if he could not tell for all futurity when it might happen. In the next place, where the terms of the severance, are not known, but only that there is a severance, then it may as well be presumed one way as the other. That is a case ownership, not contract as this is. Here the terms of the contract that gives the right to take the coal are known, and the question is why does not the general principle apply, viz., look at what is said the deed, and add nothing, except from a necessity for doing so. Then those terms give the defendants the whole of the coal, for there is no difference between the words " the coal" and "all the coal," and indeed the words here are "all that seam." Then what necessity is there for implying a matter contradictory thereto, viz., that the right is not to the whole of the coal, but only a part, leaving enough to support the surface? But supposing these would be right principles on which to decide this case, and I am not sure they would, I have great difficulty in applying them to this case, and in adopting the forcible arguments of my Brothers Martin and Cleasby. For the cases have established that where there is a severance of mines from the rest of the soil, however it may have been created, what the learned counsel for the plaintiffs called the natural right is, that 396] those entitled to the mines, and those entitled to the residue of the soil, must each so use his part as not to injure the other; probably on the basis of the inaxim, sic utere tuo ut alienum non lædas. This rule was alleged by the plaintiffs, and indeed admitted by the defendants' counsel to apply to cases where the mines were leased. And it was agreed that the question must depend on the terms of the lease, and whether from them this natural or ordinary right had been given up by the lessor. For these positions Harris v. Ryding (1) Humphries v. Brogden (2), Smart v. Morton (3), Rowbotham v. Wilson (†), Dugdale v. Robertson (5), Taylor v. Shafto (6), and other cases were cited. It seems to me that Dugdale v. Robertson (5) is not easily distinguishable from this case. Assuming this rule to apply to leases, we must examine the deed to see if there is anything to take away this so-called natural right. Now the lessees are to pay by an acreage rate no doubt, and so if they have to leave pillars they will pay for - what they do not take. It may be they have allowed for this in calculating the rent. It is expressly provided that the measurement is to include "all ribs and pillars left in working the said coal," except certain named pillars. They will therefore have to pay for something including in the acreage which they must or may have to leave for any reason, and why not then for pillars to support the surface? Further, it was said that the obligation which is laid on the lessees to leave certain named pillars precluded the necessity of leaving others, on the principle of expressio unius est exclusio alterius. But this is not so. That maxim only applies where the expressed matter would be superfluous if the implied were expressed or assumed. That is not the case here. The named pillars are to be left for wholly different purposes than the general support of the surface. This was decided is Dugdale v. Robertson (5) see per Wood, V. C., in Shafto v. Johnson. (7) In the result I find nothing to limit that natural or ordinary right, if it exists in cases of leases of mines, and so far I should have great difficulty in deciding against the plaintiffs. Taylor v. Shafto (6) and Shafto v. [397 Johnson (7) are in no way contrary to Dugdale v. Robertson (5). In those cases it was held, both at law and in equity, that the lessor of the mines had made the lessee covenant to do what was inconsistent with the leaving supports for the surface. The Vice-Chancellor says (9), "I can come to only one conclusion, viz., that there was an intention that all the coal that could be got, regard being had to the safety of the mine, should be got." The second question is this: the defendants' lessor Sotheron, conveyed the whole of the premises, including the reversion in the mines, to Roberts; Roberts reserving to himself the rent and reversion of the mines, fire-clay, other clay, stone and minerals, granted and conveyed the residue of the soil to the plaintiffs. And it was contended by the defendants, that by this conveyance the grantees took without a right to support for houses built over the mines, and without a right to recover damages for injury to houses arising from the surface being let (1) 5 M. & W., 60. (*) 3 K. & J., 695. (6) 8 B. & S.) 228. down by mining operations. This undoubtedly is so, if those mining operations were carried on by Roberts, or by his lessees, under leases granted subsequently to the conveyance to the plaintiffs. But it was said by the plaintiffs not to apply to the defendants, who were lessees at the time of the conveyance to the plaintiffs. I think it does. The lease of June, 1840, under which the defendants have the right to work, is mentioned in the conveyance to the plaintiffs, and the words are general and unqualified: "Roberts, his heirs or assigns, tenants or lessees, shall not be responsible for damages caused to dwellings which shall hereafter be erected," by mining operations. And it is clear that as the mines and the reversion to the mines were separated from the rest of the soil, Roberts covenants with the plaintiffs for the performance of the same matters for the benefit of the surface owners that the lessees had covenanted with Sotheron to perform for their benefit. And it is also clear that a power of distress which is given to the plaintiffs, would enable them to distrain on the defendants' goods. It is asked, why are the defendants to have the benefit of an arrangement to which they are not party or privy? The answer is, that the 398] very foundation of the plaintiffs' case is a *right to support as against the defendants, and if the plaintiff's have taken their estate without that right the defendants incidentally get a benefit perhaps not contemplated. It may be that Roberts thought the defendants entitled to work so as to cause subsidence of the surface. It may be, though we cannot see why, that he wished them to be so entitled. Be that as it may, it seems clear to me that the plaintiffs have taken their estate subject to a right in Roberts and his tenants, including the defendants, to damage the surface houses without a liability to compensate the plaintiffs and their tenants. It is as though a man owned farms A and B, and granted B, reserving a right of way over it to himself as owner, and his tenants, of A. This would operate as a grant by the grantee of B, and would enure for the benefit of an existing lessee of A. It would be strange if the defendants could surrender their lease, and then on the grant of a new one have the right, and yet not have it now. But there is nothing in the conveyance to the plaintiff's to take away their natural or ordinary right of support to the land, if it exists, and therefore if there is any damage to land by subsid ence, and the defendants are not right on the first question the plaintiffs are entitled in respect of it. This is probably of small consequence, and having regard to the opinion of Martin and Cleasby, BB., I auswer both questions in favor of the defendants. Judgment for the plaintiffs. Attorneys for plaintiffs: Pattison, Wigg, & Co. Attorneys for defendants: Singleton & Tattershall. IN THE COURT OF PROBATE AND DIVORCE. April 20, 1872. *COTTRELL V. COTTRELL. [L.R., 2 Probate and Divorce, 397.] [397 Two Wills Revocation Appointment of Executor revoked without express Words of Revocation — Costs. A testator by his first will, executed in England according to English law, disposed of all his realty and personalty and appointed an executor. By his second and last will, executed in Italy, where he was domiciled at the time of his death, according to the law of Italy, he appointed his wife his universal heiress, and the will contained a revocatory clause in the following terms: "I erase, revoke, and annul every other act or last will which I may have made." The Court held that the Italian will revoked the disposition of the personalty and the appointment of executor contained in the English will, and that the Italian will alone was entitled to probate. The executor of the English will, who propounded it as entitled to probate with the Italian will, was condemned in costs. THE testator, Henry Count Cottrell, was an Englishman by birth, but he had lived for many years in Italy and had acquired an Italian domicile, and he died at Nervi, in Italy, on the 15th of March, 1871. He left two wills: the first executed in England, according to the form prescribed by the law of England, on the 8th of April, 1850; the second, executed in Italy, according to the form prescribed by the Italian law, on the 20th of December, 1865. The English will disposed of all his property, real and personal, and appointed his brother, the defendant, executor; the Italian will appointed his wife, the plaintiff, his universal heiress, and contained a general revocatory clause. On the 7th of April, 1871, the defendant proved the English will in common form, and the plaintiff afterwards called in that probate and in. stituted this suit for the purpose of having it revoked. The question raised by the pleadings was whether the Italian will revoked the appointment of the defendant as executor contained in the English will. The cause came on for hearing before the Court without a jury. The clauses of the Italian will on which the question turned were as follows: "I erase, revoke, and annul every other act or last will which I may have made, willing that this my present will shall receive all its efficacy and execution." After making certain bequests, the will continued: "In respect of all my other goods, real or personal rights and shares, and of all and whatsoever I may find myself having, enjoying, and possessing at the day of my *demise, in whatever locality placed and situ- [398 ate, as my universal heiress I nominate and will to be the |