E. 640; "It is quite probable that the gen- | 74 Md. 36, 47, 28 Am. St. Rep. 219, 21 Atl. eral interests of Buffalo and of the larger 690, 693, says: "And so the condemnation public are promoted by this appropriation of the street, but it by not means follows that a lot owner whose property is injured should bear the loss for the public benefit.. The power conferred by the charter of Buffalo upon the common council to 'permit the track of a railroad to be laid in, along, or across any street or public ground,' must be construed as subject to the qualification that no property rights of abutting owners are thereby invaded." In the same case Gray, J., concurring said: "Here the object was to subserve the railroad use, and the appropriation . . of this embankment is practically exclusive. The street was subjected to a new use, with consequences as direct, in the permanent deprivation of the abutting property owners' appurtenant easement, as though the railroad was operated in front of his premises upon a structure physically incapable of other uses." In Eels v. American Teleph. & Teleg. Co. 143 N. Y. 133, 25 L. R. A. 640, 38 N. E. 202, Peckham, J., says: "We think neither the state nor its corporation can appropriate any portion of the public high way permanently to its own special, continuous, and exclusive use by setting up poles therein, although the purpose to which they are to be applied is to string wires thereon, and thus to transmit messages for all the public at a reasonable compensation. It may be at once admitted that the purpose is a public one, although for the private gain of a corporation, but the Constitution provides that private property shall not be taken for public use without compensation to the owner. Where land is dedicated or taken for a public highway, the question is, What are the uses implied in such dedi cation or taking? Primarily there can be no doubt that the use is for passage over the highway. The title to the fee of the highway generally remains in the adjoining owner, and he retains the ownership of the land, subject only to the public easement." To impose any different or additional burden without compensation cannot be done by the legislature, either directly, or by granting the power to a city. We cannot assume that it was intended to do so. Such intent is not to be gathered from the statute. White v. Northwestern North Carolina R. Co. 113 N. C. 610, 22 L. R. A. 627, 37 Am. St. Rep. 639, 18 S. E. 330. The question is exhaustively discussed in Story v. New York Elev. R. Co. 90 N. Y. 122, 43 Am. Rep. 146. There is some conflict of judicial opinion in respect to what constitutes an additional burden. The supreme court of Maryland, in Chesapeake & P. Teleph. Co. v. Mackenzie, of private property for a highway subjects the land so taken merely to an easement in favor of the public, and does not devest the owner of the fee. Planting telephone or telegraph posts upon a public highway in the country is an appropriation of private property, and unlawful, unless the right to do so is acquired by contract or condemnation." After discussing the rights of the public in the street, the court proceeds to say: "Subject to these and other like rights of the municipality and the public to the use of a street for street purposes, the owner of the fee in the bed of the street possesses the same right to demand compensation for additional servitudes placed thereon that the owner of the bed of a highway in the country is entitled to. If, then, the fee in the bed of the street be in the appellee, the planting of the pole was an additional servitude imposed upon her land, for which she could claim compensation, and the act of assembly could not deprive her of it." In Broome v. New York & N. J. Teleph. Co. 42 N. J. Eq. 141, 7 Atl. 851, the chancellor says: "In order to justify the defendants in setting up the poles, it is necessary for them to show that they have acquired the right to do so, either by consent or condemnation, from the owner of the soil. The designation by the city or town authorities of the streets where the poles may be set up is not enough." The same view is held in Board of Trade Teleg. Co. v. Barnett, 107 Ill. 507, 47 Am. Rep. 453. That was an action of trespass, as the one before us. It appeared that, in addition to putting the poles upon the highway, in which plaintiff owned the fee, the employees of the com. pany "cut away the hedge because it was in their way, and they also cut down two hedge trees." The court said: "The position taken by defendant is that the state can rightfully, as it has done, authorize the county board to permit defendant to construct its line of telegraph upon the highway without the consent of the abutting landowner; that it imposes no new or additional burden thereon, and that when the public acquire an easement over land, for a compensation fully made, the public obtain all the rights the landowner had, and the state may authorize any use of it not inconsistent with its use as a highway." After stating the contention of the landowner, the court says: "The latter position is the one best sustained by authority, and rests on sounder principles. The principle is, neither the state nor a municipal corporation has any rightful authority, under the Constitution, to grant away the private property of the citizen; and if corporations quasi public, in the exercise of the right of eminent domain with which they are clothed by the sovereign power of the state, seek to appropriate it so that they may have a benefit therefrom, every principle of justice demands that they should make just compensation, whether the property taken is of little or great value. But, aside from all considerations of right and justice, the Constitution has so declared, and its mandate in that respect may not be disregarded." Indianapolis, B. & W. R. Co. v. Hartley, 67 Ill. 439, 16 Am. Rep. 624; Willis v. Erie Teleg. & Teleph. Co. 37 Minn. 347, 34 N. W. 337; Stowers v. Postal Teleg. Cable Co. 68 Miss. 559, 12 L. R. A. 864, 24 Am. St. Rep. 290, 9 So. 356; Joyce, Electric Law, § 321. That shade trees may not be removed, except when necessary for the use of the street by the public, is well settled. Lewis, Em. Dom. § 132. There are some authorities to the contrary, but we think the view taken by those cited the sound one. We have no hesitation in holding that, assuming that the board of aldermen of the city of Asheville had met and formally granted to the defendants authority to remove the tree, finding that its removal was necessary to put up its poles and wires either for the electric light or street railway up on and along the sidewalk, such action would not have justified the act of defendants. It was not within the power of the city to deprive the plaintiff of his property for such purpose without compensation. We find, however, no averment or evidence that it was necessary to remove the tree. It is suggested that it was more convenient to place the poles and string the wires with the tree out of the way. This falls far short of the essential conditions upon which private property may be taken, or burdens imposed upon it. The right of eminent domain has been so freely conferred upon corporations, upon the mere suggestion that their business is in some way connected with service to the public, that we are in danger of forgetting that it is one of the most delicate and dangerous powers conferred by the people upon their government. Public franchises have been so generously and lav ishly conferred and so freely used without compensation that those who wish to enjoy them forget that one of the chief ends for which government is created and taxes paid is the protection of private property, and then only with compensation. The record in this case shows that a valuable right of property, affecting the comfort, health, and welfare of the citizen and his family, has been taken, upon the suggestion of a private corporation to the superintendent of streets, without inquiry by the board of aldermen, notice to the plaintiff, or any op portunity to be heard in defense of his rights. No person shall be deprived of his property, except by the law of the land, or due process of law, which has been defined to mean the right to be heard before he or his property is condemned. This sacred right is binding upon every department of the government, and all of its agencies, including municipal and private corporations. While it is held in Tate v. Greensboro, 114 N. C. 392, 24 L. R. A. 671, 19 S. E. 767, that the power to remove shade trees, where their removal is necessary for the use of the street as a public highway, may be conferred upon the street committee, it would be more in accordance with due and orderly procedure to do so only after due notice to the owner, and a hearing before the legis lative body of the city. The tree was cut on March 21, 1901. This action was brought on July 5, 1901. On September 16, 1904, the board of aldermen adopted a resolution reciting that the action of three corporations named, "or one or more of them, in cutting down and removing the tree in front of the place then owned and occupied by B. C. Brown," etc., "some years ago, in putting a line of street railway and appurtenances upon said street in front of said property, or replacing thereon certain light wires, be and is hereby ratified and confirmed, said tree having been so cut and removed by direction of the proper authorities of the said city." It is evident that at the time of the passage of this resolution the board were not certain to what corporation the power was given to cut the tree, or for what purpose it was conferred. It is not suggested in the resolution that it was necessary to remove the tree, or that it interfered with the street railway or the light wires. Indeed, it is apparent that the board knew but little about the matter which they "ratified and confirmed." We have discussed the case upon the assumption that the tree was on the sidewalk. The testimony shows that, while the condemnation took place in 1892, the land had never been used as a sidewalk. The plaintiff testified without contradiction that he had at the time the tree was cut lived at the place six years, and "there had never been any sidewalk there." The tree was removed in March, 1901, and the hole out of which it was taken, "about 10 feet square," was open at the time of the trial. The tes timony further shows that the tree was cut by the superintendent of the defendant comDanies while Mr. Brown was away from home: that, when his wife phoned him, and he directed her to forbid the removal of the tree, the parties gave no heed to her request; and that in some way the wires connecting the phone were cut. We are impressed with the wisdom of the words of Judge Peckham in concluding his opinion in Eels v. American Teleph. & Teleg. Co. 143 N. Y. 133, 25 L. R. A. 610, 38 N. E. 202. Referring to the argument that cases of this character should be decided with reference to the wants of an advancing civilization, which is doing so much to render life more comfortable and attractive, he says: "Let the defendant pay the owners for the value of the use it makes of the land outside and beyond the public easement in the highway, and the necessity of the broader decision is done away with. It has the power to take the land upon making compensation, and hence the refusal of an owner will not stop the proposed undertaking." We have carefully examined the record and the exceptions to His Honor's rulings. We find no error of which the defendants can complain. We are of the opinion that the allegations were sufficient to entitle the plaintiff to demand exemplary and punitive damages, and the testimony shows ample ground upon which to base the claim. In the entire transaction there was on the part of the defendants a painful disregard of the rights of the plaintiff. While extensive powers and wide discretion are given municipal authorities for the discharge of their duty to the public, it should always be borne in mind by those who serve in public positions that in our system of government there is no room or place for arbitrary power. The law which is a rule of action for the citizen is equally so for the official. Every man, when his right of person or property is invaded, has a right, and it is his duty, to demand "quo warranto." The judgment must be affirmed. PENNSYLVANIA SUPREME COURT. YOUGHIOGHENY RIVER COAL COM-27 L. ed. 531, 2 Sup. Ct. Rep. 536; Buchanan v. Andrew, L. R. 2 H. L. Sc. App. Cas. 296. PANY, Appt., v. The object of the bond was to indemnify plaintiff against liability for damages, and it should be interpreted so as to give that indemnity, unless the words prevent such construction. Jones, Construction of Contracts, pp. 355, 359. To enable the court to say that the words "skilful and careful mining," which have a definite, certain meaning of their own, contemplate surface support, it must have evidence of usage giving them such meaning. Lewis v. Fothergill, L. R. 5 Ch. 103; Buchanan v. Andrew, L. R. 2 H. L. Sc. App. Cas. 296. lands and minerals, the fact that the surIn construing grants or reservations of face owner is entitled to support for his lands in their natural state is a controlling circumstance. Coleman v. Chadwick, 80 Pa. 81, 21 Am. Rep. 93; Jones v. Wagner, 66 Pa. 429, 5 172 Pa. 441, 33 Atl. 690; Humphries v. Am. Rep. 385; Pringle v. Vesta Coal Co. Brogden, 1 Eng. L. & Eq. 241; Hill v. Pardee, 143 Pa. 101, 22 Atl. 815; Carlin v. Chappel, 101 Pa. 351, 47 Am. Rep. 722; Matulys v. Philadelphia & R. Coal & I. Co. 201 Pa. 70, 50 Atl. 823. Messrs. John D. Brown and Shiras & Dickey for appellees. Mestrezat, J., delivered the opinion of the court: The defendants were the owners of cer .. tain coal lands in Westmoreland county, conveyed to their predecessor in title in 1862, by the following grant: "All the main working vein of coal underlying the farm on which party of the first part resides, situate in Sewickley township, Westmoreland county, Pennsylvania, etc. With the right to take and carry away said coal, with the privilege to air and drain his openings while taking out, and for any other purpose that he, or his assigns, may need said openings for." After the conveyance of the coal, the owner of the land, by deed dated March 24, 1871, conveyed the tract to one R. G. Greenawalt, with the following reservation: "The said parties of the first part reserve all of the now worked 6-foot vein of stone coal, also the right and privilege for themselves, their heirs, and assigns, of digging, mining, and carrying away said stone coal." In 1892 the defendants sold and conveyed said coal to the Youghiogheny River Coal Company, the plaintiff, and gave to the company an obligation, dated February 29, 1892, conditioned, inter alia, that they would "well and truly protect and indemnify said Youg-murrer, and the plaintiff has appealed. hiogheny River Coal Company from any liability for any damage which may sult to the surface of the tracts of lands overlying the coal land purchased by said coal company from said obligors and others, or to improvements thereon, by reason of the skilful and careful mining and taking away of the said coal." Soon after the purchase of the coal land, the Youghiogheny River Coal Company took possession of it and began mining operations. Subsequently R. G. Greenawalt, the owner of the tract of land, except the coal conveyed to the coal company, brought an action against the coal company for damages, alleging that it had so carelessly, negligently, and unskilfully conducted its mining oper: remove said coal in the manner contemplated by said agreement, which mining and removal caused a subsidence of certain surface lands, owned by one Richard Greenawalt, overlying a part of the same, and by reason of such subsidence certain springs on the surface land of said Greenawalt were injured, an upper vein of coal damaged, and certain buildings thereon cracked;" that the verdict against it in favor of Greenawalt was "recovered upon the allegation and proof that the Youghiogheny River Coal Company had not supported the surface lands of the said Greenawalt in its mining operations." The defendants demurred to the statement, on the grounds that the declaration admits the lack of due care and skill in the mining performed by plaintiff, and that "the admission in said declaration that there had been a recovery against the plaintiff for failing to afford support to the overlying surface is an admission that the plaintiff in this tions in giving proper support to said suraction had not used all ordinary precauface." The court below sustained the de re ations as to cause the surface of his land to break and subside, resulting in injury to the land, the clay, and upper coal vein therein, and improvements thereon. The case was tried, and resulted in a verdict and judgment in favor of Greenawalt. Thereupon the present action was brought by the Youghiogheny River Coal Company on the obligation of the defendants, referred to above, to recover the damages and expenses which the coal company was compelled to pay by reason of the suit brought against it by Greenawalt. The statement avers that the "Youghiogheny River Coal Company entered into possession of the same [coal], and proceeded in a careful and skilful manner, according to the usual and customary methods of mining practised in the bituminous coal district, to mine and In support of its appeal, the plaintiff company contends that the words "skilful and careful mining and taking away of the said coal," in the obligation or agreement on which this suit was brought, refer to the method and manner of working the coal, and that failure to leave sufficient coal in place to support the overlying surface is not unskilful and careless mining. The defendants' position is that "skilful and careful mining and taking away of the said coal," as used in the obligation of the defendants, is referable to the support of the surface, and that "the proper support of the surface is a part of the skilful and careful mining and taking away of said coal.” that the averment in the statment that the It is therefore claimed by the defendants plaintiff company had failed to support the surface is an admission of lack of care and skill in mining and removing the coal under the Greenawalt surface. land resulting in the ownership of the surThere may be a horizontal division of face by one person and the ownership of the subjacent vein or seam of coal by another person. When there has been a severance of ownership of the surface and the coal, the owners of the respective estates hold them as estates in land, and, of course, the title and rights of each depend upon his conveyance. If the owner of the whole fee conveys the coal in the land in general terms, as in this case, retaining the residue of the tract, the purchaser acquires the coal with the right to mine and remove it, provided he does so without injury to the The defendants being required "to leave every pound of coal untouched under the land" if necessary to support the surface (Noonan v. Pardee, 200 Pa. 474, 55 L. R. A. 410, 86 Am. St. Rep. 722, 50 Atl. 255), what was the purpose and intention of the parties in giving and receiving the obligation in question? We must assume-what the experience of everybody teaches--that the parties were prompted by the motive of self-interest in this transaction. The price which the defendants would demand and the plaintiff would agree to pay would necessarily depend upon the amount of coal which could be mined and removed from the land. When, therefore, the defendants agreed to sell and convey the coal, the basis upon which they fixed the selling price was the quantum of workable coal. This, in turn, would depend upon the depth of the coal under the surface, and the character of the strata of stone and earth overlying it. It was under these circumstances that the defendants executed and delivered to the plaintiff the obligation in question at or about the time of the delivery of the deeds. The superincumbent estate. His estate in the coal, like that of the owner of the surface, is governed by the maxim, Sio utere tuo ut alienum non lædas. The owner of the surface is entitled to absolute support of his land, not as an easement or right depending on a supposed grant, but as a proprietary right at common law. Carlin v. Chappel, 101 Pa. 348, 47 Am. Rep. 722; 2 Snyder, Mines, § 1020. Support for the superincumbent estate is of natural right, and is part of the estate reserved to the owner of the surface. Coleman v. Chadwick, 80 Pa. 81, 21 Am. Rep. 93. And this right which the servient estate owes to the dominant estate does not depend upon whether the mining operations are conducted skilfully or negligently and carelessly. Pringle v. Vesta Coal Co. 172 Pa. 438, 33 Atl. 690; Noonan v. Pardee, 200 Pa. 474, 55 L. R. A. 410, 86 Am. St. Rep. 722, 50 Atl. 255. In the Pringle Case it is said: "If the owner of the coal undertakes to mine and remove it, as he has an undoubted right to do,and damage results to the surface, either (a) from negligence in conducting his mining operations, or (b) from failure to prop- | defendants, believing and relying upon the erly and sufficiently support the surface, or (c) from both these causes combined, the surface owner is entitled to recover compensation for such injury as he may show he has sustained." And this is the law of England, whose decisions we have followed in holding the surface owner entitled to absolute support for his estate. Harris v. Ryding, 5 Mees. & W. 60; Humphries v. Brogden, 1 Eng. L. & Eq. 241. In this last case, Lord Campbell, Ch. J., delivering the opinion of the Queen's bench, remarks: "It seems to have been the unanimous opin-tity he could mine and remove to an union of the court [in Harris v. Ryding] that there existed the natural easement of support for the upper soil from the soil beneath, and that the entire removal of the inferior strata, however skilfully done, would be actionable if productive of damage by with drawing that degree of support to which the owner of the surface was entitled; the duty of the owner of the servient tenement forbidding him to do any act whereby the enjoyment of the easement could be disturbed." Under the titles of the respective parties, it is clear that Greenawalt was entitled to absolute support for surface overlying the plaintiff's coal, and that, if the company deprived him of it in mining the coal, it was liable for the consequent injury to him, regardless of whether the mining operations were conducted skilfully or negligently and carelessly. His right to actual support for the surface of his land was a natural and property right, and did not depend upon the manner in which the subjacent coal was removed. sufficiency of the superincumbent strata to afford absolute support to the surface, were willing to assume responsibility for the breakage of the surface in mining and removing all the coal. This made certain the amount of coal accessible for mining and necessarily greatly enhanced the value of the tract to the purchaser. By their deeds the defendants conveyed to the plaintiff company the coal but, under the servitude imposed on their title by the laws of the state, the purchaser was restricted as to the quan certain amount, or possibly, to no part of |