Mr. Homer W. Williams for Kuhn.

[215 U.S. 349, 351] Messrs. Edward A. Brannon, Z. Taylor Vinson, and Vinson & Thompson for the Fairmont Coal Company.

[215 U.S. 349, 353]

Mr. Justice Harlan delivered the opinion of the court:

This case is here on a question propounded under the authority of the judiciary act of March 3d, 1891, relating to the jurisdiction of the courts of the United States. 26 Stat. at L. 828, chap. 517, 6, U. S. Comp. Stat. 1901, p. 549. The facts out of which the question arises are substantially as will be now stated.

On the 21st day of November, 1889, the plaintiff, Kuhn, a citizen of Hoio, sold and conveyed to Camden all the coal underlying a certain tract of land in West Virginia of which he, Kuhn, was the owner in fee. The deed contained these clauses: The parties of the first part do grant unto the said Johnson N. Camden all the coal and mining privileges necessary and convenient for the removal of the same, in, upon, and under a certain tract or parcel of land situated in the county of Marion, on the waters of the West Fork river, bounded and described as follows, to wit: . . . Together with the right to enter upon and under said land, and to mine, excavate, and remove all of said coal, and to remove upon and under the said lands the coal from and under adjacent, coterminous, and neighboring lands, and also the right to enter upon and under the tract of land hereinbefore described [215 U.S. 349, 354] and make all necessary structures, roads, ways excavations, air shafts, drains, drain ways and openings necessary or convenient for the mining andremoval of said coal and the coal from coterminous and neighboring lands to market.

The present action of trespass on the case was brought January 18th, 1906. The declaration alleged that the coal covered by the above deed passed to the defendant, the Fairmont Coal Company, a West Virginia corporation, on the ___ of January, 1906; that the plaintiff Kuhn was entitled of right to have all his surface and other strata overlying the coal supported in its natural state, either by pillars or blocks of coal or by artificial support; that on the day named the defendant company mined and removed coal from under the land, leaving, however, large blocks or pillars of coal as a means of supporting the overlying surface; that the coal company, disregarding the plaintiffs rights, did knowingly, wilfully, and negligently, without making any compensation therefor, or for the damages arising therefrom, mine and remove all of said blocks and pillars of coal so left, by reason whereof and because of the failure to provide any proper or sufficient artificial or other support for the overlying surface, the plaintiffs surface land, or a large portion thereof, was caused to fall; and that it was cracked, broken, and rent, causing large holes and fissures to appear upon the surface, and destroying the water and water courses.

The contract under which the title to the coal originally passed was executed in West Virginia, and the plaintiffs cause of action arose in that state.

A demurrer to the declaration was sustained by the circuit court, an elaborate opinion being delivered by Judge Dayton. 152 Fed. 1013. The case was then taken upon writ of error to the circuit court of appeals.

It appears from the statement of the case made by the circuit court of appeals, that, in the year 1902, after Kuhns deed to Camden, one Griffin brought, in a court of West [215 U.S. 349, 355] Virginia, an action, similar in all respects to the present one, against the Fairmont Coal Company, the successor of Camden. His rights arose from a deed almost identical with that executed by Kuhn to Camden. That case was ruled in favor of the coal company, and subsequently was taken to the supreme court of West Virginia, which announced its opinion therein in November, 1905. A petition for rehearing ha