A surface owner has the right to waive or part with the right to subjacent support, by expressing it by appropriate words in the deed granting the mineral estate.  The surface owner’s intention to waive surface support may be inferred from the terms of the grant of the mineral estate, when it contains an agreement to pay for damages to the surface.

In Commonwealth ex rel. Keator v. Clearview Coal Co., 256 Pa. 328 (Pa. 1917), the Commonwealth appealed a decree from the Common Pleas Court of Lackawanna County (Pennsylvania), that denied injunction restraining a coal mining company from mining coal under a public school building.  Lease was acquired by the coal company to remove the coal.  The coal mining company acquired a lease to remove all available coal remaining on the lots purchased by the school district.  The company removed the coal without providing adequate surface supports.  The court affirmed the decree denying the Commonwealth’s bill for an injunction restraining the coal mining company from mining coal under a public school building. It was further stated that in the purchase of land, the school district expressly waived the right of the surface support and erected its building where title to all the coal and right to remove it was in another.

In Griffin v. Coal Co., 59 W. Va. 480 (W. Va. 1905), a landowner and his grantors sold and conveyed a certain tract of land.  The conveyance agreement provided that the buyer had a right to excavate and remove all coal, including that under coterminous and neighboring lands; and the coal and mining rights were, by various deeds, conveyed to a coal company. An action for damages was filed by the landowner against the coal company, alleging that it willfully and negligently mined and removed all blocks or pillars of coal, causing the surrounding land to fall and leaving the landowner’s land unsafe and of little value. The circuit court affirmed the judgment in favor of the coal company by stating that the landowner’s deed of conveyance expressly granted the privilege of removing all underlying coal, including the lateral support, and there was no reason to believe that the landowner did not fully understand them. The court noted that it was proper to assume that the price paid for the coal and the mining rights granted was fixed with reference to the nature, extent, and effects of the rights conveyed.