Each will pass

be acquired by a title absolute and in fee in one person, whilst the right to the surface is in another. Each may be held by separate and distinct titles in severalty, and each is a freehold estate of inheritance, separate from and independent of the other. The only distinction as to the respective rights rests on the principle that the servient estate owes the servitude of affording sufficient supports to sustain the surface. The vast coal fields underlying valuable farm lands in the state of Illinois present questions of property rights in connection with the ownership of the surface which renders a strict adherence to the maxim of the common law, "Cujus est solum ejus est usque ad cælum et ad inferos," not always practicable, having regard to the interests of the owners of lands where the coal is accessible by mines already opened. The right of the owner of land to convey the coal and mineral rights underlying the land and reserving the surface absolutely in fee has long been recognized. When such conveyance is made, two separate estates exist, and each is distinct. Each may be conveyed by deed, each be devised under a will. to the heir under the statute of descent, and each is subject to taxation. In re Major, 134 Ill. 19 (24 N. E. Rep. 973). In all these phases each estate passes and must be treated as real estate. These principles are, in effect, sustained by this court in Locey Coal Mines v. Chicago, W. & V. Coal Co., 131 Ill. 9 (22 N. E. Rep. 503). Mining claims have been recognized as legal estates of freehold, Merritt v. Judd, 14 Cal. 60, and subject to partition, Hughes v. Devlin, 23 Cal. 502. The right to partition was collaterally recognized in Janes v. Wagner, 66 Pa. St. 429. Two separate estates and interests being in existence, in principle there can be no difficulty in recognizing separate titles. If these two separate interests and titles were united in one person, the maxim above quoted would apply, but the owner would have a right to sever the two estates by deed or devise. Where the owner would have that right, there is no inherent difficulty in a court of chancery severing the two estates in a partition proceeding, where it is rendered necessary in the interests of justice, and decreeing the dominant estate to one and the servient estate to another. In recognizing this principle we are applying it to the facts of the particular case before us, where

the defendants in error consented to accept the servient estate. We do not at this time determine the question whether a person not conversant with the management of the mine and without capital to operate it could be compelled to accept as his share a mine thus set off to him against his consent, nor whether a mine could be set off to a minor. In thus qualifying the rule of the common law embraced in the above quoted maxim until by an express act the owner of the surface had severed the one estate from the other, a deed or mortgage would convey the entire estate under the full application of that maxim, and the principle of notice would, in the event of such conveyance of the servient estate, be the same as under the most strict enforcement of the maxim.

As to the second point presented, it is sufficient to say that question has been affirmatively determined by the adjudications of this court in Field v. Leiter, 117 Ill. 341 (7 N. E. Rep. 279), and numerous cases cited in the opinion in that case. The decree of the circuit court is affirmed.

Note. In the recent case of Virginia Coal & Iron Co. v. Kelly, 93 Va. 332 (24 S. E. Rep. 1020), the supreme court of Virginia say: "Land includes everything belonging or attached to it. It includes the surface and whatever is contained within or beneath the surface. It includes the minerals buried in its depths or which crop out of its surface, and the woods and trees growing upon it. 2 Bl. Comm. 17-19; 2 Minor, Inst. 4; and Stuart v. Pennis, 91 Va. 688 (22 S. E. Rep. 509). And it is now a familiar doctrine that in these various subjects separate and distinct freeholds may be created and owned by different persons by separate and independent titles. One may own the surface, another the coal, and another still some other mineral, all within the same parcel of land. Each may have a fee or less estate in his respective part. 1 Washb. Real Prop. 12; 2 Washb. Real Prop. 345; Calwell v. Fulton, 31 Pa. St. 475 (72 Am. Dec. 760); Caldwell v. Copeland, 37 Pa. St. 427 (78 Am. Dec. 436); Armstrong v. Caldwell, 53 Pa. St. 287; Williams v. Gibson, 84 Ala. 228 (4 So. Rep. 350; 5 Am. St. Rep. 368); Lillibridge v. Coal Co., 143 Pa. St. 293 (22 Atl. Rep. 1035; 24 Am. St. Rep. 544; 13 L. R. A. 627), and the note thereto; Lee v. Bumgardner, 86 Va. 315 (10 S. E. Rep. 3); Barksdale v. Parker's Adm❜rs, 87 Va. 141 (12 S. E. Rep. 344)."

EPITOME OF CASES.

Sec. 622. Retroactive legislation.

Statutory provis

ions in reference to the partition of land are held to be pros

pective and not retroactive. Brown v. Challis, 23 Colo. 145 (46 Pac. Rep. 679). The court say: "Retrospective legislation has always been condemned by the courts as unfair and prejudicial, so that, in the absence of any constitutional restriction, the courts have universally construed all legislation as prospective only in its operation, unless by the plain and positive language of the act an intent was manifest to make its provisions retrospective. As this ruling of the courts was founded upon the plainest principles of natural justice, it has been extended, and given a place in the constitutions of several of the states including Colorado. These constitutional provisions, although couched in somewhat different phraseology, aim at the same evils, and are substantially alike. They have been before the courts for consideration in numerous instances, and, as a result of the decisions, the rule has become fixed, which, on the one hand, denies the right of the legislature to create a new ground for the support of an existing cause of action, or to take away any legal defense to such action, while, on the other, any ground upon which an action is founded cannot be annulled or any new bar thereto created." Citing, Railway Co. v. Woodward, 4 Colo. 162; French v. Deane, 19 Colo. 504 (36 Pac. Rep. 609; 24 L. R. A. 387); Rich v. Flanders, 39 N. H. 347; Kent v. Gray, 53 N. H. 576; De Cordova v. City of Galveston, 4 Tex. 470.

Sec. 623. As to who may have partition. A tenant in common has a right to partition and he cannot be deprived of this right on account of the fact that inconvenience or injury will result or that a division or sale may be embarrassed by difficulties. Cates v. Johnson, 109 Ala. 126 (19 Sɔ. Rep. 416). The rule that no one shall be compelled to hold property in common with another grew out of a purpose to prevent strife and disagreement and is supported by the modern policy of facilitating the transmission of title and preventing the inconvenience of joint holdings. The early remedy was limited in its scope but has been developed until, as has been said, practically the right of partition exists without regard to its difficulties; accordingly it is held that the giving of power to executors to sell land devised in fee upon agreement of the devisees does not destroy their right of partition. Caldwell

v. Snyder, 178 Pa. St. 420 (35 Atl. Rep. 996; 35 L. R. A. 198). The Nebraska Code Civ. Proc., § 802, provides that "When the object of the action is to effect the partition of real property among several joint owners the petition must describe the property and the respective interests, and the estates of the several owners thereof if known. All tenants in common or joint tenants of any estate in land may be compelled to make or suffer partition of such estate or estates in the manner hereinafter prescribed." Under this statute it is held that where the plaintiff and defendant, owntrs in severalty of adjoining lots, pursuant to a mutual agreement, erected thereon buildings corresponding in size, having the stairways, halls, skylight and heating apparatus in common, there was a grant to each of an easement in so much of the stairs, halls and skylight as is situated upon the lot of the other; that the easement of each in the property of the other is owned in severalty, and the mere existence of such cross easements does not authorize the partition of said lots at the suit of either party. Barr v. Lamaster, 48 Neb. 114 (66 N. W. Rep. 1110; 32 L. R. A. 451).

Sec. 624. Partition between life tenants and remainder-men. As between the tenant of the particular estate, whether the estate be for years or for life, and the remainderman or reversioner, there is no tenancy in common, and partition between them cannot be compelled. Kelly v. Deegan, 111 Ala. 152 (20 So. Rep. 378). Citing, Nichols v. Nichols, 28 Vt. 228 (67 Am. Dec. 699); Savage v. Savage, 19 Ore. 112 (23 Pac. Rep. 890; 20 Am. St. Rep. 795). Under the statute of Iowa partition proceedings to have the land sold cannot be maintained by a life tenant against the remainder'man. Smith v. Runnels, Ia. (65 N. W. Rep. 1002). In North Carolina, the right of a remainder-man to have partition while the dower estate is outstanding is given by statute and extends to all cases of a life estate and remainders over, except to a case where the life estate is contingent by reason of a condition annexed. Gillespie v. Allison, 117 N. C. 512 (23 S. E. Rep. 438). Under the Alabama Code, §§ 3253 and 3262, it is held that a tenant for life is entitled to the use of the money derived from the compulsory sale on par

tition the same as he would have been entitled to the use and enjoyment of the land on an actual partition, the rights of the remaindermen being properly protected and reserved by the giving or requiring of bond or the loaning of the money by the court. Kelly v. Deegan, 111 Ala. 152 (20 So. Rep. 378).

Sec. 625. Practice in actions for partition. Several parcels of land may be partitioned in one action. Grady v. Cannon, 92 Wis. 666 (66 N. W. Rep. 808). In Illinois it is held that one who relies upon a parol agreement to convey land in a proceeding for partition should ask for a decree of specific performance to be followed by an order of partition. Ellis v. Hill, 162 Ill. 557 (44 N. E. Rep. 858). Land subject to an outstanding, subsisting, unassigned dower will not be ordered partitioned upon a petition which does not ask ic have the dower assigned and the remainder of the land partitioned. Mississippi Code, 1880, § 2553, applied. Gilleylen v. Martin, 73 Miss. 695 (19 So. Rep. 482). Where the plaintiff's evidence does not show that he has any interest in or title to the land of which he seeks partition, his action should be dismissed. Strickland v. Angier, 99 Ga. 272 (25 S. E. Rep. 632). The plaintiff in a partition proceeding will not be denied a right of recovery because his title is incomplete on account of the nonperformance of a condition, the performance of which was prevented by the act of the defendant. Harris v. Wright, 118 N. C. 422 (24 S. E. Rep. 751). Amendments may be permitted after the testimony, if the opposite partv be permitted to plead and take additional testimony; the bin may pray to have the property partitioned, or if not susceptible of division, to have it sold and the proceeds divided; the award will not be set aside because of an immaterial irreg. ularity of the commissioners; and where the properties are ir several parcels the owners are not entitled to a share of each property, but only to an equal share in the whole. Claude v. Handy, 83 Md. 225 (34 Atl. Rep. 532). In partition of land under a will among devisees, charges laid upon them by the will may be decreed against the shares of the devisees on condition that they be not paid within a specified time. Simmons v. Jones, 118 N. C. 472 (24 S. E. Rep. 114). An objection to the decree for the reason that land is only set off to one