¶1dissenting.
¶2I respectfully dissent and would affirm the judgment of the trial court.
¶3Nearly ninety years ago we determined in Paull v. Island Coal Co. (1909), 44 Ind.App. 218, 88 N.E. 959 that surface owners have an absolute right to subjacent support from those who own minerals located beneath the surface.
¶4I disagree with the majority's determination that Paull should not apply to the facts before us and its determination that "Hase-man, the lessor mineral owner, was not in the best position to bear the loss. ..."
¶5Haseman owned the rights to the coal vein and to the means for its extraction. It matters little that he in turn leased the actual extraction to Coal, Inc. Haseman could determine who would perform the extraction, under what terms and conditions and under what terms for indemnification should a duty to the surface owners be breached.
¶6In my view since he possessed the rights to the coal vein and to its extraction, he remained liable to the surface owners for a breach of the duty to provide subjacent support.