Com. v. Fitzmartin

• Decision Date: 12 January 1954
• Citation: 376 Pa. 390,102 A.2d 893
• Parties: COMMONWEALTH v. FITZMARTIN et al.
• Court: Pennsylvania Supreme Court

Page 893

102 A.2d 893

376 Pa. 390

COMMONWEALTH v. FITZMARTIN et al.

Supreme Court of Pennsylvania.

Jan. 12, 1954.

Rehearing Denied March 3, 1954.

H. F. Stambaugh, Sp. Counsel, Dept. of Justice, Harrisburg, S. M. Jackson, H. Albert Lehrman, Deputy Attys. Gen., Frank F. Truscott, Atty. Gen., for appellant.

Elkins Wetherill, Philadelphia, for appellees.

Before STERN, C. J., and STEARNE, JONES, BELL, CHIDSEY, MUSMANNO and ARNOLD, JJ.

BELL, Justice.

The Commonwealth filed a bill or complaint in equity to restrain defendants from engaging in strip coal mining on certain lands in Jefferson County owned by the Commonwealth. Defendants filed an answer averring their right as lessees of the mineral rights in this land to strip mine the coal on the surface. The parties agreed upon a stipulation of facts. The Court below denied plaintiff's application for an injunction, but retained jurisdiction in the matter in order to compel, if necessary, the defendants to comply with their statutory obligations to replace the over-burden and make the plantings and otherwise fully comply with the statute covering strip mining.

The narrow question involved on this appeal is: Does the reservation of mineral rights in the several deeds of conveyance of this tract of land give the defendants, who are the lessees of the mineral rights, the right to remove coal and other minerals from the land of the plaintiff by the open pit or strip mining method, or are they restricted to shaft or deep mining?

Plaintiff, Commonwealth, is the owner of a certain tract of unimproved mountain land containing approximately 3,471 acres situated (partially) in Jefferson County, Pennsylvania, acquired by nine separate deeds, the first of which is dated September 12, 1921, and recorded June 19, 1923, and the last of which is dated April 10, 1923, and recorded June 19, 1923. Each of these deeds contains the following mineral reservation: 'Excepting and Reserving all the coal, oil, natural gas, and other minerals, in and under the surface of said land; ¹ together with the exclusive and perpetual right of ingress, egress and regress into and upon said lands to examine, search for, mine, manufacture and prepare said coal, oil, gas and other minerals for market; to take, remove and transport the same therefrom as well as coal, oil, gas and other minerals from other lands; to build and construct shafts, drifts, air shafts, bore holes, gangways, headings, roads and drains in, through, upon and under said surface; to pump water from the mines and run same on said surface; to locate and erect such fans, engines, machinery, buildings, shafts, drafts, and other structures, with the necessary curtillage, as may be necessary for the convenient use, ventilation and working of the mines and works appurtenant thereto and to manufacture coke; to use sufficient and convenient portions of surface to deposit dirt and waste from the mines, and for the location and erection of miners' dwellings, tenements, office, stores and other buildings; without any liability whatsoever for damages to said lands or for injury to or diversion of waters flowing in, through, under and upon said land.'

The defendants are the lessees of the mineral rights in the said tract by virtue of an unrecorded lease, dated December 1, 1951 from the plaintiff's grantor. The Commonwealth does not claim title of any nature to the coal in question, but contends that neither the defendants nor any other person who has title to the coal under the reservation has the legal right to remove it by the strip mining method, thus destroying the surface. The coal which the defendants have been removing by the strip mining method cannot be removed by deep mining.

The surface of the land in question is rocky, hilly and mountainous. The trees thereon are second-growth, healthy hardwood, in what is known as the pole stage, the trunks of which are six to twelve inches in diameter. The trees and plant life throughout the area are suitable for game habitat, hunting and recreation and the growth is also useful for soil conservation and the retention of surface waters for the prevention of floods. The surface of the above-described tract of land contains no buildings or permanent improvements; there are no railroad lines on the tract, no public highways, and no improvements of any kind which would be affected by the proposed strip mining of the defendants. The land was acquired by the Commonwealth at a nominal price as an area for the conservation, protection and propagation of wild life.

This deed, like many instruments leasing or conveying coal lands or reserving rights therein, does not clearly set forth or define the rights of the parties. Where a deed or agreement or reservation therein is obscure or ambiguous, the intention of the parties is to be ascertained in each instance not only from the language of the entire written instrument there in question, but also from a consideration of the subject matter and of the surrounding circumstances. Price v. Confair, 366 Pa. 538, 542, 79 A.2d 224; see also Commonwealth v. Fisher, 364 Pa. 422, 430, 72 A.2d 568.

Justice Musmanno said, in Rochez Bros., Inc., v. Duricka, 374 Pa. 262, 265, 97 A.2d 825, 826: '* * * Strip mining, as the term indicates, is the stripping away of the earth surface and the horizontal withdrawal of the mineral deposits at hand. Shaft mining involves the sinking of a vertical shaft into the ground and the developing from that point of tunnels and galleries which serve as vantage points from which to withdraw and life the coal deposits through the shaft. Shaft mining does a minimum of damage to the outer crust of the earth; strip mining does a maximum of damage. Strip mining is effected through steam shovels and bull dozers which turn up the top layer of the earth * * *.'

In Smith v. Glen Alden Coal Co., 347 Pa. 290, at page 304, 32 A.2d 227, at page 234, Chief Justice Maxey said: 'It is well recognized in Pennsylvania that there may be three estates in land, namely, coal, surface, and right of support, so that one person may own the coal, another the surface, and the third the right of support. Charnetski v. Miners Mill's Coal Min. Co., 270 Pa. 459, 113 A. 683. 'In the absence of express waiver * * * (or one clearly implied) the grantee of minerals takes the estate subject to the burden of surface support.' Penman v. Jones, 256 Pa. 416, 422, 100 A. 1043, 1044. 'Where there is a separation of the minerals from the surface, the owner of the mineral estate owes a servitude of sufficient support to the superincumbent estate.' Graff Furnace Co. v. Scranton Coal Co., 244 Pa. 592, 91 A. 508, 509. This servitude of support is an estate in land, sometimes referred to in this commonwealth as 'the third estate'. See Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322, and Fifth Mut. Bldg. Soc. Appeal, 317 Pa. 161, at page 168, 176 A. 494.'

It is well established in Pennsylvania that the owner of the surface land has a proprietary right to the support of the surface; it is equally well settled that that right may be waived either expressly or by implication. Commonwealth v. Fisher, 364 Pa. 422, 72 A.2d 568, supra; Graff Furnace Co. v. Scranton Coal Co., 244 Pa. 592, 91 A. 508; Stilley v. Pittsburgh-Buffalo Co., 234 Pa. 492, 83 A. 478, 41 L.R.A.,N.S., 236; Gordon v. Delaware, Lackawanna & Western R. R. Co. (No. 1), 253 Pa. 110, 97 A. 1032.

The Commonwealth bases its claim upon the following grounds: (a) that nearly all, and therefore considering the instrument as a whole, all the reservation of mineral rights contains language which is peculiarly applicable to shaft or deep mining; and (b) that the reservation contains no express or implied reservation of the right of strip mining, and (c) that the recent case of Rochez Bros., Inc., v. Duricka, 374 Pa. 262, 97 A.2d 825, supra, rules this case in its favor. The defendants, who are lessees of the mineral rights, claim a right to strip mine the coal upon the following grounds: (a) that the general language of the reservation is broad enough to include strip mining; (b) that there is no prohibition against strip mining, nor limitation of mining to deep mining; (c) that they are expressly given the right to mine all coal on the land, together with a release of liability for damages to the land; (d) that the nature of the land involved is unimproved rocky mountainous terrain; and (e) that the following cases which the learned Chancellor, in a very able opinion relied upon, are analogous and controlling: Commonwealth v. Fisher, 364 Pa. 422, 72 A.2d 568, supra; Commonwealth v. Clearview Coal Co., 256 Pa. 328, 100 A. 820, L.R.A.1917E, 672; Kirwin v. Delaware, Lackawanna & Western R. R. Co. (No. 1), 249 Pa. 98, 94 A. 468; Graff Furnace Co. v. Scranton Coal Co., 244 Pa. 592, 91 A. 508, supra; Stilley v. Pittsburgh-Buffalo Co., 234 Pa. 492, 83 A. 478, supra.

Each of the deeds in this suit contains a reservation excepting and reservingall the coal, oil, natural gas and other minerals in and under the surface of said lands; the exclusive and perpetual right of ingress and egress into and upon said lands, to search for, mine, and prepare said coal and other minerals for market; to take, remove and transport all the coal in and under the surface of said land 'without any liability whatsoever for damages to said lands * * *'.

In Commonwealth v. Fisher, 364 Pa. at page 424, 72 A.2d at page 569, supra, the deed in question contained the following provisions: "* * * the said parties of the first part hereto (the grantors) do hereby reserve to themselves their heirs executors administrators and assigns forever the full entire complete and exclusive ownership and right as though the present conveyance had not been made to all metals ores minerals coal mine-banks and deposits of ores minerals metals or coal which are or may be in or upon or which may at any time be discovered in or upon any part of...