Gloninger v. Franklin Coal Co.
| Decision Date | 20 May 1867 |
| Citation | 55 Pa. 9 |
| Court | Pennsylvania Supreme Court |
| Parties | Gloninger <I>et al. versus</I> The Franklin Coal Co. <I>et al.</I> |
At Wilkesbarre, before WOODWARD, C. J., THOMPSON, STRONG, READ and AGNEW, JJ.
Error to the Court of Common Pleas of Luzerne county.
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S. Woodward, for plaintiffs in error.—The deed from Wickizer to Fell is a grant of a corporeal hereditament. It is a grant of coal, and coal is land. Barney v. Sutton, 2 Watts 32, is not in accordance with later authorities: Caldwell v. Fulton, 7 Casey 476. Wickizer's deed was a conveyance of the coal: Morris v. Phaler, 1 Watts 390. That Fell was described as a blacksmith is nothing, as affecting words of limitation in a deed. Clement v. Youngman, 4 Wright 346, is not analogous to this case, which is like Caldwell v. Fulton, supra.
A. T. McClintock, for defendants in error.—In Caldwell v. Fulton the grant gave "the full right, &c., to dig and take away coal to any extent the grantee might think proper under any of the lands of the grantor." This shows an unlimited grant and designates the quantity of land to which the right extends; it therefore gives a right to all the coal under those lands. In the present case the grantee has only the right to take from the "bed under the foot of the mountain." The grant is not exclusive of the grantor, but in common with him. It is to dig an open coal-bed; the grantee could not sink new pits. It is a mere incorporeal hereditament: 2 Black. Com. 20; Chetham v. Williamson, 4 East 469; Johnstown Iron Co. v. Cambria Iron Co., 8 Casey 241; Clement v. Youngman, 4 Wright 341; Lord Mountjoy's Case, 4 Leon. 147; Co. Litt. 164, b.
This case depends upon the construction to be placed upon a deed-poll, executed by Andrew Wickizer on the 1st January 1808, granting, in consideration of $6.50, unto Edward Fell, blacksmith, his heirs, executors, administrators and assigns for ever, "the free right to dig coal at the coal-bed under the foot of the mountain on my lot No. 22 in 3d division of lands in Wilkesbarre, with the privilege freely to carry the coal to and from said coal-bed through my lands at all times hereafter, doing as little damage as may be in the uses aforesaid."
The grantor was the owner of the whole tract and a resident of the township of Wilkesbarre, in which the land was situated, and the grantee was a blacksmith in the borough of Wilkesbarre.
This language does not bring the case within that of Caldwell v. Fulton, 7 Casey 478. Caldwell reserved no interest in himself. He sold for a valuable consideration all he had in the sixteen acres and all the coal in his other land — I say all, because the grant is limited to no time, or quantity, or purpose, or person. Can a reservation to the grantor be implied in the face of terms so large? What room was left for the grantor? Might he mine also? Assuredly not against the consent of his alienee, for he had sold all the coal that alienee might think proper to take or cause to be taken, ...
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