Hendler v. Lehigh Valley R. Co.

• Decision Date: 23 May 1904
• Docket Number: 280
• Citation: 58 A. 486,209 Pa. 256
• Parties: Hendler v. Lehigh Valley Railroad Company, Appellant
• Court: Pennsylvania Supreme Court

58 A. 486

209 Pa. 256

Hendler v. Lehigh Valley Railroad Company, Appellant

No. 280

Supreme Court of Pennsylvania

May 23, 1904

Argued April 12, 1904

Appeal, No. 280, Jan. T., 1903, by defendant, from order of C.P. Luzerne Co., March T., 1903, No. 276, dismissing exceptions to report of referee in case of Joseph Hendler v Lehigh Valley Railroad Company. Affirmed.

Trespass to recover damages for excavating and taking common mixed sand.

By agreement the case was referred to Rush Trescott, Esq., as referee.

From the record it appeared that on March 3, 1877, the Northern Coal & Iron Company conveyed the land, from which the sand was taken, to Peter Jumper, "excepting and reserving however, to the said the Northern Coal and Iron Company, their successors and assigns, all the coal and other minerals in, under, or upon said lot of land, and also reserving, as aforesaid, the unrestricted right and privilege of mining and removing all of said coal and minerals, or any part thereof."

On December 7, 1887, Peter Jumper and wife conveyed the land to the Lehigh Valley Railroad Company "excepting and reserving, however, to the Northern Coal and Iron Company, its successors and assigns, all the coal and other minerals under, in or upon said lot of land."

On September 30, 1890, the Lehigh Valley Railroad Company conveyed the land in question to Joseph Hendler. The deed after the description continued as follows:

"Being part of the same property conveyed to the party of the first part by Peter Jumper and wife by deed dated 7th December, 1887, and recorded in the Recorder's Office in Luzerne County, in Deed Book No. 266, page 394, etc.

"Excepting and reserving as fully and entirely as in the said indenture is excepted and reserved and further excepting and reserving all the gravel necessary for any fill or ballast for the railroad of the party of the first part, and the right to build a dam upon the said premises and flood the same with water, and to lay pipes across and under said premises, and to construct and maintain thereon such pump house or houses as may be necessary for the enjoyment of the rights and estate hereby reserved. Being also the same premises designated on the draft hereto annexed and made part of this indenture.

"Together with all and singular the ways, waters, water courses, rights, liberties, privileges, hereditaments and appurtenances whatsoever thereunto belonging, or in anywise appertaining, and the reversions and remainders, rents, issues and profits thereof; and all the estate, right, title, interest, property, claim and demand whatsoever of the party of the first part in law, equity, or otherwise howsoever of, in and to the same and every part thereof."

By an agreement in writing dated June 1, 1901, Hendler granted, bargained and sold to the Lehigh Valley Railroad Company a right of way fifty feet in width over the land in question.

In constructing a railroad over this right of way the railroad company used a large quantity of sand taken from plaintiff's land, outside of the right of way. Plaintiff claimed treble damages for the taking of this sand. The referee refused to allow treble damages, and entered judgment in plaintiff's favor for $1,859.90.

Exceptions to the report of the referee were dismissed by the court.

Errors assigned were in overruling exceptions to report of referee.

Judgment affirmed.

Stanley Woodward, of Woodward, Darling & Woodward, for appellant. -- Sand is a mineral within the meaning of the Act of May 8, 1876, P.L. 142: Com. v. Hipple, 7 Pa. Dist. Rep. 399; Griffin v. Fellows, 81* Pa. 114.

The law on the subject of the title to the materials taken from the right of way of a railroad company is that everything taken above the grade of the road may be used on other portions of the road: 1 Redfield on Railways, 264; 1 Wood's Railway Law, 658.

F. M. Nichols, with him F. C. Sturges, for appellee, cited: Dunham v. Kirkpatrick, 101 Pa. 36; Shoenberger v. Lyon, 7 W. & S. 184.

Before MITCHELL, C.J., DEAN, FELL, MESTREZAT and POTTER, JJ.

OPINION

MR. CHIEF JUSTICE MITCHELL:

The first question presented by this case is whether the sand, the taking of which is the trespass sued for, is a mineral within the meaning of the deed between the parties.

In the broadest sense, as belonging to one of the three great divisions of matter, animal, vegetable and mineral, sand of course is a mineral. In the more restricted scientific sense sand may or may not be a mineral according to what it is composed of. In the language of mineralogists air and water are minerals while granite and similar rocks are not minerals but aggregations of minerals. So it is of sand; it may be wholly of grains of silex or other mineral or it may be of several mixed together, and therefore in the technical sense only grains of rock.

It is perfectly clear that the parties here did not use the word mineral in either of the foregoing senses. The first grantor with whom we are concerned, the Northern Coal and Iron Company, conveyed the land to Jumper reserving "all coal and other minerals in, under and upon said land;" Jumper conveyed to defendant with a similar reservation; and the subsequent deed by defendant to plaintiff conveyed the "surface" of the land "excepting and reserving as fully and entirely as in the said (preceding) indenture is excepted and reserved, and further excepting and reserving all the gravel necessary for any fill or ballast for the railroad," etc. If the word mineral had been used in either of the senses already mentioned it would as a matter of course have included gravel, and the...