Hummel v. McFadden

• Decision Date: 08 May 1959
• Citation: 395 Pa. 543,150 A.2d 856
• Parties: Edward A. HUMMEL and Glenn R. Mathieson, Partners, Trading and Doing Business as Grove City Construction Company, Appellants, v. Alma McFADDEN, Edith Arblaster, William Stillwagon, Tifney McFadden, Carl McFadden, L. H. (Lemoyne) McFadden, Ralph McFadden, Roy McFadden, Florence Buchanan, Wilbert J. McFadden.
• Court: Pennsylvania Supreme Court

Page 856

150 A.2d 856

395 Pa. 543

Edward A. HUMMEL and Glenn R. Mathieson, Partners, Trading and Doing Business as Grove City Construction Company, Appellants, v. Alma McFADDEN, Edith Arblaster, William Stillwagon, Tifney McFadden, Carl McFadden, L. H. (Lemoyne) McFadden Ralph McFadden, Roy McFadden, Florence Buchanan, Wilbert J. McFadden.

Supreme Court of Pennsylvania.

May 8, 1959.

Henninger & Robinson, William C. Robinson, Butler, for appellants.

Luther C. Braham, Darrell L. Gregg, Richard B. Kirkpatrick, Norman D. Jaffe, Galbreath, Braham, Gregg, Kirkpatrick & Jaffe, Bulter, for appellees.

Before CHARLES ALVIN JONES, C. J., and BELL, MUSMANNO, BENJAMIN R. JONES, COHEN, BOK, and McBRIDE, JJ.

BENJAMIN R. JONES, Justice.

In this equity suit the appellants seek the partition of both the surface and the coal of a large tract of land situated, in greater part, in Butler County and, in smaller part, in Mercer County.

In 1910 one Tifney McFadden conveyed this entire tract of land, including both surface and coal, to six sisters surnamed Buchanan. Subsequently, two of these sisters died; upon their deaths, their respective interests in both the surface and coal of this tract became vested in their four surviving sisters, two of whom married (Mary Buchanan McFadden and Isabella Buchanan Stillwagon) and two remained single (Hannah and Harriet Buchanan).

On June 2, 1934, three of the sisters conveyed to the fourth sister, Mary McFadden, the surface of the northern 47 acres of the tract, the grantors reserving however all their interests in the coal underneath these 47 acres. On the same date, the two married sisters, Mary McFadden and Isabella Stillwagon, joined by their spouses, conveyed the surface of the southern 47 acres of the tract to their two spinster sisters as joint tenants with right of survivorship, the grantors reserving all their interests in the coal underneath these 47 acres.

On June 5, 1934, all four Buchanan sisters (the married ones being joined by their spouses)--representing the entire ownership of the coal under the entire tract--entered into a written agreement with Ralph McFadden, an appellee, for the mining and removal of the coal under 15 acres of the easterly section of the northern 47 acres.

There years later Hannah Buchanan died, her interest in the coal or the proceeds therefrom becoming vested in her three surviving sisters. On May 2, 1940, Isabella Stillwagon died survived by her husband and six children; on the husband's death on March 14, 1945, Mrs. Stillwagon's entire interest in the coal or the proceeds therefrom vested in her six children.

On August 31, 1945, all parties with any interest in the coal under the entire tract of land entered into another written agreement with Ralph McFadden for the mining and removal of the coal lying under the balance of the entire tract not covered in the 1934 mining agreement.

Subsequently the appellants acquired whatever interest certain of the Stillwagon children had in the surface and coal of this tract.

On February 19, 1951, appellants instituted the present proceeding the purpose of which is to partition both the surface of and the coal under the entire tract. After issue was joined in the pleadings, between 1951 and 1954, several hearings were held before the then President Judge of Butler County, W. B. Purvis. Unfortunately the notes of testimony taken at these hearings became unavailable and finally the matter was heard de novo before President Judge Clyde S. Shumaker. Upon completion of the testimony, the court granted partition of the surface but denied partition of the coal under the entire tract of land. From that decree this appeal was taken.

This appeal poses two issues: (1) under the 1934 and 1945 mining agreements between the Buchanans ¹ and Ralph McFadden, did the latter acquire ownership in fee simple of the coal in place?; (2) if he did, has his right of ownership been lost by reason of abandonment, non-user or forfeiture?

Under the 1934 agreement all 'that certain tract of land' containing '15, more or less, acres' (described by adjoiners) located in the northern portion of the tract was 'lease[d] and let' for the 'purpose of mining and removing coal therefrom'; the habendum clause provided that McFadden was 'to have and to hold said land' for 'purpose[s] of mining and removing coal' for an unstated term, ² and 'so much longer as coal is mined and removed in paying quantities'; the agreement further provided: '* * * it being agreed and understood that at least _____ tons of coal shall be mined and removed each year or in case that amount is not mined in any year this lease shall become null and void'; payment was to be made to the 'Buchanans' on the basis of 'fifteen percent of all money received for coal, settlements to be made monthly for all coal mined and removed'; the mine was to be operated in 'workmanlike manner'.

Moreover the agreement states 'as long as [McFadden] is operating said mine no lease for coal will be given to other parties for other land adjoining this lease'.

According to its terms, therefore, the 1934 agreement was exclusive, the coal was to be paid for on a monthly basis when the coal was mined and removed and no express obligation was imposed on McFadden nor did he expressly covenant to mine and remove the coal with due diligence. ³ The only sanction open to the Buchanans under the agreement was implied: if McFadden did not operate the mine Buchanans could lease the adjoining land to other parties for mining purposes. ⁴ It is evident that Buchanans originally intended the life of the agreement to be measured by a definite number of years plus a time thereafter during which the coal could be mined and removed profitably; their failure to insert in the agreement the actual number of years removed the minimum limitation of time from the agreement and had the effect of granting the right to mine the coal to exhaustion. The obligation of McFadden to mine in a 'workmanlike manner' went to the manner of, rather than diligence in, mining.

Under the 1945 agreement the Buchanans agreed to 'lease' to McFadden 'all the coal' under the balance of the Buchanan tract (described by adjoinders) over and above the 15 acre tract covered in the 1934 agreement, 'with the full, perpetual and exclusive right' to mine and remove the coal. McFadden was to pay 'a royalty of fifteen percent of all monies received from sale of said coal, the maximum royalty however not to exceed thirty-five cents per ton. Payments for said coal to be made monthly.'

The 1945 agreement was not only exclusive but, by its very terms, the grant of a right to mine in perpetuity. Even though payment for the coal was on a monthly tonnage basis, the right given to McFadden was to mine the coal to exhaustion. Like the 1934 agreement, this agreement failed to provide for payment of any annual minimum royalty or for an annual minimum tonnage and imposed no express obligation on McFadden to mine with due diligence.

Under these facts did either or both mining agreements pass a title in fee simple in the coal to McFadden and constitute a sale or sales of the coal in place?

As early as 1853 this Court recognized, in effect, that an unrestricted right to take and carry away all the coal under a tract of land constituted a corporeal right. Benson v. Miners' Bank, 20 Pa. 370. Caldwell v. Fulton, 31 Pa. 475 ⁵ is the landmark decision on the interpretation of a mining agreement as a sale of coal in place. The facts therein were: Caldwell, from whom the plaintiff Caldwell derived his title, in consideration of $1,800, conveyed to one Greer, his heirs and assigns, 2 parcels of land (described by metes and bounds), one a 6 acre parcel and the other a 10 acre parcel. The words of conveyance were: 'Also, the full right, title and privilege of digging and taking away stone coal, to any extent [Greer] may think proper to do, or cause to be done, * * *' under Caldwell's land. Eleven years later Greer conveyed an undivided one-half of the premises to one Case and the other one-half to one McCune. Two years later Case conveyed to McCune his interest which McCune later conveyed to one Bell. Four years later Bell and McCune partitioned among themselves the entire 16 acres together with the coal thereunder. Four years later McCune 'leased' both his land and coal to Fulton and the latter began digging for coal. Caldwell sued Fulton in trespass for removing coal from the Caldwell land. The court below held that Caldwell's deed to Greer did not constitute a grant of the fee in the coal. Mr. Justice Strong, speaking for this Court, thus analyzed the Caldwell-Greer deed: (1) in the description of the grant no limits were fixed upon the extent to which coal might be taken and Greer's right to take the coal was 'coextensive with his will'; (2) in view of the law's recognition that one man may own the surface and another the mineral rights, both are landowners and both are holders of a corporeal hereditament, coal and minerals in place being considered land; (3) there are two methods in which the subject matter of a deed may be described; (a) by a description of the land itself (as by metes and bounds or by name) and (b) by a designation of the usufruct or dominion over the subject matter--'the grant of a thing can be no more than the grant of the full and unlimited use of it'; (4) the description of the coal in this deed by the designation of Greer's dominion over it and by the conveyance of the whole use of the coal and the absolute dominion over it amounted to a grant of the coal itself; the language of Caldwell's deed to Greer expressed absolute dominion and complete enjoyment over the coal, 'He [Greer] could take out coal to any extent. He could cause it to be taken out to any extent, and at all times under any of the land. He was accountable to no one * * * but the right to take the coal itself was absolutely unlimited.'

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