Argued
October 24, 1893
[Copyrighted Material Omitted]
Appeal, No. 94, Oct. T., 1893, by plaintiffs, from decree of
C.P. No. u, Allegheny Co., June T., 1892, No. 580, dismissing
bill in equity against Joseph G. Beale.
Bill in
equity to restrain mining of coal.
From
the bill, it appeared that plaintiff claimed an exclusive
right to mine coal under a deed from defendant and his wife.
The material portion of the deed is as follows:
"This
indenture, made the 13th day of March, in the year of our
Lord one thousand eight hundred and eighty-six, between
Joseph G. Beale and Margaret J., his wife, of the borough of
Leechburg, in the county of Armstrong, and state of
Pennsylvania, parties of the first part, and Benjamin F.
Jennings, trustee, of the city and county of Allegheny, and
state aforesaid, party of the second part:
"Witnesseth:
That the said parties of the first part, for and in
consideration of the sum of forty thousand dollars, lawful
money of the United States of America, unto them well and
truly paid by the firm of Jennings, Beale & Company, at or
before the sealing and delivery of these presents, the
receipt whereof is hereby acknowledged, have granted,
bargained, sold, aliened, enfeoffed, released, conveyed and
confirmed, and by these presents do grant, bargain, sell,
alien, enfeoff, release, convey and confirm unto the said
party of the second part, his heirs and assigns forever, all
those five certain lots or pieces of ground situate in the
borough of Leechburg [describing them]:
"Also,
all the right, title, interest and claim of the said parties
of the first part of, in, to and out of all the gas from a
well on all those certain lots or pieces of ground situate in
the township of Allegheny, in the county of Westmoreland, and
state aforesaid, separately bounded and described as follows,
to wit, [describing them]:
"Also,
all the right, title, interest and claim of the said parties
of the first part of, in, to and out of all the gas from a
certain well on all that certain lot or piece of ground
situate in the borough of Leechburg, county of Armstrong, and
state aforesaid, bounded and described as follows, to wit
[describing them]:
"[Also,
the perpetual right to mine, dig and carry away coal in and
from all the veins of coal in and under all the following
described tracts of land] [describing them]:
"Said
party of the second part, his executors, administrators or
assigns to pay to the said parties of the first part, their
heirs, executors, administrator or assigns a royalty of one
quarter of a cent per bushel on all the coal mined by virtue
of the foregoing conveyance."
The
bill prayed for an injunction to restrain defendant from
mining, digging and carrying away coal, and for general
relief. Defendant demurred to the bill.
The
court below filed the following opinion:
"The
bill in this case is filed, asking an injunction to restrain
defendants from taking coal from certain mines under lands in
Armstrong county, Pennsylvania, to which plaintiffs claim to
have the exclusive right by grant from defendant and wife. To
this the defendant has filed a general demurrer, and for
cause of demurrer makes several specifications.
"The
first, second, third, fourth and fifth specifications allege
the introduction of irrelevant matter in several paragraphs
of the bill without special designation of the matter
complained of. An examination of the bill does not disclose
to us anything clearly irrelevant. The history of the
transaction is necessary to show plaintiffs' title and
the relation of the parties when the conveyance was made. But
aside from this, if the bill were in this respect
objectionable, it is not cause of demurrer: Daniell's Ch
Pr. 350. The proper remedy is by motion to strike out the
irrelevant matter.
"The
sixth and eighth specifications raised the objection that the
court is without jurisdiction, because the land, as to which
protection is sought, is wholly in Armstrong county, beyond
the territorial jurisdiction of the court. The bill was
served personally on the defendant in Allegheny county, and,
so far as the record shows, he may be a resident of this
county. The decree asked is personal. 'When the court has
jurisdiction of the person, it may issue an injunction to
prevent trespass upon lands in another county:'
Munson v. Tryon, 6 Phila. 395. This rule applies to
all proceedings not affecting title: Danl. Ch. Pr. 1033, note
5.
"The
sixth specification also contains the suggestion that the
construction of the deed referred to in the bill, and upon
which plaintiffs claim title, 'is a matter of law,
properly belonging to the common law courts, and must
therefore be settled in proceedings at law.' This is true
where the title of plaintiff is denied: N.P. Coal Co. v.
Snowden, 42 Pa. 488; Ferguson's Ap., 117 Pa. 426. No
equity shown: Grubb's Ap., 90 Pa. 228. But it is not true
when the deed is recited in the chain of title, is admitted
by the pleadings, and the only question is, whether or not it
confers the right claimed by plaintiff under it. If the case
were being tried in a court of law, this duty would devolve
upon the court, and if there were no other question, the
opinion of the court would be conclusive. There is no reason
why this duty may not be as well performed by a chancellor
sitting in a court of equity as by the same person sitting as
a judge in a court of law. Such power has been frequently
exercised: Funk v. Haldeman, 53 Pa. 229; Alden'
Ap., 93 Pa. 182.
"The
7th specification is that the bill does not show irreparable
injury. The bill alleges the exclusive right in plaintiffs to
the coal in the lands referred to, and that defendant is
taking it out and shipping the same by the car load by rail
in such quantities that he will soon exhaust all said mines
and leave them without fuel for their steel mills, which was
the chief inducement to the purchase. Continuous trespass of
such character has frequently been restrained by injunction:
Scheetz's Ap., 35 Pa. 88; Allison's Ap., 77 Pa. 221;
Duffield v. Hue, 136 Pa. 602.
"The
only other question suggested and the only real question in
the case is contained in the second specification as follows:
'The second paragraph contains abstracts of a deed,
irrelevant to the cause of complaint, except the third
subdivision of the second paragraph [inclosed in brackets],
the language of which negatives the right of the plaintiffs
to interfere with or restrain the defendant or any one else
from mining coal under the land referred to.'
"By
the bill it appears that the property in dispute belonged to
the defendant, Joseph G. Beale, who was the owner of a
rolling mill in Leechburg. On January 29, 1886, said Beale
and Benj. F. Jennings formed a partnership for the purpose of
manufacturing steel, under the firm name of Jennings, Beale &
Co. On March 13, 1886, Jos. G. Beale and wife conveyed to
Benj. F. Jennings, his heirs and assigns, in trust for said
firm: 1st. 'Five lots of ground in the borough of
Leechburg, in the county of Armstrong, on which was erected
the said West Penn Steel Works.' 2d. 'All the gas
from certain wells upon the property therein described.'
3d. 'Also the perpetual right to mine, dig and carry away
coal in and from all the veins of coal in and under all the
following described tracts of land.' . . . Said party of
the second part, his executors, administrators and assigns to
pay to the said parties of the first part, their heirs,
executors, administrators and assigns, a royalty of one
fourth of one cent per bushel on all coal mined by virtue of
the foregoing conveyance.'
"The
plaintiffs claim that this conveys to them the exclusive
right to mine, dig and carry away the coal under the lands
described in the deed, and that the acts of defendant are in
derogation of their rights. If their claim is well founded
they are entitled to the relief prayed for.
"It
has been held in many cases that an estate may exist as to
minerals separate from the ownership of the surface; that the
estate of each owner is corporeal and that the conveyance in
fee of the minerals is perfected in the grantee without
livery of seizin or other investiture except delivery and
recording of the deed: Caldwell v. Fulton, 31 Pa.
475. This case has been recognized and followed in many
cases, some of which are cited in Lillibridge v. Coal
Co., 143 Pa. 293.
"This
case decides further that no particular form of conveyance is
required, but 'when the intent is to give the entire
usufruct and power of disposal, the legal title must be held
to pass.'
"If
the claim of plaintiffs is good, the grant being exclusive
and perpetual, they own the coal in fee absolute. Do the
deeds referred to convey to plaintiffs such an estate? Such
interest is not expressly granted nor does it seem to be
necessarily implied. It is true that the grant must be
construed most strongly against the grantor, but even against
him the grant must receive a reasonable construction.
"The
grant is included in a deed of bargain and sale with words of
inheritance. But this is appropriate to the conveyance of an
incorporeal hereditament, as well as to the conveyance of a
thing corporate.
"In
considering the special grant of coal, it will be observed
that it is in connection with the conveyance of other
properties. As to these the terms of the grant are not the
same. First are conveyed several tracts of land as to which
the words ordinarily used in conveyance of real estates are
used, viz.: 'All those 5 certain lots or pieces of
ground,' etc. Second. 'All the right, title, interest
and claim of the parties of the first part of, in, to and out
of all the gas from a certain...
