Merrill v. Manufacturers Light & Heat Co.

• Decision Date: 13 November 1962
• Citation: 409 Pa. 68,185 A.2d 573
• Parties: Charles A. MERRILL, Sr. and Elizabeth T. Merrill, His Wife, and Charles A. Merrill, Jr. and Elizabeth L. Merrill, His Wife, and William A. Merrill, II and Jeanne S. Merrill, His Wife v. The MANUFACTURERS LIGHT AND HEAT COMPANY, Appellant.
• Court: Pennsylvania Supreme Court

185 A.2d 573

409 Pa. 68

Charles A. MERRILL, Sr. and Elizabeth T. Merrill, His Wife, and Charles A. Merrill, Jr. and Elizabeth L. Merrill, His Wife, and William A. Merrill, II and Jeanne S. Merrill, His Wife v. The MANUFACTURERS LIGHT AND HEAT COMPANY, Appellant.

Supreme Court of Pennsylvania.

November 13, 1962.

R. W. Smith, Jr., E. S. Stiteler, Smith, Best & Horn Greensburg, James O. Courtney, Jr., Courtney & Courtney Somerset, for appellant.

Livengood & Braucher, William S. Livengood, Jr., Somerset, for appellees.

Before BELL C. J., and MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN, and KEIM, JJ.

JONES Justice.

This is an appeal from a decree of the Court of Common Pleas of Somerset County, sitting in equity, which determined the rights and duties of the respective parties under a right of way agreement over certain coal lands. The propriety of such determination is now before us.

The facts are not disputed. Involved are three tracts of land located in Brothersvalley Township, Somerset County: the first tract is the Homer Y. Fritz tract [hereinafter referred to as Tract No. 2]; the second tract is the Zachariah Walker tract [hereinafter referred to as Tract No. 6]; the third tract is the Martin Luther Fritz tract [hereinafter referred to as Tract No. 4]. The three tracts are contiguous, Tract No. 4 being situated between Tracts Nos. 2 and 6. The appellant The Manufacturers Light and Heat Company [Company], is the owner of an easement which traverses these three tracts and along which it has constructed and maintained for upwards of 30 years several thousand feet of natural gas transmission pipeline. The present owners of the coal underlying these three tracts and the surface, subject only to the Company's easement, are the appellees [Merrills].

The rights of way across these three tracts were obtained by the Company between December 22 and 30, 1930. ^[1] As of December 22, 1930, the ownership of these three tracts of land was as follows: the surface of Tract No. 4 was owned in fee by Charles A. Merrill, Sr. et ux.: the surface of Tract No. 6 was owned by Zachariah Walker; the surface of Tract No. 2 was owned by Homer Y. Fritz. The mining rights to the three seams of coal underlying Tracts Nos. 2, 4 and 6, with the exception of certain mining rights owned by Homer Y. Fritz in certain coal in Pine Hill #1 under Tract No. 2, had been vested in Blue Lick Coal Company [Blue Lick]. In 1927, Blue Lick leased the exclusive right to mine all of its coal in two seams [the Pine Hill #1--the uppermost vein--and the Pine Hill #2--the bottom vein] underlying these tracts to the Enterprise Coal Mining Company [Enterprise], a family corporation, all of the stock of which was and is presently held by the Merrill family. The mining rights to one seam [the middle or the Redstone vein] were not so leased and remained the property of Blue Lick. Enterprise assigned to Charles A. Merrill, Sr., its lease with Blue Lick.

On December 23, 1930 the Company obtained from Merrills a right of way across Tract No. 4 the surface of which Merrills owned. Inasmuch as Merrills then owned the mining rights under Tracts Nos. 2, 4 and 6 as assignee of the Blue Lick-Enterprise lease, there was included in this right of way agreement between the Company and Merrills a release running from the Company to Merrills of damages to the Company's pipelines caused by 'the removal of the surface support thereunder' is connection with the mining of coal under Tracts Nos. 2, 4, and 6. It is the construction and interpretation of this right of way agreement which is the crucial issue on this appeal. Merrills presently hold full title to both the surface and the three seams of coal underlying Tracts Nos. 2, 4 and 6. These estates were acquired subsequent to 1930 by various real estate transactions and mortgage foreclosures.

No dispute arose between the parties until October 1955 when Merrills requested the Company to remove its entire footage of pipeline traversing the three tracts. The Company was notified that Merrills intended to mine the area of Tracts Nos. 2, 4 and 6, including the area along the right of way, by the open pit or strip mine method. ^[2] Such strip mining clearly could not be accomplished prior to the removal of the pipeline without interrupting the Company's service of natural gas to Somerset County communities. Merrills based their request for removal of the pipeline on the 1930 right of way agreement. The Company refused to accede to Merrills' request. Merrills brought an action in equity against the Company in the Court of Common Pleas of Somerset County seeking, in the alternative, that the Company be required to remove its pipeline or pay money damages resulting from Merrills' inability to mine the underlying coal averred to be in excess of 79,000 tons of readily marketable coal. The chancellor enjoined the Company from interfering with Merrills in the mining of coal under the three tracts by any method of mining as the Merrills shall determine and held the Company liable to Merrills for all losses and damages as Merrills have and will sustain by reason of any wrongful interferences by the Company with Merrills in the mining of the coal. From that decree this appeal was taken.

The basic issue raised on this appeal is whether the parties intended by the right of way agreement that the Company's easement could be terminated at the option of Merrills when at some future undetermined time Merrills elected to strip mine the three tracts over which the Company's easement ran. This issue can only be resolved by determining what the parties intended by the language employed in this agreement, considering as immaterial for the purpose of this opinion the fact that both the surface, subject to the easement, and mineral rights of the three tracts in issue have come to vest in Merrills since the 1930 agreements.

The law presently applicable is clear. A right of way is an easement (Tidewater Pipe Co. v. Bell, 280 Pa. 104, 124 A. 351, 40 A.L.R. 1516) which may be created by an express grant, such as the present right of way agreement. To ascertain the nature of the easement created by an express grant we determine the intention of the parties ascertained from the language of the instrument. Such intention is determined by a fair interpretation and construction of the grant and may be shown by the words employed construed with reference to the attending circumstances known to the parties at the time the grant was made. ^[3] Ambiguous words are to be construed in favor of the grantee: Hammond v. Hammond, 258 Pa. 51, 101 A. 855, L.R.A.1918A, 590. The grant of an easement is subject to the same rules of construction as other contracts. Percy A. Brown & Co. v. Raub, 357 Pa. 271, 54 A.2d 35. In Commonwealth v. Fitzmartin, 376 Pa. 390, 393, 102 A.2d 893, 894, involving a deed of coal lands and mining rights, we held that: '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. [citing a case].' The recent case of Wilkes-Barre Twp. School District v Corgan, 403 Pa. 383, 386, 170 A.2d 97 reiterates this rule of construction. Particularly apt is the language of the late Mr. Justice Stearne in his dissent in Commonwealth v. Fisher, 364 Pa. 422, 433, 72 A.2d 568, 573: 'The burden rests upon him who seeks to assert the right to destroy or injure the surface. There exists no applicable statutory enactment. The defendant must rely upon a construction of the words of the reservation in the deed. Such words must be interpreted in the light of the apparent object or purpose of the parties and of the conditions existing when the words were employed. (Emphasis supplied.)' Our course is clear. In the first instance, we look first to the language of the right of way agreement of 1930 and, if an ambiguity exists, we then consider all the attending circumstances existing at the time of agreement so as to determine the 'apparent object' of the parties.

The right of way agreement between Charles A. Merrill, Sr. and the Company, in pertinent part, provides: 'As a part of the consideration for the within grant the Company by the acceptance hereof does hereby agree to pay any damages to crops incurred by the laying of the original pipelines as well as the damages incurred inthe relaying, etc., thereof. It also remises (sic) and releases the Grantor, and the Enterprise Coal Mining Company, with which he is connected, of and from any damages to the said pipeline or pipelines, by the removal of the surface support thereunder in the mining of the coal owned by him or it on the above described tract [Tract #4] and on the tracts of land locally known as the Zachariah Walker Tract [Tract #6] and the Homer Fritz Tract [Tract #2] * * * which are adjoining tracts to the one herein described and under which he or the Enterprise Coal Mining Company are the owners or Lessees of the Minerals.'

The initial and most vital matter to be considered is the construction of that portion of the agreement which states: 'It [the Company] remises (sic) and releases the Grantor [Merrills] * * * from any damages to the said pipeline * * *, by the removal of the surface support thereunder in the mining of the coal * * * on the above described [#4] and on the tracts of land locally known as the Zachariah Walker Tract [#6] and Homer Y. Fritz Tract [#2] * * *.' (Emphasis supplied.) Specifically, what did the parties intend by the phrase 'by the removal of the surface support thereunder in the mining of the coal.'?

The term 'surface support' has been considered...