Myer v. Curry

• Decision Date: 22 November 1926
• Docket Number: 79
• Citation: 287 Pa. 489,135 A. 234
• Parties: Myer, Appellant, v. Curry et al
• Court: Pennsylvania Supreme Court

135 A. 234

287 Pa. 489

Myer, Appellant, v. Curry et al

No. 79

Supreme Court of Pennsylvania

November 22, 1926

Argued September 30, 1926

Appeal, No. 79, March T., 1926, by plaintiff, from judgment of C.P. Allegheny Co., July T., 1923, No. 1329, for defendant n.o.v., in case of Gilbert F. Myer v. Albert Curry and the Colonial Trust Co. of Pittsburgh, administrators of the estate of William L. Curry, deceased, and Rudolph W. Stuler. Judgment set aside and record remitted.

Trespass for treble damages for alleged illegal mining of coal. Before McVICAR, J.

The opinion of the Supreme Court states the facts.

Verdict for plaintiff for $27,000, with findings that $17,300 was on account of profits. Judgment for defendant n.o.v.

Errors assigned were, inter alia, judgment, quoting record, and various findings of the court in its opinion, entering judgment n.o.v., quoting them.

John C Bane, with him A. M. Simon and Robert Mellin, for appellant. -- The coal was "black" within the meaning of the deed.

The coal was "merchantable" within the meaning of the deed: McKelvy v. Coal Co., 283 Pa. 227.

The precise question, whether plaintiff has the right to recover these profits from defendants, does not appear to have been finally decided by this court: Matthews v. Rush, 262 Pa. 524.

Probably the leading case on this subject, originating in the State of Illinois, and finally taken by certiorari to the Supreme Court of the United States, is Guffey v. Smith, 237 U.S 101; see also Pine River Logging Co. v. U.S. 186 U.S. 279; Union Naval Stores v. U.S., 240 U.S. 284.

William A. Jordan, with him Thomas D. Chantler, for appellees. -- Appellant, by his title deeds, under the McClure Farm, took title to black, merchantable stone coal only, and as the same was understood to be black merchantable stone coal in August of 1878.

Appellees aver that the appellant, by his title deeds, took title to "114 acres and 152.83 perches of unmined coal in the seam that is now being worked according to a survey of said coal made by R. F. Hunter in April and May, 1878," and to no other or further or additional coal, in so far as the rights of the appellees are concerned.

Appellees, in beginning and carrying on their mining operations, did so under this lease from F. A. McClure, the owner, without any notice or knowledge of appellant's claim, and under a clear claim of right, and paid in full the royalty therein provided. They entered in good faith, with apparently a good legal title and legal right under this lease. They had a right to rely upon the title of their lessor, and believe it was good, and when they subsequently received the letter from appellant's counsel, dated August 23, 1922, they simply had notice of a dispute as to title to coal, the right to mine which they believed they had under their lease: Rhoads v. Coal Co., 238 Pa. 283; Matthews v. Rush, 262 Pa. 524; Kingston Trustees v. Coal Co., 241 Pa. 481.

Appellant is not entitled to recover profits: Matthews v. Rush, 262 Pa. 524; Hughes v. Stevens, 36 Pa. 320; Dunbar Furnace Co. v. Fairchild, 121 Pa. 563; McCloskey v. Powell, 138 Pa. 383; Hall v. R.R., 257 Pa. 54; Jackson v. Gunton, 26 Pa.Super. 203; Olson v. McLaughlin, 64 Pa.Super. 354; Wilmore Coal Co. v. Holsopple, 68 Pa.Super. 290.

Before MOSCHZISKER, C.J., FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.

OPINION

MR. JUSTICE SCHAFFER:

The action is trespass to recover treble damages for the wrongful mining by defendants of certain coal alleged to belong to plaintiff and the profits received by defendants therefrom. The verdict was in plaintiff's favor. The court entered judgment for defendants non obstante veredicto. Plaintiff appeals.

John Penny is the common source of title of both parties to the suit. He became bankrupt and on August 31, 1878, his assignees in bankruptcy conveyed certain coal which had belonged to him to J. B. Sneathen and others. It is under this deed that appellant claims title to the coal in controversy. It conveys a tract of land by courses and distances, containing 14 acres and 140 perches, "on which are erected the coal tipple, incline railroad, check house and other buildings and improvements connected with the coal works of the late John Penny.

"Also in connection with the real estate above described all the black merchantable stone coal in the coal seam that has been opened and worked by said bankrupt and underlying the said land and other adjoining lands of said bankrupt in said township bounded by the Youghiogheny River by lands of [certain persons named] and also in connection with the same all the stone coal underlying the tract of land known as the 'Caughey Farm' in said township adjoining said last-mentioned land of said bankrupt being the same coal that was conveyed [by a recited deed].

"Also in connection with the same all the stone coal underlying lands of Hiram Edmundson in said township adjoining said last-mentioned land of said bankrupt being the same coal that was conveyed by the deed of said Hiram Edmundson and his wife dated January 25, A.D. 1858, and recorded in Deed Book 132, page 355, as by reference to said deeds will more fully and at large appear, embracing in all 114 acres 152.83 perches of unmined coal in the seam that is now being worked, according to a survey of said coal made by R. F. Hunter at the request of the parties of the first part in April and May A.D. 1878, a plan of which survey is attached to and made part of the petition aforesaid." The deed to plaintiff and the intervening ones use substantially the same language in describing the land and coal conveyed.

Defendants are the lessees from F. A. McClure who claims through Andrew McClure, to whom the assignees of John Penny, on October 23, 1878, conveyed a tract of land containing 203 acres and 18 perches "excepting and reserving therefrom and thereout, however, all the black merchantable stone coal in the coal seam that is now being worked, together with all the rights and privileges necessary to the convenient and successful mining and taking out of said coal, being part of the same coal and mining privileges which have been conveyed to John B. Sneathen et al. by deed dated August 31, 1878."

Defendants' motion for judgment non obstante veredicto was based on two grounds, first, that there was no evidence to submit to the jury that the coal mined by defendants was black merchantable stone coal, within the meaning of the language contained in the deed from the assignees in bankruptcy to Sneathen et al.; but that on the contrary it was shown to be soft red coal or soft black coal; second, that the coal conveyed by the deed to plaintiff's predecessors embraced in all 114 acres and 152.83 perches in accordance with the survey made by Hunter, and that the coal mined was not included within the boundaries of the coal in the survey and the deed. The court was of opinion that the first reason should be sustained, and, therefore, that it was not necessary to discuss the second. We are of one mind in concluding that the court erred in entering judgment for defendant for the first reason; the second has given us much concern. We have concluded that the question raised by it is not so clear and indisputable as to warrant our entering judgment for defendant without further light.

The trial court decided that the coal was not shown to be black, to be merchantable in 1878, or to be stone coal. Our judgment is not only that the court erred in its determination, but that under the evidence the coal which was mined by defendants was black coal, was merchantable, and, that it was stone coal within the meaning of the words used in the deed. All that was shown to indicate that the coal was not black coal was that it was stained red at the outcrop and in other places in the mine, very likely by sulphur water or other chemical action. That this takes place is a matter of common knowledge, but it does not make the coal any the less black coal. Indeed, witnesses testified that when the coal, which was red on the surface, was broken the inside of it was black. The court below in its opinion on the motion for judgment non obstante veredicto says, "The undisputed evidence is that the coal was wholly in the Pittsburgh vein, and that the Pittsburgh vein was the same as had been opened and worked by John Penny. So there is no question that the coal mined was of the seam designated in the deed from the assignees of John Penny." It is stated in appellant's brief that it is a matter of common knowledge that the Pittsburgh vein of coal, with the exception only of small portions at the extreme edge of the stratum at the point of an outcrop, is black.

The court's conclusion was that the merchantability of the coal was to be fixed as of the date...