Plummer v. Hillside Coal & Iron Co.

• Decision Date: 26 March 1894
• Docket Number: 263
• Citation: 160 Pa. 483,28 A. 853
• Parties: Plummer, Appellant, v. Hillside Coal & Iron Co. et al
• Court: Pennsylvania Supreme Court

28 A. 853

160 Pa. 483

Plummer, Appellant, v. Hillside Coal & Iron Co. et al

No. 263

Supreme Court of Pennsylvania

March 26, 1894

Argued February 21, 1894

Appeal, No. 263, Jan. T., 1894, by plaintiff, Emma A Plummer, from judgment of C.P. Lackawanna Co., Sept. T 1890, No. 386, on verdict for defendants. Affirmed.

Trespass quare clausum fregit for entering plaintiff's land and taking coal therefrom. Before GUNSTER, J.

At the trial it appeared that, in 1804, Edward London took out a warrant for a tract of land on the Lackawanna river which included the land in controversy in this case. He went into possession of it, and remained in possession until his death. The land in dispute came into possession of Samuel Callender a son-in-law of London, who, in 1828, executed the following instrument in writing, signed and sealed by the parties:

"This agreement made Oct. 1, 1828, between Samuel Callender, Jr., of the township of Blakely, in the county of Luzerne and state of Pennsylvania, of the one part, and Thomas Meredith, of Belmont, in the county of Wayne and state aforesaid, of the other part, witnesseth, that the said Samuel doth lease and to farm let unto the said Thomas all the land that he now holds or is possessed of either by deed, article of agreement, or by any other title, in said township of Blakely, county and state aforesaid, except one hundred acres of land, which the said Samuel purchased of William Woodbridge, by article of agreement, about one hundred acres. The said land leased to said Thomas contains one hundred and thirty acres or thereabouts, and the lease is to continue for the term of one hundred years from this day. It being, however, clearly understood that the possession which the said Thomas acquires under this lease shall extend only to the use of the leased premises as a coal field, that is to say, the said Thomas shall have full right, power and possession to search for coal anywhere on the leased premises in any manner he may think proper, to raise the coal when found from the beds, at all times to enter and carry away the coal in wagons, sleds or other vehicles, and to sell the same for his own benefit and profit, and also that he shall have a right to occupy whatever land may be useful or necessary as coal yards; these rights and privileges shall extend to the heirs, executors, administrators and assigns of the said Thomas during the term aforesaid, and also to his and their agents, engineers, laborers and workmen. It is also understood that in case it shall be either useful or necessary to make roads of any description through the leased premises for the purpose of transporting the coal to market, it may be done, taking care to do the least possible damage to the land or the improvements, and in case it may prove necessary for securing the full enjoyment of the premises aforesaid as a coal field as aforesaid, then the said Samuel covenants and agrees to execute such further writings as counsel learned in the law may deem proper, at the expense of said Thomas, his executors, administrators or assigns. And the said Thomas, for himself, his heirs, executors, administrators and assigns, covenants, promises and agrees to pay to the said Samuel on the first day of August next the sum of two hundred dollars, in manner following: So much money as may remain due for principal and interest on a contract for land, entered into by the said Samuel with the heirs of Samuel Meredith, deceased, on which he now resides, in said township of Blakely, the residue in cash, and also an annual rent of one dollar, payable on the first day of October in each and every year. And in case the coal on the leased premises shall prove extensive and abundant, and of an average thickness of ten feet, then the said Thomas, on these facts being satisfactorily proved, agrees to pay to the said Samuel the further sum of one hundred dollars. It is also agreed that the said Samuel or his heirs, so long as they shall reside on the leased premises, shall have a right to dig whatever coal they may want for their own use, but not to sell, so as not to interfere with the works of said lessees.

"Provided always, nevertheless, that the said Thomas, his heirs, executors, or administrators, by indorsing forty dollars on the contract aforesaid made by the said Samuel with the heirs of Samuel Meredith, deceased, at any time previous to the first day of August next, shall have full right and authority to declare this agreement and lease absolutely null and void, anything in this instrument of writing to the contrary notwithstanding. For the true and faithful performance of the covenants in this agreement and lease, the parties within named bind themselves, their heirs, executors and administrators, each to the other, firmly by these presents."

Plaintiff claimed title, by sundry conveyances, from the heirs of Samuel Callender. Defendants claimed title to the coal under the agreement between Samuel Callender and Thomas Meredith.

Plaintiff proposed to prove by Stephen Callender that he has lived on or near the property known as the Callender land, upon which the trespasses in this case are alleged to have been committed, since 1819; that no person has mined any coal from said land except Samuel Callender and his heirs, and no attempt has been made to mine coal under said land until the Lackawanna Coal Company, Limited, one of the defendants, came into the coal from an adjoining tract, about two years and a half ago.

Defendants objected to the offer as immaterial, irrelevant and incompetent; that no time was fixed in the lease when Thomas Meredith, or his assigns, would take possession of the coal field, and they, therefore, had the full term of the lease, to wit, a hundred years from Oct. 1, 1828, to enter and take possession thereof. The offer does not propose to show that Samuel Callender, or his heirs, had any other possession of the coal except such as they were authorized to have by the lease, to wit, that the said Samuel, and his heirs, may dig what coal they may need for their own use, but not to sell; and it is not proposed to prove by the offer that they exceeded the authority given them by the lease; their possession, therefore, of the surface, and any occupancy they may have had of the coal, was in subservience to the lease and not in opposition to the same, and no possession of the surface by said Samuel, or his heirs, could, by any reasonable construction, be construed as in opposition to the rights of Thomas Meredith, or his assigns, to the coal underlying, which had been severed by the lease of 1828, which was duly recorded, and which was notice to all the world of such severance.

By the Court: I do not quite understand the purpose of the offer.

By Mr. Price: The purpose of the offer is to show that the lessee did not take possession of the land and search for coal in accordance with the terms of the lease. The lessee also had the right to take possession of the surface, and that he did not take possession of the surface; there were surface rights as well as coal, and if he abandoned one he abandoned the other. We will follow this by showing that there was an increased value of this land; we will show that this land is worth as much as ten to one hundred times as much as it was when this contract was made. One of the purposes of the offer is to show that they did not take possession in accordance with the terms of the lease, and determine and investigate how much coal there was and pay the hundred dollars. They have failed for sixty years to pay the additional hundred dollars; they admit that they ought to have done it; they have failed for forty years, under their own admissions, to pay the annual rental.

By the Court: As I view the case at present, this evidence is irrelevant, and the objections to the offer are sustained. Exception. [11]

Plaintiff's points were among others as follows:

1. Request for binding instruction. Refused. [2]

"2. The failure of the grantees of Thomas Meredith to pay the rent stipulated in the agreement and lease between Thomas Meredith and Samuel Callender, from 1849 to 1890, is conclusive evidence of the abandonment of the interest in the coal acquired under such agreement, and the verdict of the jury must be for the plaintiff for the value of the coal, which it is admitted is six dollars." Refused. [3]

"5. Those claiming under Thomas Meredith were in default in not paying the rent from 1849 to 1890, and the statute of limitations in 1890 had concluded all rights under the Callender and Meredith lease. Answer: I decline to affirm that proposition. I do not think this agreement of 1828 can be concluded by the statute of limitations. The right of Samuel Callender, and those under him, to collect the rent may be concluded by the statute of limitations, but the grant of the coal cannot be concluded in that way." [4]

"9. The failure of Thomas Meredith and his grantees to ascertain that the coal was ten feet thick and pay the additional one hundred dollars purchase money, and to pay annual rental from 1849 to 1890, is evidence from which the jury may infer an abandonment of the Callender and Meredith lease, and all rights acquired thereunder." Refused. [5]

Defendants' points were among others as follows:

1. Request for binding instruction. Affirmed. [1]

"6. That the lease of Samuel Callender of October 1, 1828, gave to Thomas Meredith, and his heirs and assigns, the right and title to all the coal under any land then held by said Samuel Callender, in the township of Blakely, by any title whatever except the Woodbridge tract, for the term of one hundred years from that date. Answer: I affirm this proposition, with the qualification that it gave them title whenever it was discovered within the...