Robinson v. Boynton Coal Co.

• Decision Date: 15 July 1914
• Docket Number: 60-1914
• Citation: 58 Pa.Super. 176
• Parties: Robinson v. Boynton Coal Company, Appellant
• Court: Pennsylvania Superior Court

58 Pa.Super. 176

Robinson v. Boynton Coal Company, Appellant

No. 60-1914

Superior Court of Pennsylvania

July 15, 1914

Argued May 4, 1914

Appeal by defendant, from judgment of C.P. Somerset Co.-1912, No 294, on verdict for plaintiff in case of Elizabeth Robinson v. Boynton Coal Company.

Trespass for injuries to surface. Before Ruppel, P. J.

The court charged in part as follows:

The plaintiff, Mrs. Robinson, brought this suit to recover damages to her property, and she alleges that this defendant company mined and took away some coal from under the surface of her little lot of ground over in Elk Lick township, and thereby caused the surface to break and subside and cave in and that that did damage to her property, and that is one of her claims for damages. The other is, she claims that she had the right to the use of the water of a spring on adjoining property formerly owned by Mrs. Mull, and that by mining and removing the coal from under that property that spring was destroyed, and that is another claim for damage in this case. It seems that this farm, a large farm of which this property in dispute is a part, at one time belonged to one, Wm Flickinger. Now a good many years ago Wm. Flickinger sold to Judge W. J. Baer the entire farm. W. J. Baer sold the surface to David Hay, but retained the coal and minerals. That caused a severance of the minerals from the surface in the title of this property and henceforth there became two owners, one owner to the surface and one owner to the mineral. The surface owner had the superior right, and while the owner of the minerals had the right to take out the coal under the deed in the case, but whoever took out the coal by virtue of the title to the coal was bound to leave sufficient support of the surface. David Hay's heirs conveyed this surface, just as David Hay was getting it, to Wm. H. Hay. Wm. H. Hay sold a few acres to Mrs. Mull, something over five acres. Mrs. Mull afterwards sold sixty-one perches of this, with a house thereon which had been erected I believe by her son, to the plaintiff, Mrs. Robinson. Mrs. Robinson therefore became the owner of the surface subject to the rights and privileges of the owners of the coal. Now the coal was transferred by W. J. Baer to one corporation and then to another by some sheriff's sales, etc., and finally became vested in H. C. Shaw. He became the owner of the coal under the five acres and under the sixty-one perches, and under some adjoining lands, and he acquired by virtue of these conveyances from the coal companies all the rights that W. J. Baer retained or reserved when the severance was made between the surface and the coal. H. C. Shaw also bought from Mrs. Mull, after she had sold off this sixty-one perches, the remainder of this five acres and some perches, and whatever rights H. C. Shaw had under both conveyance of coal and surface became vested in the defendant, the Boynton Coal Company.

[The deed from Mrs. Mull to Mrs. Robinson contains a couple of clauses that are somewhat ambiguous. After speaking of the reservation of the minerals, which seems to be almost precisely in the words of the reservation in the original grant when the severance was made, there is this clause: " Without any recourse for damages by the owner of said surface." Squire Hay, who wrote this deed, has been called to explain that, and he says that Mrs. Mull was fearful that by reason of the mining of the coal some damage would be done to the surface and that this plaintiff, Mrs. Robinson, would probably try to fall back on her for damages and that this clause was put in for that purpose.] . . . .

[Now, in mining this coal it was the duty as I said before of the mine operator to leave coal enough standing to support the surface. They had a right to take out all the coal if they would do so and leave the surface up, but they had no right to remove the pillars in that mine and remove the coal in such a way as to cause the surface to subside, and if they did they are liable in damages.]

Verdict for plaintiff for $ 359, upon which judgment was entered for $ 225, all above that amount having been remitted. Defendant appealed.

Errors assigned among others were above instructions, quoting them.

Affirmed.

Ernest O. Kooser, with him Edmund E. Kiernan and Francis J. Kooser, for appellant. -- The words of the clause under consideration created a diminution of the surface estate. When Margaret Mull owned the surface she had the right to surface support. But she never gave that right to Elizabeth Robinson. She distinctly and expressly reserved it: Kellert v. Rochester, etc., Iron Co., 226 Pa. 27; Graff Furance Co. v. Scranton Coal Co., 244 Pa. 592.

Valentine Hay, with him A. L. G. Hay, for appellee.

Before Rice, P. J., Orlady, Head, Porter, Henderson, Kephart, and Trexler, JJ. Orlady, Head and Porter, JJ., dissent.

OPINION

TREXLER, J.

Margaret Mull conveyed to Elizabeth Robinson the surface soil of a certain tract of land. The deed contained the following clause: " reserving all the coal, limestone, iron ore, fire clay, coal oil, gas and any and all other minerals and mineral substances, whether solid or liquid, lying and being in, upon or under the surface soil of said land, with the right and privilege of entering upon said land at any time for the purpose of prospecting, mining, excavating and removing by the most convenient method, any and all of said minerals and mineral substances, solid or liquid, without any recourse for damages by the owner of said surface."

The predecessor in title of the grantor had severed the minerals from the surface as long ago as 1867 by selling the surface soil, carrying with it the right of support.

Under the words contained in the deed, " without any recourse for damages by the owner of said surface," is the owner of the surface without remedy against the Boynton Coal Co. for damages which it, as the owner of the minerals, has caused to the surface through its mining operations?

The words we are considering admit of two constructions. They may be considered either, (1) as expressly excluding the right of surface support to the grantee of the surface as...