Saltsburg Colliery Co. v. Trucks Coal Mining Co.

• Decision Date: 07 January 1924
• Docket Number: 2
• Citation: 278 Pa. 447,123 A. 409
• Parties: Saltsburg Colliery Co., Appellant, v. Trucks Coal Mining Co
• Court: Pennsylvania Supreme Court

123 A. 409

Saltsburg Colliery Co., Appellant, v. Trucks Coal Mining Co

278 Pa. 447

No. 2

Supreme Court of Pennsylvania

January 7, 1924

Argued October 2, 1923

Appeal, No. 2, Oct. T., 1924, by plaintiff, from judgment of Superior Court, April T., 1923, No. 129, affirming judgment n.o.v. of C.P. Armstrong Co., March T., 1921, No. 6, in favor of defendant, in case of Saltsburg Colliery Co. v. Trucks Coal Mining Co. Reversed.

Appeal from Superior Court.See81 Pa.Super. 542.

Trespass for damages for coal mined from plaintiff's land.Before KING, P.J.

The opinion of the Supreme Court states the facts.

Judgment n.o.v. for defendant.

Judgment affirmed by Superior Court.Plaintiff appealed.

Error assigned was judgment, quoting record.

The judgments of the Superior Court and of the Court of Common Pleas of Armstrong County are reversed, and the record is remitted to the latter tribunal with directions to enter judgment on the verdict in favor of plaintiff.

A. J Barron, of Alter, Wright & Barron, with him Floy C. Jones and R. L. Ralston, for appellant.-- The mining privilege contained in the deed of 1851 and the agreement of 1844 is an incorporeal hereditament: Caldwell v. Fulton,31 Pa 475, 483;Clement v. Youngman,40 Pa. 341;Gloninger v. Coal Co.,55 Pa. 1;Grubb v. Grubb,74 Pa. 25;Funk v. Haldeman,53 Pa. 229;Carnahan v. Brown,60 Pa. 23;Jennings Bros. & Co. v. Beale, 158 Pa. 283.

The mining privilege was revocable and has been revoked: Newmoyer v. Andreas,57 Pa. 446;Reagan v. Curran, 226 Pa. 265.

The mining privilege is indivisible in its nature and has been extinguished by the acts of the heirs and assigns of the grantees: Funk v. Haldeman,53 Pa. 229.

Under a certain uncontradicted state of facts, the law will pronounce the conduct of a party to be an abandonment, whatever may have been his intention: Atchison v. McCulloch,5 Watts 13;Barnhart v. Lockwood,152 Pa. 82;Patterson v. Graham,164 Pa. 234;Calhoon v. Neely,201 Pa. 97;Cole v. Taylor, 8 Pa.Super. 19.

The Superior Court was misled in following Caldwell v. Fulton, supra.

H. A. Heilman, with him H. L. Golden, for appellee.-- The case of Caldwell v. Fulton,31 Pa. 475, is on all fours with the present case, and the principles laid down by this court in that are applicable to the present case.

The land from which the coal is to be taken has been definitely located and described: Safe Dep. & T. Co. v. Bovaird & Seyfang,229 Pa. 295;Little v. Greek, 233 Pa. 534.

It is a rule of law that a deed must be construed most strongly against the grantor: Advance Industrial Supply Co. v. Metallic Co.,267 Pa. 15;Miles v. N.Y., Susquehanna, etc., Coal Co., 250 Pa. 147.

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

OPINION

MR. JUSTICE SIMPSON:

Prior to May 16, 1844, William H. Richardson & Co. were engaged in the mining of salt from deposits underlying about six acres of land owned by them; and, in carrying on the business, were using coal procured from an adjoining 194 acres of hill property, also owned by the firm.On that day, they entered into an agreement with Bridget Trucks, George Trucks and Thomas Trucks, who desired to purchase the business and continue the production of salt, to convey to them the "salt wells, with all the buildings, improvements and land thereunto belonging," constituting the smaller tract, for a consideration of "2,500 barrels of good merchantable salt"; the agreement further providing that the purchasers "are to have the privilege of mining and taking coal out of the hill opposite their land under the land of said Richardson & Co. so long as they may think proper."

The consideration having been paid, a deed dated June 24, 1851, was delivered to the purchasers, conveying to them, their heirs and assigns, the smaller tract, and reciting in it that they were to have also "the privilege of mining and taking coal out of the hill opposite the land hereby sold to the said Trucks, under the land of the said Richardson & Co. as long as they may think proper, according to the stipulation contained in an article of agreement with William H. Richardson & Co., dated May 16, 1844."

The grantees entered into possession of the salt works property, and continued the production of salt thereon.While so doing, they mined from the larger tract all the coal they desired for the purposes of the business.This continued until about 1860, when the production of salt and the taking of coal both ceased, although the grantees, or some of their descendants, lived on the smaller property until 1920.In that year Sylvester Trucks, who is alleged to have derived a part interest from the original grantees in the Richardson deed, endorsed on the agreement of May 16, 1844, what, so far as the language is concerned, constituted a formal assignment of it, to one L. S. Roberts; and at the same time sold and conveyed to him the smaller tract, "together with the following mining rights"(quoting from the original deed above set forth), and Roberts, in turn, conveyed them to defendants, who thereupon recommenced mining coal from the larger tract.Their refusal to discontinue so doing, resulted in the bringing of this suit.

Plaintiff's ownership of the hill tract is derived, through various mesne conveyances, from William H. Richardson & Co., the deeds in this chain of title reciting that the grants are made "under and subject to and reserving therefrom the right to Bridget Trucks et al. to mine and take coal out of said tract, as assured and conveyed to them by [William H. Richardson & Co.] . . . and granted by their deed and released to them upon the conditions and terms therein expressed."On the other hand, until the execution of the deeds to and by L. S. Roberts in 1920, defendant's chain of title discloses no reference to the "privilege" appearing in the Richardson agreement and deed.

At the trial of the case binding instructions were given for plaintiff, for a nominal amount agreed upon by the parties.On defendant's motion, judgment non obstante veredicto was entered in its favor; the court holding that a proper construction of the agreement and deed gave to both parties the right to take coal from the hill tract.On plaintiff's appeal to the Superior Court, it was decided those documents operated as a sale of the coal in place, and vested in defendant an exclusive title to it; hence the judgment of the court of common pleas was affirmed.

We allowed an appeal, and in the oral argument here it was conceded by plaintiff that if the agreement and deed did so operate, the judgment of the Superior Court should be affirmed.On the other hand, defendant admits that, if it does not own the coal, then, as there was evidence from which the jury could have found in favor of plaintiff, -- which must be taken as true in determining whether the judgment non obstante veredicto should have been entered (Mitchell v. City of New Castle, 275 Pa. 426), -- the judgment appealed from should be reversed.

Did then the above quoted provisions of the agreement and deed, operate as a sale of the coal in place to the purchasers of the smaller tract?In our judgment they did not, but gave to the grantees only a "privilege" to take such coal as they needed in the production of salt on the smaller tract, exactly as William H. Richardson & Co. themselves had theretofore taken it; and hence this "privilege" ended when the salt works was finally closed.Although the language used is somewhat different from that employed in the agreement and deed in this case, the reasoning in Clement v. Youngman,40 Pa. 341, andGloninger v. The Franklin Coal Co.,55 Pa. 1, bears out the conclusion just stated.

In the former, the grantor gave to the grantee "the exclusive right and privilege of searching for, digging, raising and carrying away [from certain land] . . . all the iron ore and limestone on said land, and also timber sufficient to enable said mines to be worked to advantage. . . and also the privilege of erecting as many necessary houses and buildings as the said Hughes may require for the successful operation of an ironworks."Hughes entered into possession and exercised the privilege granted, but did not construct an ironworks.It was held, despite the exclusive right given, that it was dependent on the building of an ironworks, and his failure in this respect avoided the intended grant of the iron ore and limestone.

In Gloninger v. The Franklin Coal Co., supra, one Wickizer "did grant, sell and convey to the said Edward Fell, his heirs, executors, administrators and assigns forever, the free right to dig coal at [grantor's] coal bed . . . with the privilege freely to carry the coal from the said lot."Upon a full consideration of all our prior decisions, it was held that only an incorporeal hereditament was granted; the "right" and the "privilege" being in common with the grantor, however, for reasons not affecting the present case.

Probably every one would concede that the taking of the coal by William H. Richardson & Co., for use in the salt works, no matter how long this was continued, would not have vested in the purchasers of the works any right to continue taking coal from the hill tract, even while operating the works, unless there was a grant authorizing such taking.This fact suggests the necessity for the clause in the agreement and deed.The language there used does not aptly express a sale, but is, as it says, of a "privilege" only.If a sale had been...