Stewart v. Chernicky

• Decision Date: 27 May 1970
• Parties: , 1 ERC 1357 Budd B. STEWART, Surviving Executor of the Estate of Thomas M. Stewart, Deceased v. Peter CHERNICKY and E. G. Kriebel, Trading As C & K Coal Company and Vincent C. Conner and Lois Conner.
• Court: Pennsylvania Supreme Court

Page 259

266 A.2d 259

439 Pa. 43, 1 ERC 1357

Budd B. STEWART, Surviving Executor of the Estate of Thomas M. Stewart, Deceased v. Peter CHERNICKY and E. G. Kriebel, Trading As C & K Coal Company and Vincent C. Conner and Lois Conner.

Supreme Court of Pennsylvania.

May 27, 1970.

Rehearing Denied July 9, 1970.

H. Ray Pope, Jr., Clarion, for appellant.

Arnold E. Dolby, Clarion, Chester H. Byerly, New Bethlehem, for appellees.

Before BELL, C.J., and JONES, COHEN, EAGEN, O'BRIEN, ROBERTS, and POMEROY, JJ.

OPINION

EAGEN, Justice.

This action results from an alleged unauthorized strip mining of a portion of a tract of land by Peter Chernicky and E. G. Kriebel, Trading as C & K Coal Company (C & K Company), a partnership.

The tract consists of 21 1/4 acres located in Perry Township, Clarion County. By deed dated December 8, 1902, the then owner, D. W. Bartow, granted and conveyed to Horace A. Noble et al., all the coal in and under the tract with the right to remove the same without liability for injury to the surface. Bartow retained ownership of the surface. ¹ On the dates here involved, the Thomas M. Stewart Estate, as Bartow's successor in title, was the owner of the surface. Vincent C. Conner and Lois Conner, as successors in title to Noble et al., were the owners of the coal. C & K Company was the lessee of the coal rights vested in the Conners.

The tract was remote, uncultivated woodland, not easily accessible, and its boundaries were not clearly distinguishable from those of the surrounding lands. ² It was but one of 33 separate properties which the Conners had leased to the C & K Company in a single document dated March 8, 1962. The Conners owned both the surface and the coal rights in a portion of these, while in others they owned only the coal. In the lease this particular tract (the Stewart Tract) had been designated the 'V. C. Conner Tract (Coal),' leading some to believe the Conners owned both the surface and the coal. ³ C & K Company never had it or the land adjacent to it surveyed, whereby the divided ownership might have been realized. As a result of these circumstances, six or seven acres of it were stripped in 1963 without the consent of the Stewart Estate, causing extensive damage to the surface. The Stewart Estate instituted this action seeking damages from C & K Company and the Conners. At trial, the jury returned a verdict in favor of the plaintiff and against all defendants in the amount of $10,200. Motions for judgment notwithstanding the verdict or a new trial were filed by all defendants. The court below granted the motions for judgment n.o.v. The Stewart Estate appealed.

The central issue is: Did the C & K Company have the right to remove the coal under the land involved by the strip mining method without liability for injury to or destruction of the surface, regardless who owned that surface, or was such removal to be limited to shaft or deep mining? ⁴ In the latter situation, the C & K Company would be liable for what occurred. ⁵

A party engaged in strip mining must either own (or lease from one who owns) both the estate of coal and the surface estate Or own (or lease from one who owns) a coal estate which includes the right to employ the strip mining method, for such a process entails the actual stripping away of the outer covering of the terrain. Owens v. Thompson, 385 Pa. 506, 123 A.2d 408 (1956).

Any interest and rights that the C & K Company has in the tract of land in issue derives from the lease it obtained from the Conners on March 8, 1962. Such lease contains the following pertinent provisions:

'Nothing herein or hereinafter contained shall be construed as warranting the said leased premises or the quantity or quality of the coal that may be found in the thirty-three tracts listed under Exhibit 'A' herein.

'Subject to the exceptions, reservations, covenants and conditions referred to in the preceding paragraph hereof, lessors do hereby grant and let unto lessees, All mining rights which Lessors now have in and upon the real estate described in Exhibit 'A' hereto annexed.

'It is expressly understood and agreed between the parties hereto, that as to those parcels or tracts of land set forth in Exhibit 'A' in which lessors do not own surface that lessors intend to grant hereby Only such mining rights in such lands as lessors may actually have or own therein.' (Emphasis added.)

The land in issue is admittedly one of the thirty-three tracts listed in Exhibit 'A' of the above lease. This lease, in effect if not in form, is a quitclaim deed ⁶ of all the mining rights of which the lessors were seized in the above tract. The interest and rights of the C & K Company in the specific tract in issue are thus co-extensive with those previously possessed by its lessors, the Conners.

The Conners clearly owned only the coal under the tract. Therefore, any right which the C & K Company might have had to strip mine this property must derive from the coal estate alone. To determine the nature and extent of this estate, which had been carved from the fee, reference must be made to the deed of severance wherein the separation in ownership occurred. This was the deed of December 8, 1902, supra.

This deed, after granting and conveying title to the coal in and under the tract to the Conners' predecessors in title, stated in pertinent part:

'Together with the right of ingress, egress and regress over and through said lands for the purpose of Mining, storing, manufacturing and removing said coal and such other coal as may be now owned or hereafter acquired by the said second parties, their heirs or assigns; Also the right to drain and Ventilate said mines by shafts or otherwise and to deposit the waste from said mines, and to build roads and structures with the necessary curtilege (sic) for said purposes; With a full release of and without liability for damages for injury to the surface, waters or otherwise arising From any of said Operations.

'Together with all and singular the said property, rights, privileges, hereditaments, and appurtenances whatsoever thereunto belonging or in anywise appertaining, and the reversion and the remainders thereof, and all the estate, right, title, interest, property, claim and demand whatsoever of the said party of the first part, in law, equity or otherwise howsoever of, in and to the said coal, coal space, mining rights, and Release of damages.' (Emphasis added.)

In construing this deed, it is the intention of the parties at the time of the transaction that governs, and such intention is to be gathered from a reading of the entire deed. New Charter Coal Co. v. McKee, supra; Mt. Carmel Railroad Co. v. M. A. Hanna Co., 371 Pa. 232, 89 A.2d 508 (1952). If the deed is ambiguous, then all of the attending circumstances existing at the time of the execution of the instrument should be considered to aid in determining the apparent object of the parties. New Charter Coal Co. v. McKee, supra; Merrill v. Manufacturers Light and Heat Co., 409 Pa. 68, 185 A.2d 573 (1962).

There is no express intent of the parties in this deed concerning the means by which the coal granted was to be mined, neither strip mining nor deep mining being specifically mentioned. The deed merely refers to 'mining' in general. The intent of the parties must therefore be implied.

'Where the language of a contract is contradictory, obscure, or ambiguous, or where its meaning is doubtful, so that it is susceptible of two constructions, one of which makes it fair, customary, and such as prudent men would naturally execute, While the other makes it inequitable, unusual, or such as reasonable men would not be likely to enter into, the interpretation which makes a rational and probable agreement must be preferred'. Wilkes-Barre Twp. School District v. Corgan, 403 Pa. 383, 386, 170 A.2d 97, 98 (1961).

In this regard, this Court recognizes that 'strip mining is an accepted Manner or Method of coal mining, which, with the use of modern huge and efficient machinery, has become progressively more in vogue'. Mt. Carmel Railroad Co. v. M. A. Hanna Co., 371 Pa. at 240, 89 A.2d at 512, supra. And this Court does not wish to interfere with its use or hinder its economic viability. Yet we cannot help but realize that 'in view of the surface violence, destruction and disfiguration which inevitably attend strip or open mining, * * * no land owner would lightly or casually grant strip mining rights, nor would any purchaser of land treat lightly any reservation of mining rights which would permit the grantor or his assignee to come upon his land and turn it into a battleground with strip mining'. Rechez Bros., Inc. v. Duricka, 374 Pa. at 265, 97 A.2d at 826, supra. Therefore, 'the burden rests upon him who seeks to assert the right to destroy or injure the surface' (Merrill v. Manufacturers Light and Heat Co., 409 Pa. at 73, 185 A.2d at 576, supra) to show some positive indication that the parties to the deed agreed to authorize practices which may result in these consequences. Particularly is this so where such operations were not common at the time the deed was executed. ⁷ See Wilkes-Barre Twp. School District v. Corgan, supra, and Merrill v. Manufacturers Light and Heat Co., supra.

The most critical clause in the above deed relevant to the method of mining authorized is: 'also the right to drain and ventilate said mines by shafts or otherwise * * *.' Ventilating is a feature only of shaft or deep mining: Rochez Bros., Inc. v. Duricka, supra. Yet this particular clause begins with 'also,' which could imply that to ventilate was an additional right to those already previously granted rather than a word of limitation. See Mt. Carmel Railroad Co. v. M. A. Hanna Co., supra. Such an interpretation, however, fails to take into account that 'ventilate' refers to 'said mines.' This seems to connote that the mines for which provisions were made in prior clauses were expected to require ventilation,...