Westerman v. Pennsylvania Salt Manufacturing Company

• Decision Date: 07 January 1918
• Docket Number: 76
• Citation: 260 Pa. 140,103 A. 539
• Parties: Westerman, Appellant, v. Pennsylvania Salt Manufacturing Company
• Court: Pennsylvania Supreme Court

103 A. 539

260 Pa. 140

Westerman, Appellant, v. Pennsylvania Salt Manufacturing Company

No. 76

Supreme Court of Pennsylvania

January 7, 1918

Argued October 9, 1917

Appeal, No. 76, Oct. T., 1917, by plaintiff, from decree of C.P. Allegheny Co., July T., 1914, No. 286, dismissing bill in case of George R. Westerman v. The Pennsylvania Salt Manufacturing Company. Affirmed.

Bill in equity for an injunction and accounting. Before SHAFER, P.J.

The opinion of the Supreme Court states the case.

The court below dismissed the bill. Plaintiff appealed.

Errors assigned were the dismissal of plaintiff's exceptions to various findings of fact and law and the decree of the court.

The assignments of error are overruled and the appeal is dismissed at the costs of appellant.

Nelson McVicar, for appellant. -- A grantee of coal has the right to mine and remove the coal purchased, and while in good faith so doing, he has the right to transport other coal owned by him through the entries made in the first coal.

When he has completed or abandoned coal first purchased, his right to use entries therein as ways for transporting other coal ceases: Lillibridge v. Lackawanna Coal Co., 143 Pa 293; Webber v. Vogel, 189 Pa. 156; Farrar v. Pittsburgh & Eastern Coal Co., 28 Pa.Super. 280; Chartiers Block Coal Co. v. Mellon, 152 Pa. 286.

Plaintiff was not estopped from objecting to defendant's use of these entries by reason either of the record or of his acts: Waters' App., 35 Pa. 523; Orr v. Mercer Co. Mut. Fire Insurance Co., 114 Pa. 387; Hepburn v. McDowell, 17 S. & R. 383; Knouff v. Thompson, 16 Pa. 357; Eifert v. Lytle, 172 Pa. 356; McKnight v. Bell, 135 Pa. 358; Hill v. Epley, 35 Pa. 344.

Richard H. Hawkins, with him J. Merrill Wright and Dalzell, Fisher & Hawkins, for appellee.

Before MESTREZAT, STEWART, MOSCHZISKER, FRAZER and WALLING, JJ.

OPINION

MR. JUSTICE WALLING:

This is a bill in equity for an injunction and accounting. Defendant has been engaged in manufacturing in Allegheny County since 1850, with its plant located on the bank of the Allegheny river, where it owned a tract of land underlaid with coal from which is secured fuel. This supply was gradually exhausted and about 1897 defendant purchased the coal in a block of approximately twenty-five hundred acres of land, located conveniently to its plant. It was bought from various landowners including eighty acres from plaintiff, and continued four veins of mineable coal, the Upper Freeport vein being about 200 feet below the surface and the others at a greater depth. As is customary in such cases the defendant treated this block as a single mining operation, at least so far as relates to the Upper Freeport vein, which it proceeded to mine as such. At the lower side of the block, near a creek, a main entrance was constructed, known as the Klondike Mine. From there, as the mining progressed, a main passageway or haulage was gradually driven back into the block and through plaintiff's farm, which was near the entrance, and thence on into other lands. As the main driveway proceeded, first mining was done in this vein on the plaintiff's land, by which practically all of the coal was taken except 25 to 30 per cent., which was left in place to support the surface, and is known as ribs or pillars. This first mining on plaintiff's land was completed in 1908, and no coal has since been mined thereon. However, the defendant is still in possession of the mine and may at any time remove the ribs of coal by second mining, which would destroy the supports and let down the surface. Since about 1901, defendant has used this main entry or driveway through plaintiff's farm as a means of transporting coal from the lands in the rear thereof, which is the only practicable way of mining such coal. The surface of plaintiff's farm is intact and the use of the underground passageway as above stated has done him no damage. This passageway cannot be used in mining the coal in the lower veins. The conveyance of all the coal in, under, and upon plaintiff's farm was by a general warranty deed to defendant, its successors and assigns, forever, with the right of ingress and egress for the purpose of mining and transporting the said coal, and waiving the right of surface support. The deed contains no limitation as to the time for removal of the coal thereby conveyed, nor any provision as to a passageway to other coal. Defendant made large expenditures in the purchase of this block of coal and in preparation for its mining.

The bill seeks to enjoin defendant from using the passageway in question in transporting coal from other lands, and also to account and pay for such use theretofore had of the same. The court below overruled the exceptions filed to the chancellor's finding of facts and legal conclusions and made absolute the decree dismissing the bill; from which plaintiff took this appeal. In our opinion the decree of the court below was right. The deed vested in the defendant a corporeal estate in fee in the coal; and until that estate is terminated by the exhaustion of the coal, or lost by abandonment, the vendee is entitled to the possession of the coal, and also of the space made by its removal, and may use such space in transporting coal from other lands. In the case of Lillibridge v. Lackawanna Coal Co., 143 Pa. 293 this court held that the owner of the coal also owned the chamber or space enclosing it, and, so long as such ownership continued, could use such space for the transportation of other coal. That case was expressly reaffirmed, and held to be a settled rule of property in the great mining regions of the Commonwealth, in the case of Webber v. Vogel, 189 Pa. 156. Both of the above cited cases are quoted with approval and followed in the opinion of this court by present Chief Justice BROWN in ...