271 Pa. 579 | Pa. | 1922
Opinion by
Plaintiff conveyed to defendant’s predecessor in title, who in turn conveyed to defendant, all the coal under a tract of land in Black Township, Somerset County, containing 128 acres and 81 perches, with the provision that “in case there is in or under this tract of land next to the surface a vein of coal of about twenty-seven inches in thickness overlying another vein of about three feet in thickness, then so much of said twenty-seven-inch surface vein as is in and underlying this said described land is reserved and excepted from this conveyance. This being the vein now opened and being worked.” Following the sale, plaintiff continued to take coal from the vein excepted from the grant and defendant later opened a mine to remove the coal included in the conveyance from plaintiff. Subsequent to the opening of its mine by defendant and the expenditure of a considerable sum of money in completing improvements necessary for mining operations, plaintiff discovered coal was being taken by defendant from the reserved twenty-seven-inch vein, and he at once notified defendant to cease further operations in that seam and later began suit to recover the value of the coal removed and also for damage sustained by the destruction and taking away of the water of a spring on the land, the result of defendant’s mining operations. The jury returned a special verdict in which they found the coal removed by defendant was, in fact, taken from the seam reserved by plaintiff and awarded damages for its value and also for the loss of the spring. From judgment entered on the verdict, defendant appealed.
. Defendant’s principal contention is that plaintiff, having permitted defendant to expend money in the development of the mine, without giving notice of his claim
The acts of the parties to a contract placing a mutual construction upon its provisions are without effect unless it appears they acted with knowledge of their rights and of existing facts (Kane v. Fire Ins. Co., 199 Pa. 205) ; and, as heretofore stated, plaintiff was without knowledge of the stratum from which defendant was taking.coal until some time after defendant opened its mine, although the latter’s means of obtaining such information at an earlier date were better than those of plaintiff. Moreover, the contemporaneous acts of the parties in construing their contract will be considered only where the contract is ambiguous: Sternbergh v. Brock, 225 Pa. 279. The only ambiguity here, so far as the writing is concerned, was construed by the court in favor of defendant. The remaining question was whether defendant was operating the vein conveyed to it, or the seam reserved by plaintiff for his individual use, and this was a question of fact which was properly submitted to the jury.
With respect to the claim for damages for loss of the spring, defendant was liable to plaintiff, under the construction the trial judge placed upon the contract, only in case there was another vein of coal underlying the top one which was reserved and being mined by plaintiff, as to which the evidence was conflicting, and this clearly raised a question for the jury. The verdict having established the existence of the underlying stratum and also that defendant was taking coal from the seam reserved, it followed defendant was liable in damages for the value of the coal taken as well as for the loss of the spring resulting from such action. The questions of fact involved were submitted to the jury in a careful charge and we find nothing in the record calling for reversal.
The assignments of error are overruled and the judgment is affirmed.