Commonwealth v. Fisher, Appellant.
Supreme Court of Pennsylvania
April 10, 1950
Argued January 4, 1950
364 Pa. 422 | 72 A.2d 568
Commonwealth v. Fisher, Appellant.
Richard Henry Klein, with him Marshall R. Anspach, for appellant.
John C. Youngman, Special Counsel, with him Candor, Youngman & Gibson, T. McKeen Chidsey, Attorney General, and H. Albert Lehrman, Deputy Attorney General, for appellee.
The adjudication of this controversy depends on the proper interpretation of the language reserving mineral rights in a deed of conveyance of a tract of land from William Rawle et al. to Jacob S. Young et al. dated August 28, 1855. The deed in question contained the following provisions: “... the said parties of the first part hereto [the grantors] do hereby reserve to themselves their heirs executors administrators and assigns forever the full entire complete and exclusive ownership and right as though the present conveyance had not been made to all metals ores minerals coal mine-banks and deposits of ores minerals metals or coal which are or may be in or upon or which may at any time be discovered in or upon any part of the hereinbefore bargained and sold land and premises. And the said parties of the first part hereto do hereby reserve forever the full free absolute and exclusive right and authority for themselves their heirs executors administrators or assigns personally or by their agents workmen or servants at all time or times whenever it may suit their or any of their convenience to enter into and upon and pass over any part or parts of the above described premises and to explore search for and excavate any and every kind of ore mineral metal or coal and to dig excavate or penetrate any part of the said premises and at all times to have free ingress and egress for themselves or their heirs executors administrators or assigns or their workmen or persons employed by them or either of them with or without horses teams oxen mules carts sleds or wagons to dig mine raise and take remove and carry away any and every kind of ore mineral metal or coal which may be found or discovered in or upon any part or parts of the hereby granted bargained and sold land provided always that such digging explorations or searches shall
The title of William Rawle et al., grantors, to the reservation of the mineral rights descended through mesne conveyances to Donald E. Fisher, the present defendant; the title of Jacob S. Young et al., grantees, to the surface of the land descended through mesne conveyances to the Commonwealth of Pennsylvania, the present plaintiff. The tract in question was purchased by the Commonwealth with moneys of the Game Commission License Fund. It is mountain land which has been timbered over; it is held by the Commonwealth as a game habitat; it contains no buildings, railroad lines, public highways, or improvements of any kind. It is largely underlain with bituminous coal which, for the past fifteen years, defendant has been deep mining, but which he has now started to strip mine in order to excavate coal which can be removed in no other manner.
Plaintiff filed the present bill in equity to restrain defendant from further strip mining on the tract. It contends that defendant has no right to practice that method of digging because the use of power machinery to remove the overburden was not a customary method of mining bituminous coal in 1855 when the mineral rights were separated from the title to the surface, and also because plaintiff is entitled by law to surface support. Defendant filed an answer to the bill, but there is no dispute as to the facts. The court below granted the injunction prayed for, and defendant appeals.
Neither of the grounds on which plaintiff relies can be sustained. Defendant, as assignee of the grantors under the deed of 1855, acquired the “full, entire, complete and exclusive ownership” of the coal “in or upon any part of” the land with the right to “dig, excavate or penetrate any part of the said premises“. There is no restriction limiting that right nor any provision as to the method of severing the coal. What was said in Richardson v. Clements, 89 Pa. 503, 506, is applicable here, viz.: “The language used indicates no intention to deny the use of such improved process as science may discover or mechanical ingenuity invent. . .” Plaintiff admits that the coal which defendant seeks to obtain by stripping operations cannot be recovered by any other process. True it is that strip mining was not used in 1855 in the case of bituminous deposits although it was the earliest known method in Pennsylvania of mining anthracite coal and was originally performed by hand; the invention and use of power shovels for the re-
As to defendant‘s alleged legal duty to support the surface of the land it must be conceded that, if such a duty exists, he cannot dig away and destroy the surface down to the subjacent vein of coal, for the physical injury to plaintiff in that event would obviously be the same as if the surface were allowed to subside due to lack of support from beneath. No principle of law is more firmly established in this Commonwealth than that, where there is a severance of the mineral rights from the title to the surface, the owner of such rights is obligated to support the superincumbent estate; the owner of the surface is entitled to that support, not as an easement or right depending on a supposed grant, but as a proprietary right at common law.1 The owner of the
It may be added that it is doubtful whether, in any event, plaintiff would be entitled here to equitable relief. The tract in question is unimproved mountain land; any damage caused to its surface would be merely of a temporary nature in view of the provisions of the
The decree is reversed at plaintiff‘s costs. The record is remanded to the court below with direction to retain the bill for any application that may be made by plaintiff hereafter to compel defendant‘s compliance with his obligation to replace the overburden and make the plantings as provided by statute.
DISSENTING OPINION BY MR. JUSTICE ALLEN M. STEARNE:
The Commonwealth purchased the surface estate of a 990 acre tract of land in Lycoming County for use as (a) State Game Preserve (b) Wild Life Management and (c) Public Recreation. The owner of the coal estate has commenced a strip mining operation. According to the findings of the hearing judge, defendant has already uncovered the overburden from the bituminous coal for an area of approximately 2800 feet long and 38 to 70 feet wide, such overburden so removed being from 12 to 20 feet deep. The court below granted an injunction restraining such operation. This appeal followed.
The predecessor-owners of the surface estate, under their deed, neither by express words nor necessary implication waived or released their rights in the land. I would, therefore, affirm the decree of the court below.
The facts, as narrated by the majority, are not in dispute. Grantors, owners of the fee, separated the surface and minerals. They conveyed the land, reserving the minerals, including coal. The question is whether the words of the reservation expressly or by necessary implication waived or released surface rights.
When coal is conveyed apart from the land, or vice versa, two separate estates in realty exist, each of which is distinct from the other: Smith v. Glen Alden Coal Co., 347 Pa. 290, 32 A. 2d 227; Babcock Lumber Company v. Faust et al., 156 Pa. Superior Ct. 19, 28, 39 A. 2d 298, and cases therein cited. The respective rights of owners of the surface and coal are well settled. While there is an estate in the surface and an estate in the coal, there also exists a right, sometimes referred to as the third estate, viz.: the right of surface support. For an accurate summary of these principles see: Miles v. Pennsylvania Coal Company, 214 Pa. 544, 63 A. 1032. The opinion of Judge KELLY of Lackawanna County was adopted by this Court per curiam. He said, p. 547:
“The law upon the respective rights of the owners of the surface and the owners of the coal, is clearly stated in Barranger and Adams on Mines and Mining, 675 et seq.: ‘Where there has been a horizontal division of the land, the owner of each subjacent estate owes to the owner of the superincumbent estate the support of his land in its natural condition, and the owner of the superincumbent estate has conversely a right to this support. This is an absolute proprietary right, necessarily arising out of the ownership of the surface, and not an easement depending upon a grant. The mine owner in taking out his minerals must leave sufficient support for the superincumbent land. This he may do by leaving ribs or pillars, or by constructing artificial supports. If he fails to do this, and the land sinks he is liable for the damage that occurs to the surface owner by reason thereof, and he may be enjoined from the further removal of minerals. Whether the mine owner has worked his mine skillfully or negligently does not affect the existence of the right to surface support. . . .’ ‘The owner of the minerals has a right to so much only as he can take out without injury to the surface. . . .’ ‘Though the right of surface support is absolute, yet the subjacent owner may be relieved of the corresponding obligation by a release from the surface owner, or by the terms of the instrument creating his estate. But upon him who
thus attempts to control the rule of law, lies the burden of proof. To destroy or injure the surface, there must exist some statutory or contract authority. The intention to part with the right of surface support must appear by plain and explicit language in the grant of the minerals, or by an express exception from a reservation of them. It may not be taken away by mere implication from language not necessarily importing such a result.’ These general principles are fully supported by the cases in Pennsylvania: Lowry v. Hay, 2 Walk. 239; Gumbert v. Kilgore, 6 Cent. Repr. 406; Robertson v. Coal Co., 172 Pa. 566; Jones v. Wagner, 66 Pa. 429; Scranton v. Phillips, 94 Pa. 15; Coal Co. v. Hopkins, 198 Pa. 343; Williams v. Hay, 120 Pa. 485; and McDade v. Spencer, 6 Lacka. Leg. News, 84.”
The burden rests upon him who seeks to assert the right to destroy or injure the surface. There exists no applicable statutory enactment. Defendant must rely upon a construction of the words of the reservation in the deed. Such words must be interpreted in the light of the apparent object or purpose of the parties and of the conditions existing when the words were employed: Price et al., Trustees, v. Anderson et al., 358 Pa. 209, 220, 56 A. 2d 215, and the cases therein cited. In 1855, when the present deed was executed, it is conceded that strip mining was unknown in the bituminous coal fields. For the past fifteen years defendant deep mined only, but now has commenced to strip mine. It is, therefore, most persuasive that when, in 1855, the owners of the combined surface and coal estates made the “horizontal division“, both grantors and grantees contemplated coal mining operation as they then understood them.
Upon separation of the estates, the owner of the coal possesses an implied easement (even by necessity) to pass over the surface in order to mine the coal and remove it: Big Mountain Improvement Company‘s Ap-peal, 54 Pa. 361; Webber v. Vogel, 159 Pa. 235, 28 A. 226; Babcock Lumber Company v. Faust et al., supra.
In the light of these principles, the court is required to construe the language of the reservation. In separating the two estates and making the reservation of the coal, the deed states that the ownership of the coal is to remain: “as though the present conveyance had not been made“. I agree with what the Chancellor said: “There is a distinction between ownership of minerals and mining rights. Carlin v. Chappel, 101 Pa. 348. Parties may own all of the minerals as though the conveyance had not been made and still not be able to remove all of them due to a limitation on the mining rights. The remaining parts of the reservation which are relied upon by the defendant have to do with the right of the defendant in entering upon the land, and excavating and digging coal.” The remaining words are: “to enter into and upon and pass over [the surface]“, and “to explore, search for and excavate“; “to dig excavate or penetrate any part of the said premises” and “at all times to have free ingress and egress” and “to dig mine raise and take remove and carry away any and every kind of ore mineral metal or coal . . . [and] that such digging explorations or searches shall be conducted with as little injury or damage . . . as shall be practicable“. Certainly such words and phrases do not expressly release or waive surface rights. Neither do they unequivocally disclose the intent of the parties that the owner of the coal is to be permitted to destroy the entire surface of the land in order that he might mine the underlying coal. Unless the right has been released or waived, the owner of the surface is entitled to the unrestricted enjoyment of it except for the necessary means of egress and ingress, exploration, and reasonable facilities for mining and hauling the coal. Under the surrounding circumstances, the equivocal words of this
Where this Court (and courts below) has construed words and phrases concerning releases or waivers of surface rights, the cases have related to surface support. But the legal principle is the same. Where the surface sinks because of lack of proper support, that portion of the land becomes as useless to the owner as if the overburden had been removed. In the absence of express waiver or release, the following words have been held not to waive impliedly or release surface support: “All the merchantable coal in and underlying all that tract of land, . . . with the right to mine and carry away all the said coal and with all the mining rights and privileges necessary or convenient to such mining and removal of the same.“: Weaver v. Berwind-White Coal Company, 216 Pa. 195, 65 A. 545;
“All the coal and other minerals, lying or being in, upon or under [a certain tract].” “And the [grantee] is hereby granted the full and exclusive privilege, right and liberty of entering at will upon said land and searching for, quarrying and mining, raising, delivering, taking and carrying away said coal and other minerals, such mining operations however are not to interfere with the surface of said land. . . .” “. . . and all of the said rights . . . to be used and exercised without any liability for damages arising or resulting from the use and exercise of the same. . . .” Dignan v. Altoona Coal & Coke Company, 222 Pa. 390, 71 A. 845;
“To have and to hold the said coal in, under and upon the said piece or parcel of land . . . together with the sole and exclusive right to mine and remove the same . . . until all . . . the merchantable coal in, under and upon the . . . premises shall have been mined out and removed.” “. . . to mine all the merchantable coal upon the . . . premises in a skillful and careful manner . . .
My view is further strengthened by the use in the deed of the following language: “... provided always that such digging explorations or searches shall be conducted with as little injury or damage to the said [grantees] their heirs or assigns as shall be practicable consistently with the success of the same. . . .”
It is unreasonable to suppose that this language would have been used if the parties had already agreed that grantees released or waived their rights in the surface. It is difficult to comprehend what possible use an owner of the surface could make of this land if the owners of the coal could freely enter upon and tear apart any portion or all of the surface in order to remove the overburden and take out the coal. Strip miners are required by statute to fill in excavations. But unsightly scars from such operations, nevertheless, remain visible for many years. The damage to the land, including trees and foliage, is irreparable. Furthermore, strip mining operations would obviously defeat the very purpose of the Commonwealth‘s use.
Because, in my opinion, defendant has no right to strip mine on this tract, I would also affirm the action of the court below in granting plaintiff equitable relief. I would not relegate plaintiff to an action at law for money damage, which would inevitably result in successive and numerous law suits, as and when the strip mining was extended. The cases cited by the majority in their facts have no application to this case. Defendant‘s virtual seizure of plaintiff‘s property was not an unintentional encroachment. It amounts to a seizure of plaintiff‘s property without its consent. Under the facts there is no adequate remedy at law. See Restatement, Torts, §933; Quinn v. American Spiral Spring & Manufacturing Co., 293 Pa. 152, 159, 141 A. 855. The cases cited by appellant dealing with the doctrine of “balance of injury” or “relative hardship” have no application to
For these reasons I dissent.