1 Pa. Commw. 561 | Pa. Commw. Ct. | 1971
Lead Opinion
Opinion by
This appeal is from judgments entered upon a jury verdict after trial of an eminent domain case.
By deed dated May 6,1948, Lewis Gerosin and Florence, his wife, granted and conveyed unto Kenneth H. Wagner “all that coal known and designated as bed ‘E’ and all coal above bed *E’ lying, being in, or upon” a tract of land in Conemaugh Township, Somerset County. On May 7, 1948, Kenneth H. Wagner and Helen S., his wife, granted and conveyed unto Kerby N. Hamer an undivided one-half interest in said coal by description identical with that in the Gerosin-Wagner deed. On March 30, 1962, Lewis Gerosin, widower, executed and delivered his deed conveying unto Anna H. Haydu and Louis, her husband, the tract of land from which the “E” seam of coal had been conveyed to Wagner. Following the recital in the deed to the Hay-dns are the words, “This document may not sell, convey, transfer, include or insure the title to the coal and right of support underneath the surface land described or referred to herein”. Kenneth H. Wagner died and Helen S. Wagner was granted letters testamentary. By lease and supplemental lease dated June 8, 1966, Kerby N. Hamer and Marion R., his wife, and Helen S. Wagner, executrix of the will of Kenneth H. Wagner, leased as lessors to M. F. Fetterolf Coal Company, Hamer’s and, by representation, Wagner’s coal. On either October
Before the trial by the traverse jury, Kerby N. Hamer died and he was succeeded on the record by his executrix, Jane Hamer Cooper. Further, prior to trial the interest of Kenneth H. Wagner in the coal was awarded to Helen S. Wagner by the Orphans’ Court of Somerset County. Hence the parties to the proceedings were the Commonwealth as condemnor; and Anna G. and Louis Haydu, surface owners; and Helen S. Wagner, co-tenant of the coal; Janne Hamer Cooper, executrix under the will of Kerby N. Hamer, deceased co-tenant of the coal; and M. F. Fetterolf Coal Company, Inc., léssee of the coal, all condemnees.
Pre-trial conferences were conducted at which the trial judge advised counsel of his opinion and intended ruling that Section 507(a) of the Eminent Domain Code of 1964, Special Session, June 22, P. L. 84, Art. I, Sec. 101, 26 P.S. 1-101, was not applicable in this ease because there were here two fee simple estates, one in the surface and the other in the coal and that, therefore, while the claims of the surface owners and the coal owners might be tried in the same proceeding, they
Upon a verdict slip provided under instructions of the trial judge, over objections of the Commonwealth, the jury recorded the following verdict: “For Louis and Anna G. Haydu, $23,500; For Helen S. Wagner, Jane Hamer Cooper, Executrix, and Fetterolf Coal Company, Inc., $25,000.”
At issue here in the broad sense is whether there is to be engrafted upon the Eminent Domnin Code an exception to its plain wording; an exception, moreover, the creation of which would in our judgment harmfully affect an important improvement in the law. Section 507(a) of the Code, 26 P.S. l-507(a) provides as follows: “(a) The claims of all the owners of the condemned property, including joint tenants, tenants in common, life tenants, remaindermen, owners of easements, and all others having an interest in the property, and the claims of all tenants, if any, of the property, shall be heard or tried together and the award of the viewers or the verdict on appeal from the viewers shall first fix the total amount of damages for the property, and second, apportion the total amount of damages between or among the several claimants entitled thereto.”
As stated by the Joint State Government Commission in its Report, “the purpose of this section is to avoid several suits for damages for the same property.”
In Porter v. Commonwealth, 419 Pa. 596, 215 A. 2d 646 (1966), the lessee of limestone underlying five parcels of land each in separate ownership sought to have his claim for damages resulting from condemnation of the five tracts assessed in one proceeding. The trial court construed Section 507(a) as prohibiting assess
However, as the learned court below has expended considerable effort distinguishing Porter v. Commonwealth, supra, it may be appropriate to enlarge , on the subject of this case here. The distinction found by the court , below is that while here the coal was conveyed by deed without reservation of interest in the grantor, in Porter it was transferred by lease. As a result, the lower court concludes, we have here two separate, fee simple interests, and hence,, for purposes of Section 507(a) two condemned properties; whereas the lease in Porter created only an interest in. each of the five condemned properties. In support of this theory the lower court cites numerous cases construing instrur ments conferring mineral rights, none, however, involving the assessment of damages resulting fr.om condemnation.
“I. A coal or mineral lease, although in the form of a lease and although a term of years is prescribed, conveys a fée simple estate to the ‘lessee’'if he is given dominion over all the minerals. Each of the agreements gave the appellant the exclusive rights to remove all limestone from the premises described, required doWrn payments or contained covenants to mine with due diligence, and provided for the payment of minimum' or guaranteed royalties. Each gave him absolute dominion over all the limestone and, therefore/vested in him a fee simple title to it.
“IT. As ithe owner in fee simple of all of the limé-stoné oh án assemblage of five tracts totalling altogether more than 190 acres and all being used as a limestone mining and processing operation, the appellant is entitled to have the damages, arising from a con*569 demnation of part of the property assessed as if such tract were one parcel.”
Appellant’s conclusion was as follows: “The five agreements entered into by the' appellant were typical Pennsylvania mining leases giving him the exclusive right to remove all of the limestone from the properties and obligating him to pay guaranteed royalties as well as to make down payments or to mine With due diligence. They conveyed to him a fee simple title to the limestone, conditioned upon its removal within the'timé specified. ' ■
“As the fee simple landowner of five contiguous tracts of minerals, Sechan is entitled to have his damages assessed in one proceeding as if such tralct were one parcel.” ■ ' ■
The appellee in Porter, argued . . . “it must be noted that the appellee’s position is that it is immaterial whether Sechan, the common mineral lessee, actually owned the' minerals in question :in fee simple. Rather the appellee’s contention is that it is common owner) ship of the surface which is necessary.”' Its Concliisioti was in part: “The doctrine of fee simple ownership of minerals should be limited to thé field of minerál law; from whence, it derived and should not be extended to the law of eminent domain where it is neither practical or logical.” ' '
The Supreme Court agreed with- the appellee. On its facts Porter is a stronger case for recognizing the mineral interest as a separate property under 507(a)"' than the instant suit. There the limestone was being mined from five tracts as an integrated operation ; the difficulty in proving damages to such in five separate proceedings is apparent. Here the coal owners’ operations are confined to the one property condemned.
. .It must be. borne in mind that we are here interpreting the words of the legislature, not trying titlé to property. The legislature plainly meant by 507 (;a) to. promote the speedy and efficient disposition of eminent domain eases and incidentally to place the constit-tutional limit of just compensation on éách parcel condemned.. Ghostly. formulas nulled from ancient authorities on land tenure are of little assistance in determining legislative intent in 1964. . •
- To declare that because by the law relating to estates in property there is here created a fee simple title to coal, the legislature did not intend the words “condemned property” in Section 507(a) to mean the area as ..defined by the surface, is simply to beg the question. -For instance, a ground rent has been held to be an interest in land distinct and separate-from the
The contention that the presence Or absence of the “possibility of reverter” of minerals should be a consideration in determining the applicability of Section 507(a) has no more merit than the suggestion that the name “fee simple title” attached to an interest should have significance. For instance, in Commonwealth v. Solley, 384 Pa. 404, 121 A. 2d 169 (1956), a lessee of clay for the term of one year was held to be an owner of land within the meaning of a statute imposing liability on land owners for injuries to highways caused by subsidence. A lease of coal for seven years was held to be an absolute conveyance not only of the coal but also of appliances connected with the mining ánd transportation of the coal. Montooth v. Gamble, 123 Pa. 240, 16 A. 594 (1889). In Gilberton Fuels, Inc. v. Philadelphia and Reading Coal and Iron Company, 342 Pa. 192) 20 A. 2d 217 (1941), a lease of coal for fifteen years was held to be a conveyance of the coal for all purposes including taxation. Furthermore, from a practical standpoint, it would be less difficult, following the procedure prescribed by Section 507(a) of the Eminent Domain Code, to determine and apportion damages to a mineral interest where no reverter is possible than where such possibility exists.
Dills v. Plumville Railroad Company, 222 Pa., 516, 71 A. 1072 (1909), relied on by the appellee, is not
In any case, the determination of whether a particular instrument transferring mineral rights is a sale absolute or conditional sale: or a lease or a there license o~' whetlier it ~reatea~ a- corporeal or an incorporeal ~ght. is difficult: enough when necessary. See Hummel v. McFadden, 395 Pa. 150 A. 2d 856 (1959). It should not be required in eminent domain proceedings in the face of clear legislative purpose to the eontrar~y and where the right --of .the - owner- to establl~h and obtain just compensation is fully - protected; . - . As stated by .M~r: Chief Justice BELL in
As stated by Mr. Chief Justice Bell ina concurring opinion inPorter v. UQm~n~o~w)ea,lth, .supra, "The Legi~- lature clearly intended the ela~m~a~n,ts and the term `property' to mean and `include all persons whO claim a fee and all persons who are tenants or remaindermen or owners of easements,~ as well as. all other persons who haye any interest in the• property which was con~ demned". 419 Pa. 600; 215 A. 2d 649 (Emphasis in original.) The judgments are vacated and the record is
The judgements are vacated and the record remanded for a new trial.
Both briefs give tbe date as October 22, 1966. The petition for viewers avers that the declaration was filed- December 27, 1966. The jury of view found the date to be December 27, 1966. The trial judge charged the jury that the taking occurred December 22, 1966, but in his opinion accompanying the order refusing a ' new trial • states that the petition was filed October 22, 1966. The. declaration was not returned to this court in response to our writ nor is a copy of any docket entry for this basic pleading furnished us.
The trial judge severed for later and separate trial the apportionment of damages to the coal among the parties claiming interests therein, Wagner and Cooper as owners and Fetterolf, Inc., as lessee.
Werner v. Commonwealth, 432 Pa. 280, 247 A. 2d 444 (1968) is an instance of a trial conducted-in "accordance with 507(a) in where there was both a “surface fee” and a '‘mineral fee".
Eminent Domain Code, 1964 Special Session, June 22, P. L. 84, Ar,t. -I, .Section -201(2), .26 P.S. 1-201(2). .
26 P.S. 1-402.
Dissenting Opinion
I respectfully dissent. The majority correctly accepted the integrated use doctrine promulgated in Porter v. Commonwealth,, 419 Pa. 596, 215 A. 2d 646 (1966). The doctrine envisions, where there is both a surface fee and a mineral fee, a single trial conducted in accordance with Section 507(a) of the Eihineht Domain Code, 26 P.S. §l-507(a). Such a trial was ápprovéd in Werner v. Commonwealth, 432 Pa. 280, 247 A. 2d 444 (1968), and such a trial was conductéd in the .instant case, even though the judge below ruled that Section 507(a) did not apply as to. a single verdict for the total amount of damages to both the surface fee and mineral, fee. However, after relying on Porter v. Commonwealth, supra, the majority here orders a new trial. It is my view that the lower court properly tried together the claims of the surface fee owners and those of the mineral fee owners. . ..
The lower court, in the face of the language of Section 507(a), did commit harmless error in instructing the jury to return separate verdicts for the respective owners of the surface fee and mineral fee. The jury verdict should have been for the total amount of damages to both the surface and mineral rights in the property. Thereafter, the total amount of damages should have been apportioned by the same jury among the several claimants entitled thereto. The property is confined to that area as defined by the fee in the surface. See Porter v. Commonwealth, supra.