216 Pa. 411 | Pa. | 1907
Opinion op
By deed dated May 6, 1865, Joseph K. Cubbage, the father
The present appellant acquired title to 14 acres and 128
It may be conceded, as is stated in the opinion of the Superior Court, that there is a present necessity for the ventilation of the Grant Mine to insure the health and safety of the miners working therein; that the old workings generated black damp, a gas dangerous to life ; that the mine inspector of the district gave notice to the defendant below that the ventilating power must be increased, and that, after an examination of the premises, he selected the location which has been
It may be that Joseph IL Cubbage, though willing to grant a right of ventilation and drainage upon his surface for the mining of the coal under it, was unwilling to extend such right to a coal territory of more than 1,000 acres adjoining or surrounding it, and, therefore, so limited it; or Lyon, the grantee, may not, forty years ago, have deemed important the right which his successor would now exercise; but, be this as it may, such right does not exist, because it was not granted. The limitation upon the right of ventilation that was granted was clearly expressed and fixed by the grantor himself, and accepted by the grantee. It remains, and must remain, as fixing the territory to be ventilated on the surface of the Cubbage tract. There is nothing in the habendum in any way affecting this limitation. This is the whole case.
The decree of the Superior Court is reversed and the decree of the common pleas is affirmed, with costs to the present appellant.