187 Pa. 500 | Pa. | 1898
Lead Opinion
Opinion by
This appeal from the decree dismissing plaintiff company’s bill involves the construction of the hereinafter quoted clause in the deed of Von Storch’s heirs, conveying to said company in fee 100 acres of land in the city of Scranton.
It appears to have been fully understood by the parties that the land thus conveyed was bought for the purpose of subdivision, sale and improvement as city lots. A complete plan thereof, called “ Electric City Park,” was accordingly made by the vendee and duly recorded, designating the streets, alleys and lots located therein by names and numbers. The deed dated August 18 was duly recorded August 29, 1892. After describing the property by adjoining owners, etc., it contains this clause: “Excepting and reserving to the parties of the first part, their heirs and assigns all the coal and minerals beneath the surface of said land and belonging thereto, with the sole right and privilege to mine and remove the same by any subterranean process incident to the business of mining .... Provided, that no mine or air shaft shall be intentionally opened or any mining fixtures established on the surface of said land.”
The West Ridge Coal Company, defendant, having sul>sequently acquired title by mesne conveyances under said grant
It is unnecessary to refer in detail to the facts established by the pleadings and proofs, and found bjr the court below. They conclusively show that the shaft, fixtures, machinery and appliances complained of were put upon the said five lots by the defendant company, after it acquired title to said lots, and were used by it in manifest disregard and violation of the express terms of the above-quoted proviso. Among other things the learned trial judge found that persons who purchased and improved lots in plaintiff company’s plan, and occupied the dwellings erected thereon, as well as others, were “ annoyed by the noise occasioned by the operation of the machinery, the noise of the exhaust of steam, the dust coming from the shaft, and the unsightliness of the superstructure over the shaft,” etc. But, notwithstanding the clearly established facts in support of the material averments of the bill, he held that plaintiff company was not entitled to any measure of relief. His reasons for so holding are given in his second conclusion of law as follows: “ The defendant beixxg the owner of all the coal under, and of the surface of lots 1, 2, 8, 4 and 5 aforesaid, the proviso connected with the coal reservation relating to the opening of shafts or establishing mine fixtures upon the surface of the land, as set forth in the deed of the Voxx Storch heirs, and recited in the contracts axxd deeds in evidexxce, is xxot binding upoxx the defendarxt, and ixnposes upoxx it no obligatioxx to other lot owners, nor to the plaintiff. . . . When the owxxer of the coal becaxne the owxxer of the surface, the effect of the proviso was destroyed.”
We cannot assent to this. In view of the facts established by the pleadixxgs axxd proofs we are satisfied that the learned
“Words of proviso and condition will be construed into words of covenant when such is the apparent intention and meaning of the parties: ” Parsons on Cont. 28.
In this case the manifest intention of the parties was, in the first place, to except from the grant, and reserve to the grantors, their heirs and assigns all the coal and minerals beneath the surface of the land described in the deed, with the right to mine and remove the same by any subterranean process, etc. This was done in language that is not susceptible of any doubt. In the second place, it is equally clear that it was their further intention and agreement that in the exercise of the mining rights and privileges thus excepted and reserved, the grantors, their heirs and assigns, owners of the coal and minerals, would not intentionally open any mine or air shaft or establish any mining fixtures on the surface of the land; and as expressive of that mutual agreement the proviso was added, and, in effect, the grantors thereby covenanted for themselves their heirs and assigns that neither they nor either of them would “ intentionally” open any “mine or air shaft” or establish “any mining fixtures ” on the surface of the land. The restriction thus placed on the mining rights and privileges was as permanent and enduring as the rights themselves. It was evidently im
Where, as in this case, it is quite apparent from the written documents in evidence, and from all the facts and circumstances of the case, that the restrictions contained in the proviso were annexed to the reservation of the underlying coal, etc., for the manifest purpose of protecting or rendering more beneficial and advantageous the occupation of the granted estate, when the same would be divided into separate parcels and owned by different individuals, we have a case in which equitable relief is the only adequate remedy.
The underlying principle is similar to that recognized in several of our cases, among which are Clark v. Martin, 49 Pa. 289; St. Andrew’s Church’s Appeal, 67 Pa. 516; Muzzarelli v. Hulshizer, 163 Pa. 643; Bald Eagle Valley Railroad Co. et al. v. The Nittany Valley Railroad Co. et al., 171 Pa. 284, where the authorities are reviewed by our Brother Dean; Landell v. Hamilton, 175 Pa. 327, 333. In the latter it is said that the test by which to determine whether a covenant in a deed runs with the land is the intention of the parties. To ascertain the intention, resort must be had to the words of the covenant, read in the light of the surroundings of the parties and the subject of the grant.
Without further elaboration or discussion of the subject, we are satisfied that, on principle as well as authority, the plaintiff company is entitled to relief. The decree is therefore reversed with costs to be paid by the defendant; and it is now adjudged
Dissenting Opinion
dissenting:
The defendant is tbe owner of both the coal and tbe surface, and lias tbe rights incident to ownership in both. The covenant restricting its rights under its purchase of the coal, ran in favor of the plaintiff as the surface owner, but did not include rights of any other except by wbat seems to me inadmissible implication against the express words of the contract of the parties. When, therefore, the defendant bought the surface of the lots in question, the full title to both parts merged, and defendant became owner of the whole in fee without restriction. I would affirm the judgment for these reasons, more fully set out in the opinion of the learned judge below.
