*1 reconsideration nor refusal to reconsider transform will interlocutory appeala- an order into one that is final and ble.”
Here, the order entered was not since it interlocutory However, encompasses damages. liability both same, where, here, reasoning remains the the action was 4019(c) pursuant taken to Pa.R.C.P. the order is not subject petition open judgment. to attack and/or strike a here, Where, trial court has entered a sanсtion order liability damages, judgment being for both then final, the method for appropriate appeal review would be an prescribed the time by Pa.R.App.P. within 903. The at- tempt to raise an appealable by filing petition issuе open will not be allowed.
Appeal quashed.
Garing, Appellant, SUNBEAM COAL CORPORATION.
Superior Pennsylvania. Court of
Argued Aug. 6, 1984. July
Filed *2 Kadunce, Butler, Darrell L. appellant. for Butler, Leo M. Stepanian, appellee. BROSKY, HESTER,
Before JJ. WATKINS BROSKY, Judge: *3 appeal is from on the in an pleadings quiet
action to title. contends that the instant Appellant and, no in longer agree according- coаl lease is effect. We ly, reverse.
The provision question provides lease that: (5) period This lease shall continue for a of five years from the effective date hereof or until all of the coal mined, operаtor which the coal determines can be re- and sold economy profit moved with has been or so long royalties being by as minimum advance are tendered Operator. the Coal interpreted court below this clause tо mean that
appellee could continue to have the lease in effect indefinite- into ly the future virtue of minimum by paying Indeed, royalties. the instant lease has in effect for been ten and no coal has years ever been mined. We cannot this accept contraction of the lease. provides upon happening for termination of (1) (2) Passage
three events: Determination years; five mined, the coal coal operatоr that no more can be removed, (3) and sold profitably; payment Cessation of
minimum royalties by operator. the coal By pro- viding, however, upon (1) for termination the happening (2) “or” interpreted “or” the lease must be аs meaning upon shall terminate happening one of the three conditions. given
Words are to be their obvious and mean plain ing unless the intention is clear that meaning a different required. Davis v. City Philadelphia, Pa.Super. 645, 650, A.2d The pertinеnt dictionary definition “or” is “choice things, between alternative states, or courses.” Webster’s Third In Unabridged New Dictionary. ternational Davis, the appellant argued that the “or” in word
statute should interpreted in the conjunctive in the рhrase “occupied by control,” ... or under his making both control and occupancy necessary. The court held other- wise, giving the “or” its ordinary disjunctive word meaning. The same reasoning applies the case before us. To find otherwise require interpreting would the lease in a manner which require absurd and unconscionable results different factual situations. For example, construing the lease as continuing all effect until three of the conditions (as hаve been met evidently lower court it in construed reached), order to reach the result it operator might pay any never royalty, yet the lease would continue in effect until at least years passed five had and the сoal operator had amade determination that long- coal could no mined, er be and sold removed profitably determination —a *4 that might never be made the coal operator. Another example would bе if the operator made the determina- tion that longer mined, coal could no be removed and sold profitably months, at the end six and quit also paying royalties; under the construction, lower court’s the lease nevertheless remain effect for the balance of five years.
Giving word “or” its ordinary meaning, find we provides the lease for termination upon happening any one the three conditions. Since years five have passed since the effective date of the agreement, the lease longer effect, is no quiet action to title should terminated in appellant’s have favor.
Another, independent, consideration leads to the same conclusion. Under the lease as interpreted by court, appellee trial could commence strip mining operations at his discretion as long paid he had the minimum As a royalties. consequence, appellant would be financially unable to use the land for anything but certain types agricultural purposes. The land only could be utilized as fields to grow crops. Even this limited use could not include irrigation or the planting delayed harvest orchards, vines, such as croрs etc. The reason for this is clear. Any investment the use or of the including buildings, irrigation systems, trees —could land— scooped up by appellee’s giant coal shovel at time. any With this possibility always present, appellant could nоt develop his land or utilize it but a limited very fashion. This position is not favored in law. “It is against of the policy unduly law to restrict the use of land so that the deprived owner is of the usual rights, privileges, and incidents of ownership possession.” Mahrt v. First Christ, Scientist, Church N.E.2d 75 O.L.A. The Supreme Court of Oregon spoken has also on this point: that, public rule is because of the policy “[B]ut favoring use, untrammeled land such restrictions are con- strued most strongly against the covenant will not be enlargеd by construction.” ux., et ux. v. Aldridge Saxey et Or. 409 P.2d Construing appellee lease as would have us do results in this severely Thus, circumscribed useability land. for this addi- reason, tional we find properly interpreted the lease appellant A suggests. third rеlated also reason favors this interpretation. *5 circumstances, certain duty
Under the will a imply law mine, to even the face of minimum royalties.1 law, Pennsylvania presumption a is created this form contract. into,
When this contract was entered the defendants were land; the owners of the coal under seventy-five acres of in place; they get the coal was wanted and enjoy to the it; if had plaintiff buy value of wanted to and indefinitely in place for operation, leаve it future each party would on the lump have dealt basis sum for the coal under tract, it, or at per so much acre for would have for arranged payment, just as if they would have done had subject might, contract been land. Eаch contract, to preliminary sought by have to surveys the proximate ascertain quantity place, and thus have value, fixed in their but the number tons per and value ton have express part been no contract; written a round sum fоr whole or per acre represented would have the price willing the sellers were to accept buyers give. to But although the contract was a sale of the coal in did not place, they on the bargain lump Why? bаsis of a sum. Because the plaintiff was not a purchaser coal or lands to hold for appreciation in future price, view of a sale for round or sum a lease others at it profit; was an operator who desirеd mine and market the coal at a profit, intending operate therefore, immediately; operations, all such more pay it is convenient to while the on, operation going expenditure involves an of far less cаpital, consequently charge. a less fixed The al., & Wilkes-Barre Coal Lehigh Wright Co. v. et 387, 397-8, Pa. 35 A. Powell also See Burroughs, Pa. 329 implied to mine is dependent upon the amount
of the minimum royalty
potential
vis-a-vis
in-
Person,
1. The case of Chauvеnet v.
217 Pa.
A. 855
relied
upon by
parties,
point.
both
is not
that case
on
lease in
contained
which,
surprisingly,
present
a forfeiture clause
not
is not
here.
if
produced
property
logic
come to be
is mined.2
*6
minimum
royalty
behind this is that a substantial
advance
of the
to consider that
parties
royalty
will evince the intent
A minimal minimum
performance.
an alternate form of
will,
intent of
contrary,
to the
evince the
royalty
stop-gap
parties
royalty
tempоrary,
the
to consider that
Co., 346
8
measure. See Reis v. Norton Coal
S.W.2d
(Ky.Crt.App.1961);
v. American
Weatherly
Agricultural
(1933);
Co.,
Tenn.App.
16
Two
with minimum advance
quoting
are worth
for their
of the law.
explanation
all
of
the
and
Generally,
exploration
leases
land for
development
of minerals are executed
the lessor
the
condition,
and
hope
upon
express
implied,
the
either
or
minerals;
that
the
and
developed
land shall be
it
unreasonable,
would be
and
and contravene the
unjust
leаse,
spirit
nature and
of the
to allow the lessee to
length
continue to hold under it
considerable
of time
making any
develop according
without
effort at all to
to
lease; and,
the
express
implied purpose
or
оf the
forfeiture,
general,
equity
while
abhors a
when such
yet,
public
a forfeiture works
and is essential to
and
equity,
land,
private interests in the
of minerals in
landowner,
the
as the public,
protected
well
will be
gas
types
2.
has been found in oil and
leases as well as other
mining
Bloomfield,
Corp.
situations.
Oil
v.
103 Cal.
Richfield
Porter,
(1951);
App.2d
Spaulding
from the laches the lessee and the forfeiture of allowed, where such forfeiture does not contravene plain unambiguous stipulations in the lease. (N.S.) L.R.A. unreasonable, unjust, It would countervene the lease, nature and spirit allow lessee continue to hold his term for a considerablе length time, making any without effort to work the mine. Such rights parties construction would enable him to prevent getting lessor from his royalties under express same, covenant pay for and deprive him of opportunity himself, all to work mine permit or others to do so. The law does practical not tolerate such *7 permit will it absurdity, injus- nor of such possibility lease, tice. It is of the essence of the necessarily implied, that shall the lessee work the mine with reasonable diligence, or surrender the lease. Jones, 164, v. 617
George Neb. N.W.2d in this law Commonwealth also finds an implied duty Co., mine. v. Aye 193 Pa. Philadelphia A. provided test well drilled within six months “and if oil should be found paying quantities to on complete a well the lеased premises within the next six months or rental pay yearly per acre for the delay.” Aye, supra, at A 193 Pa. A. 556. drilled, test well was but an dry. was court found implied not, course, to drill other test duty Aye wells. totally stand, on with the case. point instant It dоes however, predilection for a in this Commonwealth which favors consequent implied mine. with Together supra, persuades Lehigh, Aye us that our holding is but an today application settled doctrine a slightly different factual context.
Judgment to the reversed remanded trial court entry appellants. favor of
HESTER, J., files a concurring statement.
HESTER, Judge, concurring: I concur in the result reached I majority. am of opinion that the lease terminated after the passage five years.
L. His Wife METAL, INC., ROHANNA IRON AND Andrew K. Rohanna Rohanna, Appellants. and Robert E.
Superior Pennsylvania. Court of
Argued March 1985. July
Filed