246 Pa. 161 | Pa. | 1914
Opinion by
This bill was filed for an accounting for coal mined and removed by defendant and not paid for. There is no substantial dispute about the facts and the case turns upon the interpretation of the contract between the parties. The agreement is in writing and was executed July 16,1878. The elause which forms the basis of this litigation provides as follows: “And further it is hereby agreed, that the said party of the second part may continue to mine the coal from the lands so held by the Northern Coal & Iron Company and the said Lazarus D. Shoemaker as tenants in common, paying to the said L. D. Shoemaker, his heirs or assigns, at the rate of twenty-five (25) cents per ton for his proportion of the coal so mined as heretofore and according to their established usage and practice and without any liability for any damage that may occur from mining and removing the coal, or any part thereof in or from said land so as aforesaid held in common or for the occupation and use of the surface thereof.” The primary purpose for executing the agreement of 1878 seems to have been to grant or lease all the merchantable coal underlying a certain five-acre tract of land belonging to L. D. Shoemaker, but which was independent of and had no connection with the interest held by him as tenant in common in the coal which forms the subject matter of the present controversy. In 1871 the Northern Coal &
It is argued that the phrase “in accordance with their usual conditions and practice” which appears in another clause of the lease relating to the coal held by Shoemaker as tenant in Common, was intended to include in the agreement of 1878 the “conditions and practice” which the lessee company adopted as to sizes of coal to be paid for under the lease of 1871. "The same argument is made as to the phrase “according to their established usage and practice” which appears in the clause herein-before set out. As to this contention the learned court
After a careful consideration of this entire record we have concluded that the learned court below properly decided the case under the facts as well as the law.. The learned chancellor gave the case intelligent and exhaustive consideration and reached a conclusion that accords with right and reason, and does no violence to es
Decree affirmed at cost of appellant.