55 Pa. 9 | Pa. | 1867
The opinion of the court was delivered, May 20th 1867, by
— This case depends upon the construction to be placed upon a deed-poll, executed by Andrew Wickizer on the 1st January 1808, granting, in consideration of $6.50, unto Edward Fell, blacksmith, his heirs, executors, administrators and assigns for ever, “ the free right to dig coal at the coal-bed under the foot of the mountain on my lot No. 22 in 3d division of lands in Wilkes-barre, with the privilege freely to carry the coal to and from said coal-bed through my lands at all times hereafter, doing as little damage as may be in the uses aforesaid.”
The grantor was the owner of the whole tract and a resident of the township of Wilkesbarre, in which the land was situated, and the grantee was a blacksmith in the borough of Wilkesbarre.
This language does not bring the case within that of Caldwell v. Fulton, 7 Casey 478. Caldwell reserved no interest in himself. He sold for a valuable consideration all he had in the sixteen acres and all the coal in his other land — I say dll, because the grant is limited to no time, or quantity, or purpose, or person. Can a reservation to the grantor be implied in the face of terms so large ? What room was left for the grantor ? Might he mine also ? Assuredly not against the consent of his alienee, for he had sold all the coal that alienee might think proper to take or
The present case is not an exclusive right in the grantee to dig all the coal, and to any extent, and to exclude the grantor from mining also ; and is, therefore, not ruled by Caldwell v. Fulton. It is more like the case of The Johnstown Iron Co. v. The Cambria Iron Co., 8 Casey 241. “ It was not a sale of all the iron-ore, notwithstanding the stipulation that the privilege was to be given to none else, because it was to be paid for by the ton, and, of course, no more was sold than should be raised.” “ The language of Lord Ellenborough in Chetham v. Williamson, 4 East 476, is, that no case can be named where one who has only a liberty of digging for coals in another’s soil has an exclusive right to the coals, so as to enable him to maintain trover against the owner of the estate for coals raised by him.” Per Woodward, J., Id. 247.
Such a right is not exclusive in the grantee, but to be enjoyed in common with the grantor, his heirs and assigns, and the grant is, theréforé, an incorporeal hereditament. The right in the case before us is not exclusive in form, words or spirit, and is simply a privilege to dig coal at a specified coal-bed and carry away the coals so taken, and not interfering in any way with the right of the owner of the land to mine ad libitum.
It is, therefore, only an incorporeal hereditament, as has been fully explained by the learned judge in the court below.
Judgment affirmed.
