266 Pa. 18 | Pa. | 1920
Opinion by
This bill in equity was filed to restrain the owner of land from interfering with certain coal mining operations thereon. In 1902, M. B. Kelso, the owner of a
Soon after his purchase, plaintiff constructed on the three acres the necessary mining apparatus and worked the mine for five years; during which time he mined and removed all the coal in twenty-three acres, leaving six
Inasmuch as the deed to Greek expressly limits the time for mining the coal to a period not exceeding ten years, we are unable to agree with the trial court’s conclusion that the time for its mining is without limit. Nor can we agree that there is an implied covenant for a further occupancy of the three acres by Greek, on condition that he pay for the use thereof. There is no such provision in the deed and we cannot make a new contract for the parties. It says nothing about mining the coal or any part of it after the ten years, nor of using the three acres for such purpose. As we understand the deed it means that the price paid for the coal included the use of the three acres during the ten-year period, with the right to erect thereon a mining plant “with.
The fact that plaintiff removed more than three-fourths of all the coal on the twenty-nine acres in five years clearly shows that the time fixed was ample for the mining of all the coal, and indicates the absence of any excuse for a way by necessity. In fact the court below affirmed defendant’s request to the effect that there was here no right-of-way by necessity. The purchaser of unmined coal has a right to use so much of the surface as is necessary in its mining (Trout v. McDonald, 88 Pa. 144), and where the coal purchased is surrounded by other land of the vendor the vendee has the implied right to cross such other land in the mining and removal of the coal. Here, however, the matter of access to the coal is provided for by express covenants, which cover the time, place and manner of the mining, and leave nothing to implication. The law will not imply a different contract from that which the parties themselves made. And there can be no implied covenants as to any matter specifically covered by the written terms of the contract itself: Kachelmacher v. Laird, 92 Ohio 324; Stoddard v. Emery, 128 Pa. 436; Baldwin Lumber Co. v. Todd, 124 La. 543. Where the parties had agreed upon the mode of access to coal conveyed, no implication can be allowed of any other way, however convenient: Bascom et al. v. Cannon, 158 Pa. 225, 232; see also Bosch v. Hoffman, 42 Pa. Superior Ct. 313; 27 Cyc. 729. Implied covenants are operative only when the parties have omitted to insert covenants in the instrument: 7 R. C. L., p. 1093.
As plaintiff had no right to occupy the three acres, after the expiration of the ten-year period, his bill must fail, but we deem it unnecessary at this time to decide as to the ownership of the unmined coal.
The decree is reversed, the injunction is dissolved and plaintiff’s bill is dismissed at his costs.