93 Pa. Super. 562 | Pa. Super. Ct. | 1928
Argued April 25, 1928. Plaintiffs sued on a so-called coal-mining lease for minimum royalty alleged to be due on coal which was *564 not, but should have been, mined out of a 9 acre tract described in the lease. The veins of coal extended under a public road and under a stream on the tract, the area of the coal under both being 2.54 acres. The lease was of "all the marketable coal contained in the `E' or coke yard seam; the C-prime or cement seam; and the `B' or Miller seam under all that certain tract" of land etc. The defense was that the contract did not require defendant to mine the coal under the road and under the stream. The tonnage so unmined was ascertained by a special verdict, and judgment was entered for plaintiffs in accord with their contention that defendant was required to mine that coal or to pay royalty instead.
We agree with the construction of the contract made below. In Tucker v. Fertig,
The pertinent provision of the contract is as follows: "The lessee will work the said seams of coal according to the most approved methods of mining bituminous coal without injuring, wasting, or destroying any of the coal which is capable of being mined and *565 shipped, so that all the coal shall be taken out clean and entire from the said seams of coal, excepting such pillars or supports of coal to an amount not less than twenty-five (25) per cent. of all the coal in said C-Prime vein and not over thirty-three and one-third (33 1/3) per cent. of all the coal in said C-Prime vein, said pillars to be located by the lessee to protect and support the surface to the best advantage." The contract proceeds with further details concerning the removal of the pillars. It also provided that "lessee shall leave a lot 50 feet square in both the C-Prime or cement seam and the `B' or Miller seam under the dwelling house located on said tract......" There is a provision "that when the lessee shall have paid ...... royalty ...... on all coal mined and also on all coal which may not have been mined and removed by the lessee, which the lessee is entitled to mine and remove ...... all obligations of the lessee to pay royalty shall" cease.
Defendant contends that to mine the coal under the road and under the stream will be very expensive and dangerous, and for that reason its mining cannot have been in the contemplation of the parties when the contract was made, and therefore should not be included in the words "so that all the coal shall be taken out clean and entire from the said seams......" But it is not impossible to mine the coal, it can be mined; and all the circumstances and conditions incident to and constituting part of the subject matter of the contract were known to both parties when it was made: Redstone Oil Co.'s Dissolution,
As no other question is raised, judgment is affirmed.