275 Pa. 389 | Pa. | 1923
Opinion bt
This controversy is over the title to a vein of coal. William Armstrong, the common source of title, was the owner of a large tract of land lying along the Monongahela River in Cumberland Township, Greene County, and, in 1847, conveyed seventy-six acres thereof to John L. Dawson; the deed therefor contains the following clause: “together with the privilege of mining under the adjoining land of the said party of the first part [now occupied by Alfred Armstrong] and taking therefrom the vein of or bed of stone coal therein situate within
This appeal is by defendant from judgment entered on a verdict for plaintiff upon an issue awarded under section 2 of the Act of June 10, 1893, P. L. 415, to determine the ownership of the Pittsburgh vein of coal in the thirty acres. The act provides, inter alia, that a party in possession of any lands or tenements, under claim of title, may petition the court of common pleas for a rule upon an adverse claimant to show cause why an issue should not be awarded to determine the title or right of possession; and, if the issue is awarded, that the verdict shall have the same effect as in an action of ejectment. Defendant denied plaintiff’s claim of possession and on that ground challenged the right to award an issue. The trial court disposed of this question on petition, answer and testimony; as appellant has failed to print the latter, we cannot say the court erred in finding plaintiff had such possession as entitled him to the
The real question is, What coal did the parties intend to convey by the Armstrong deed? There is no patent ambiguity in the expression, “the vein or bed of st'one coal therein situate,” but a latent ambiguity arises from the fact that there are two veins of coal, either of which, standing alone, answers the call in the deed. In such case, evidence aliunde is competent and necessary to explain what was in the minds of the parties; for this purpose plaintiff submitted testimony tending to show that in 1847 the Waynesburg vein was well known with open mines therein near the thirty acres, while the Pittsburgh vein was unknown in that neighborhood and had never been opened there for mining purposes; also that the former vein could be conveniently mined from the adjoining premises, embraced in the deed, while the latter could be mined only by sinking a deep and costly shaft. The defendant offered evidence tending to show the Pittsburgh vein outcropped at various places along the river and was well known in 1847, and prior thereto, and that coal had been mined therefrom, although not in this tract; it also appeared that such coal was of better quality and, the vein being thicker, of much greater commercial value than the upper vein.
To show general knowledge of the Pittsburgh vein, the defendant offered in evidence certain Pennsylvania geological surveys beginning with that1 for 1839, and an annual report of the corporation known as the Monongahela Navigation Company for the year 1840, also extracts from the book of B. C. Taylor on Coal published in 1848. These apparently reliable reports and publications were made at a time to throw light upon the ques
Crumrine’s History of Washington County was properly excluded as merely the local history of a sing!? county, not the one here in question, and in no sense a general history, and was seemingly written about forty years after the time here in question. There was no error in refusing defendant’s offer to prove by the witness, Andrew Brown, inter alia, that his father bought real estate at Gray’s Landing in 1846. That was apparently
The premises or granting part of the deed in question conveys but one vein of coal and is not enlarged so as t'o embrace both by the above-quoted words in the habendum, viz: “together with the privilege of mining and taking the stone coal within the boundaries described”; these words properly refer to the stone coal granted earlier in the deed. The habendum cannot change the subject of the grant, while it may explain and qualify the interest granted or define its extent: Darrah v. Darrah, 202 Pa. 492, 495; Watters et al. v. Bredin, 70 Pa. 235, 237; Lancaster Bank v. Myley, 13 Pa. 544, 551; Manning v. Smith, 6 Conn. 289; Brown v. Manter, 21 N. H. 528. The habendum of a deed must give way when it is repugnant to the premises: Karchner v. Hoy, 151 Pa. 383; Tyler v. Moore, 42 Pa. 374, 386; 18 C. J. p. 331, section 329.
True, the construction of a deed is for the court, yet, whenever the question of what property it conveys is doubtful and depends on evidence aliunde, the case is for the jury (Trustees of Kingston v. L. V. Co., 241 Pa. 469; Safe Deposit & Trust Co. v. Mfg. Co., 229 Pa. 295; Little v. Greek, 233 Pa. 534; Lycoming Mutual Ins. Co. v. Sailer, 67 Pa. 108; Hoffman et al. v. Danner et al., 14 Pa. 25; Brownfield v. Brownfield, 12 Pa. 136; Scott v. Sheakly, 3 Watts 50; Collins v. Rush, 8 S. & R. 147) and here the trial judge properly so held.
In 1899, while Dowlin was holding the title now vested in the plaintiff he conveyed the Pittsburgh vein of coal in an adjoining tract to Josiah V. Thompson et al. and one of the courses in that deed says, “thence by coal claimed by Dawson’s heirs north sixty-six degrees six minutes West sixty perches”;. while that is this coal it is not an admission of adverse ownership. .Then there is the testimony of Charles Kerr to the effect that about the same year he asked Dowlin if he was going to try to hold the coal and the latter said he did not have money to go to law, but sometimes talked that he would try t'o do something about it. As the deed of the surface from Dowlin to Randolph, made in 1899, does not mention either vein of coal, it cannot be construed as an election by Dowlin to take the Waynesburg vein. There is nothing in the record to show any admission by Dowlin that he was not the owner of the Pittsburgh vein, or any conduct on his part to justify the defendant’s claim of an estoppel, and the trial judge properly refused to submit that question to the jury; for whether an estoppel re-
For nearly twenty years prior to the commencement of this suit, tbe Pittsburgh vein of coal had been assessed to and the taxes paid thereon by the defendant and by Josiah Y. Thompson, her predecessor in title. While such assessment and payment of taxes is evidence of a claim of possession, it does not prove title (James et al. v. Bream et al., 263 Pa. 305); but based largely thereon the trial judge submitted defendant’s claim of adverse possession to the jury, and that was certainly all to which she was entitled upon that branch of the case. As a new trial will be granted, it is unnecessary to discuss the question of the alleged improper remarks of counsel.
For the exclusion of the state geological surveys, the report of the Monongahela Navigation Company and the Taylor history, the judgment is reversed and a venire facias de novo awarded.