Leap v. Leahey, 67 Pa. Super. 337

Leap v. Leahey

67 Pa. Super. 337 | Pa. Super. Ct. | 1917

Opinion by

Williams, J.,

Plaintiff filed a bill in equity averring that he was the “lessee and owner of all the coal in what is known as the ‘Lemon Seam,’ on, in and under a certain tract of land situate in Washington Township, Cambria County, Pennsylvania, known as the ‘Dysart and Laughman tract,’......as leased by Daniel Laughman and others to John W. Mentzer, by written agreement dated April 10, 1900”; that defendants had begun removing coal covered by the lease in 1910 without the consent of the plaintiff; that in the course of this unlawful mining they had “cut off the air course or airway which plaintiff constructed *340and provided to supply air to Ms workings, and...... are maintaining an air door wMcli completely cuts off the supply of air to plaintiff’s minesand prevents plaintiff from properly operating the same, and at times causes the miners to withdraw from their work”; and that large quantities of coal had been converted by defendants. The relief asked for was that defendants be restrained from mining the coal and cutting off the air supply, and that they be required to account for the coal converted.

Plaintiff leased “all the coal in what is known as the ‘Lemon Seam’ on, in and under the said' tract of land,” also the right to use all of the timber growing or that may grow on said tract of land, for mining and quarrying; also right of way over, under or through said tract of land for the purpose of getting at other lands and conveying coal and other substances therefrom.” The description of the land embodied in the lease is as follows: “......a certain tract of land known as the Dysart and Laughman Tract, situated in the Township of Washington, County of Cambria and State of Pennsylvania.” The defendants, after admitting the lease, denied that the description covered the portion in which they were operating; that their,mining was illegal; that the lease gave plaintiff the exclusive right to mine the coal in the Lemon Seam on the said tract; and that they had cut off the air supply. They averred that they had improved the air supply; that plaintiff had not diligently mined the coal and had an adequate remedy at law, and prayed that the bill be dismissed;

The court found that the rights under the lease were vested in the plaintiff; that the surface rights were vested in two of the defendants; that they had mined and removed 7,428 gross tons of coal from the tract; that plaintiff was still removing coal from the other end of the tract, and needed the air circulating through the old workings; that defendants in mining had interfered with the free circulation of air by maintaining an air door, *341and that this would cause irreparable injury to the plaintiff. The court held that the lease gave lessee the exclusive right to mine all the coal and that defendants’ trespasses should be restrained by injunction, and ordered defendant, John Leahey, to pay to plaintiffs, seven cents a ton damages for the coal illegally removed.. From that decree the present appeal has been made.

1. Appellants contend that, as the determination of the case depended upon the construction of a lease, equity had no jurisdiction; that when the right to real estate is in dispute, title must first be determined by a court of law before the trespass could be restrained.

The bill was to restrain defendants from interfering with plaintiff’s air supply, the right of passage of which through the old workings not being denied by defendants and being one of the things granted in the lease. The court had power to grant relief under the circumstances: Keppel v. Lehigh Coal and Nav. Co., 200 Pa. 649. The lease was admitted as a valid instrument and the amount of the grant only was in dispute. The court had the right to construe the lease and determine its effect: Jennings Bros. & Co. v. Beale, 158 Pa. 283.

2. Was the description sufficient to satisfy the statute of frauds?

The cases cited by the appellant might be applicable had it not been for the fact that plaintiff entered into possession under the lease, operated the mine and paid royalties on coal mined from the disputed land to one of the defendants. The statute does not apply to executed contracts: Parry v. Miller, 247 Pa. 45.

3. Is the lease a mere license without more force than a permission to mine coal?

Ordinarily the granting of the right to remove all the coal under a tract of land is construed as a sale of the coal in place: Kingsley v. Hillside Coal & Iron Co., 144 Pa. 613; Finnegan v. The Pennsylvania Trust Co,, 5 Pa. Superior Ct. 124. The lease granted a perpetual right of way, and the right to mine “all” the coal upon a royalty *342basis, for a consideration, and we think it was a sale of the coal in place.

The decree is affirmed. Costs to be paid by the appellants.