McCracken v. Gumbert

131 Pa. 36 | Pa. | 1890

Opinion,

Mr. Justice Williams:

This case depends on the construction of the grant of Alexander McClure to Farrow, Gumbert & Co. McClure was the owner of a farm containing 244| acres, and, by contract made on June 80, 1859, sold all the coal under said farm to Farrow, Gumbert and Huey, reserving the red coal at the outcrop and six acres of the black coal for the support of the farm buildings and for domestic purposes. With the coal, he conveyed, in express terms, all the rights and privileges of mining, with the right to make drifts, air-holes, and pit-mouths for ventilation and drainage, and the “ right of way for railroads over the surface at the crossing of ravines; ” also, the privilege of “ forever hereafter running their coal from other lands through-the entries and railways made and used in taking out the coal above granted.” The outcrop of the coal on the McClure farm, when mining began, was on the face of the ridge fronting the Monongahela river. The seam or vein of coal extended back from the river, under the broken upland, through other tracts in the rear of the McClure farm, one of these being the Pierce tract, the coal under which is also owned by the appellants. The line between the McClure and the Pierce tracts runs along and near the bottom of a deep ravine, — so deep that it cuts through the vein of coal, leaving the outcrop on each side some fifteen feet above the bottom of the ravine. Having substantially exhausted the coal under the McClure, the appellants made an opening through the outcrop to the surface, built a road over the surface across the ravine to the outcrop on the Pierce, and commenced to mine their coal under the Pierce, and to run it “ through the entries and railways made and used in taking out the coal ” from the McClure, to the means of shipment on the river side of the ridge. The opening from the entry under the McClure through the outcrop to the surface, and the road across the ravine to the outcrop on the Pierce, constitute the trespass complained of.

On the trial in the court below, the learned judge held that, unless this opening out to the surface, and the road over the ravine, were used in getting the coal out from under the McClure, “ the defendants cannot justify their act as lawful under the privilege conferred by the deed and the agreement mentioned.” As there was no pretence that the opening and road across the ravine had been so used, or were built for any such purpose, this was a direction to find for the plaintiff, and is made the basis of the first assignment of error. If we turn to the agreement of June 80, 1859, it is very clear that both McClure and his vendees knew that the vein of coal that extended through his own land continued beyond it through other lands lying behind his own and that must be reached by means of the entries and railroads to be made in taking the coal out of liis lands. It is a reasonable presumption that they knew that the line between his land and the tract immediately behind it was in a ravine deep enough to cut through the coal, and that it could be transported through the entries under his land only after connecting such entries with the coal on the other side of the ravine by means of a surface road crossing from outcrop to outcrop. With such knowledge of the actual situation on the ground, McClure expressly granted the right of way over ravines, and the privilege of “forever hereafter running other coal from other lands through the entries and railways made and used in taking out the coal hereinabove granted.”

The construction which the court below put upon this grant wholly defeats it. The ravine was between the McClure and the Pierce tracts, and there could not be continuous mining under the McClure up to the line of the Pierce. The grant is therefore inoperative, according to the construction that prevailed at the trial, because the process of mining under the McClure did not carry the entries and railways up to the line of the Pierce. But the grant is of the right of “ running other coal from other lands through the entries and railways made and used in taking out the coal hereinabove granted.” The “ other coal from otherlands ” must first be brought to the entries and railways under the McClure, and then it may be transported over them. It can only be brought to them by means of a connection through the outcrop and over the ravine. This was a fact known at the time the contract was made, and therefore within the contemplation of the parties when the grant was incorporated into it. It is tb'e duty of tbe court to give snob a construction to tbis grant as shall give it effect. To do this, we must hold that tbe right to bring the coal from other land to the entries and railways under the McClure is necessarily incident to the right to transport it over them, and that in opening a way from the side entry to the surface, and over the ravine to the Pierce, the appellants were not trespassers, but were in the exercise of a clear legal right, under the terms of the grant. This is conclusive of the case as now presented. There is no proof of the conversion by the appellant of any part of the red coal; and the discussion of the appellee’s interest therein, as a tenant for life of the surface, becomes unnecessary.

Judgment reversed.