371 Pa. 232 | Pa. | 1952
Opinion by
The basic question raised by this appeal is whether or not M. A. Hanna Company, the appellee, possesses
The right of appellee to strip mine the coal depends upon the interpretation of a written document dated September 29, 1891, executed by the Mineral Railroad and Mining Company (a predecessor in title to appellee, the lessee of lands in Mount Carmel Township in Northumberland County) and the Mount Carmel and Natalie Railroad Company (a predecessor in title to appellants). Under this document (variously termed a deed, grant, agreement and release) the lessee granted the railroad company a right of way over the surface of its land to “make, construct, maintain and use its said railroad” which extended approximately 5.90 miles from Natalie Junction to Natalie Colliery. The area over which the right of way was granted is shown by two maps attached to the document. The strip of land was not to exceed thirty acres of surface, and to be of a width not over thirty feet on either side of the center line shown on the maps. The lessee’s term was for nine hundred and ninety-nine years, and the rights of the railroad company were for five hundred years from September 29, 1891.
The findings of fact of the chancellor concerning title were approved by the court in banc and are sufficiently-supported by the evidence. The M. A. Hanna Company, appellee, became the successor to all the rights of the Mineral Railroad and Mining Company, the lessee-grantor. The fee title to the surface over which the appellants’ right of way extends is vested in appellee, subject to the grant in the document dated
We need not review the cases on severance of estates in coal lands — the estate in the surface, the estate in the coal and the right of surface support, sometimes referred to as the third estate. These principles are reviewed, in
Appellants’ right of way extends in a general northeasterly direction and crosses at right angles the path of the proposed strip mining, which is approximately three hundred feet wide and through which runs a vein of coal shaped like a Y. The coal is nineteen feet thick at its upper extremity (referred to as the surface outcrop) and thirty feet thick at the vertex of the V, which lies approximately two hundred and fifty feet below the rails of appellants’ road. The overburden from the outcrop to the natural surface of the ground is approximately thirty feet deep, and on top of this is an artificial fill about twenty-two to twenty-four feet in depth. Thus it is- apparent that strip mining will, require removing the earth beneath appellants’ track for a distance of about three hundred feet, to depths ■ varying from fifty to two hundred and fifty
The pertinent excerpts from the document of September 29, 1891, supra, which require interpretation to determine the method of mining permitted are as follows: “PROVIDED HOWEVER, that nothing herein contained shall be held or construed as giving or granting unto the said party of the second part, its successors or assigns, any of the fossil or mineral coal, iron or other ores, or any interest in the same or any other minerals that may be found under the surface of the earth within the said boundaries of the said right of way upon the said strip of hereby granted to the said party of the second part, and it is hereby stipulated and provided that this grant is made expressly subject to the condition that the said party of the first part excepts from this grant and fully and absolutely reserves unto the said party of the first part, its successors and assigns, ... all the said fossil or mineral coal, iron or other ores or minerals that may be found under the surface of the said tracts or parts or tracts of land, or either of them or any part thereof, with the full and free right of digging for, mining and taking away the same, at any time or times, or in any manner or by any method of mining, without let or hinderance of the said party of the second part, its successors or assigns, and without any compensation therefor or liability of any kind or nature vhatever .... And the said party of the first
“And this indenture, further witnesseth that if any time previous to the mining of the said coal and other minerals lying under the said right of way hereby granted,. .. . the said party of the second part shall give reasonable and sufficient notice to the said party of the first part, its successors or assigns, or lessees, . . . that a part or portion of the said, veins or seams of coal lying under the said right of way or surface right hereby granted as aforesaid, will be necessary for the support of the surface of the ground on which the said railroad shall be constructed, as now located and marked upon said maps hereunto attached, the said coal and other minerals, so lying under the right of way, as aforejsaid, shall be perinitted to remain ainmined
“Provided, however, that if the said party of the second part, its successors or assigns, shall fail to pay to the said party of the first part, its successors or assigns, . . . the whole of the said sum, so ascertained, agreed upon or fixed as the value of the said coal or other minerals to be left unmined, for the support of the surface as aforesaid, within thirty days after the said sum or value shall be so agreed upon or determined as aforesaid, that then the said party of the first part, its successors or assigns . . . operating or working the mines in the said premises, or any part hereof, shall be at liberty to proceed to mine and take away all of the said coal and other minerals from the said veins or seams of coal lying under the said right of way or surface right as aforesaid, as fully and absolutely as if the said request to leave the same unmined in the said veins, for the support of the surface as aforesaid, had not been made.” (all italics supplied)
It is clear beyond all question of doubt that under the grant of 1891, supra, appellee retained all coal
In Commonwealth v. Fisher, 364 Pa. 422, 72 A. 2d 568, this Court said, p. 426: “. . . [strip mining] was the earliest known method in Pennsylvania of mining anthracite coal and was originally performed by hand; the invention and use of power shovels for the removal of the overburden was, of course, a later development, but there is no rule of law which would preclude defendant, having the right to mine the coal, from using methods for that purpose made possible by modern machinery and inventions.”
Appellants contend that the document must be interpreted as a whole. With this we agree. The language granting unlimited mining rights “in any manner or by any method” must be read in conjunction with the clauses relating to deep mining. We do not construe this language as nullifying the previous clause. Such later clause commences with the words “Also excepts and reserves”. Such grant is an additional grant and not one in limitation. Should deep mining methods be employed this clause provides for appellee’s permission to use drifts, tunnels, gangways, etc., which might pass under appellants’ right of way. Appellants, through their predecessor, expressly released the grantee from all damages, including that of surface subsidence.
We agree with the learned court below and cannot profitably add to what Judge Fortney said: “The [ap
“[Appellants] urge that if [appellee] was restricted to the acquisition of this coal by deep mining methods it would enable [appellee] to be compensated for its coal and prevent destruction of its tracks and the subsequent hardship. To thus construe the grant would be to
Decree affirmed at cost of appellants.