279 Pa. 226 | Pa. | 1924
Opinion by
In this action, plaintiffs, — who are the surface owners of land underlaid with coal, and who never owned the
The common source of title, both of plaintiffs and defendant, is William Chess who owned both the surface and the coal. After his death, his heirs made partition of the land, which was divided into a number of purparts ; purpart No. 11, being all the coal underlying it, was sold and conveyed to Joseph P. McIntyre, in fee, without any waiver of the right of surface support. Purpart No. 3, consisting entirely of surface and embracing plaintiffs’ twenty acres, was sold and conveyed in the proceeding to G. Y. C. Chess in fee, “Excepting and reserving therefrom and thereout all the coal, with the mining rights and privileges as mentioned and specified in the proceedings in partition hereafter mentioned.” G. Y. C. Chess sold and conveyed the twenty acres of surface to Joseph C. Muzzio, reciting it as being a portion of purpart No. 3 in the partition proceeding. Plaintiffs claim title as devisees of Joseph C. Muzzio and defendant as grantee by mesne conveyances from Joseph P. McIntyre, appellee’s immediate grantor being the Pittsburgh Coal Company.
It appears that substantially all the coal under the twenty-acre tract, except that necessary to support the surface, had been mined out a number of years before the bringing of this suit, and mining operations had been discontinued. In 1913, ten years subsequent to the mining of any coal from under the twenty acres, plaintiffs entered into an agreement with defendant, who was
After defendant had removed the coal, plaintiffs brought this action of trespass against him, averring that they were the owners of the coal which he had removed, as well as of the surface, to recover damages for disturbance of the surface of, their land and treble damages for the coal removed and converted. A recovery was had for the surface damage, but was not permitted for the coal, the trial court holding that plaintiffs had no title thereto.
. Appellants base their claim of-title to the coal upon the proposition that when the owner of coal after mining approximately to exhaustion, ceases to work it, and leaves the mine and his workings therein, such acts imply an end of the estate in the coal and a yielding up thereof to the surface owner. This is at least a novel proposition, particularly where as here title to the coal is held under fee simple deed. It would seem to indicate that, to continue to hold title to the unmined coal, its owner must assert by possession or other physical means his purpose to mine out the rest of it which he would have the right to do: Berkey v. Berwind-White Coal Mining Co., 220 Pa. 65; Streng v. Buck Run Coal Co., 241 Pa. 560. This proposition was answered by Mr. Justice Dean in his usual sententious phrase in Huss v. Jacobs, 210 Pa. 145, 161, when he said: “To preserve such a title the law does not require physical possession by the owner, that he should live in a coal mine.” The
Appellants would invoke the rule that a tenant cannot deny his landlord’s title, arguing that it prevents defendant from challenging theirs, maintaining that the agreement for the right-of-way between them and defendant created a tenancy, because the right to use the way is limited by the agreement to a period of twenty years. The answer must be that the agreement is what it purports to be, the grant of a right-of-way for the consideration of a lump sum paid. The relation it established between the parties bears no similitude to that of landlord and tenant.
The judgment is affirmed.