201 Pa. 318 | Pa. | 1902
Opinion by
The plaintiff, the owner of a farm of 152 acres of land in South Fayette township, Allegheny county, on March 16, 1883, joined by her husband, conveyed all the coal thereunder, with certain mining rights on the surface to William P. Rend, and through him the property described in the deed passed in September, 1899, to the other two defendants. At the date of the conveyance to Rend, he was a coal operator on a large scale, on about 4,000 acres of land surrounding or abutting on the Potter tract. Rend during his occupancy under the deed, caused a mining or lifting shaft to be sunk, and a mine to be opened under the land. He located the shaft at a point by him deemed suitable for mining purposes on this tract and those adjoining which he had before that owned. During his occupancy, a period of about seventeen years, he mined out and removed all the coal on the Potter tract except about fifteen acres. In carrying on his mining operations during that time, he erected contiguous to the shaft, numerous buildings and improvements, consisting of stables for mules, sheds and coal tipples, railroad tracks, water tanks, electric plants with boilers, engines and dynamos, and other equipment, not only for the mining of coal under this tract, but under his other land adjoining it. These buildings and improvements practically cover from seven to twenty acres, and exclude plaintiff from the occupancy of about that quantity of land. During his operations Rend dumped on this twenty acres large quantities of gob and refuse, coming, not only from his mine under the Potter tract, but also, from his other mines adjoining it from which there was access to the shaft. The defendants claim the right to remove all the buildings, machinery and other improvements put by Rend on the surface during bis mining operations. They had already, at the date of filing this bill, removed part and it is averred that it is their intention to remove all. The plaintiff, filed this bill for an injunction to restrain them from such removal; also,
The court below, adopted defendants’ interpretation and dismissed the bill at plaintiff’s costs. She now brings this appeal in which she assigns for error the interpretation of the deed and the opinion and decree of the court below.
The first question to be answered is, what passed to Rend. by the deed ? After granting all the coal underneath the land, it makes this further grant of rights and privileges : “ Together with the free and uninterrupted right into said coal and under said land, for the purpose of digging, mining and carrying away said coal, together with the privilege of mining and removing through any entries made in said coal, other coal belonging or which may hereafter belong to the said party of the second part, his heirs and assigns; and the said party of the second part, his heirs and assigns, shall have the right to mine and take away the coal underlying said land, free, clear and discharged of all liability for any damages that may result or happen to said tract of land, the surface or springs thereof, or any improvements thereon by reason of mining or taking away said coal, and also enter upon the said surface of said land for the purpose of taking out and placing on the same any material that may be necessary in operating the coal underlying said land, with the right to sink a shaft for the purpose of taking out the coal underlying said land, at any point the said party of the second part, his heirs and assigns, may-select, with the privilege to the party of the second part to buy at mouth of said shaft, three acres of surface, at the rate of seventy-five dollars per acre, and also with the right to make openings in the surface, for ventilation or drainage, and with the right to deposit on the surface drainings taken out in sinking said shaft, or air or water openings necessary in taking out the coal underlying said tract of land.”
As we have said, his exclusion of the plaintiff from the enjoyment of the surface beyond the three acres, was, if she had chosen so to regard it, a trespass, for which she had an action at law, and equity would have restrained continuing or further trespass; but for twelve or fifteen years she stood by and made no complaint; she saw her grantee occupy the land with valuable and costly improvements without objection and now, invokes the strong arm of equity to prevent the removal of any part of them. Under the law, he has the right to remove fixtures put there for a specific and temporary purpose; by her conduct she allowed them to be placed on the land without denying his right or asserting hers. Equity will not now restrain their removal. Whether he is answerable for use and occupation of her land beyond the three acres; or whether by
But, although defendant for years without right, yet without objection on her part, used the sur face,-by filing this bill she did then object, therefore, further trespass must be stopped by injunction; it can go no further.
We have thus discussed and passed on the main questions, and those on which the issue turns. The prolonged discussion in the paper-books of the law governing the relation of landlord and tenant and the implied right of the tenant to remove trade fixtures has but little application. Plaintiff was a grantor of land by absolute deed; Rend was the grantee of the land with certain privileges on other land which did not pass by the deed; the privileges were not for a term or at will but temporarily for a specific purpose plainly expressed. There was nothing to be implied outside that expressed.
The decree of the court below dismissing the bill is reversed and it is ordered that the bill be reinstated; further, that injunction issue restraining the defendants or any or either of them from depositing any gob or other excavated material from the mines, outside the three acres for which the privilege of purchase is stipulated in the deed. Further it is ordered that appellees pay the costs.