60 Pa. Super. 462 | Pa. Super. Ct. | 1915
Opinion by
Was there an estate in land which, under the laws of
The appellant is the owner of a lot of ground situate in Scranton, being lot No. 4, block 31, regularly assessed for taxes. He acquired his title through sundry conveyances and, in so far as the question here involved is concerned, it originated with the deed of the Lackawanna Iron and Coal Company. This deed contained the following: “Excepting and reserving, however, unto the said company, their successors and assigns, all coal and minerals beneath the surface of and belonging to said lot and also reserving to said company, its successors and assigns, the sole right and privilege to make, construct and use any subterranean passage or gangway under said lot that may be required by said company, its successors and assigns, to reach and mine any coal or other minerals belonging or appertaining to other lands or premises, but without the right to said company to mine and remove any coal or other minerals under said lot, except for the purpose of making and using said subterranean passage or gangway, but not thereby opening any mine or airshaft or establishing any fixture upon the surface of said lot.” In 1907 and 1908 the assessors separately assessed to “owner unknown” the coal under this lot, and county taxes were levied thereon. This bill in equity was brought to enjoin the county treasurer from selling the coal under appellant’s lot and asked that the assessment be declared null and void.
As between the grantor and grantee, should there be an effort on the part of the grantor to mine the coal contrary to the language of this conveyance, full force and effect may be given to the words quoted above. The contest before us is not between the grantor and grantee, but arises by virtue of the right in the Commonwealth to demand that all property, designated by law, respond in its just proportion to the tax burden. If such property be in existence, in an estate presently taxable, it is the duty of the assessor to return it for taxation. There is
It is apparent, without entering into an elaborate discussion of the effect of the words “without the right of said company to mine and remove any coal or any minerals under said lot,” that the grantor reserved to himself such an estate and such a right to a certain use: in the property as would be the subject of a future conveyance, and such a conveyance would be of. real property. The words quoted as used in the reservation or exception do not destroy the quantity of the estate therein excepted or reserved or the time of enjoyment of the freehold left in the grantor, though it might have a tendency to limit or restrict the use of the fee- therein reserved. This we do not decide. Such estate , was a proper subject of taxation, and the description of the property employed in assessment was sufficient to cover just such an estate left in the grantor.
We do not here determine the effect of this covenant, whether it is a covenant for surface support running with the land, inuring to the benefit of the grantee, and would not be discharged by judicial sale, or whether it
The assignments of error are overruled and the decree is affirmed at the cost of the appellant.