236 Pa. 350 | Pa. | 1912
Opinion by
The questions involved in this appeal, as stated by the defendant, the appellant here, are (a) whether the lease made to Bennett in 1821, the operative words being “demise, set and to farm let,” was a lease of the surface only, to be used for agricultural purposes merely, or a lease of the entire solum without impeachment of waste, and (b) whether the plaintiff can restrain the use of the underground passageways, made by appellant in mining the coal, for the removal of coal from other lands, the tenant in possession not objecting and no harm being done to the reversion by such use.
The learned trial judge filed an exhaustive opinion and answered the numerous points of the parties which raised all the questions of fact and law in the case. Certain exceptions were filed by the defendant which were overruled by the court in banc, and an injunction was granted as prayed for in the bill. In disposing of the exceptions, the learned court said, inter alia: “As a result of the trial on the merits, the trial judge found against the defendant on every point in the controversy. The defendant has filed exceptions which do not controvert the correctness of the court’s finding that (1) the plaintiff’s title to the coal underlying this land is good and the defendant has no. title; and (2) the mining of the coal by the defendant was unlawful and a trespass. Having accepted defeat on the main controversy, the defendant’s exceptions now raise only two incidental questions: (1) The bill should be dismissed because the persons claiming to hold the offices of trustees for the proprietors are not entitled to that office, and therefore had no authority to cause this bill to be filed. (2) The court erred in continuing the injunction to restrain the use of the underground passages.”
The legal effect of the Bennett lease was determined by the trial judge in his opinion and answers to the several points. He held that the lease was for agricultural purposes only, and conferred no authority on the lessee
In the court below, the appellant company tried the case on the theory that the Bennett lease was a conveyance in fee of the premises. It asked the court to find as a matter of law that “the intention of the parties was to pass the whole estate, mineral and surface,” which was refused, but the answer of the court is not excepted to nor assigned for error. On the other hand, the trial judge found as a matter of law, in answer to plaintiff’s request, that the mining of the coal by the defendant with the consent of the plaintiff’s tenant and payment of royalties therefor to the tenant constituted a waste
It may, however, be suggested in passing that in a lease for a term of years, where not otherwise provided in the instrument, we have no doubt the tenant was in 1821, as he is now, impeachable for waste. The several remedial statutes on the subject, enacted since 1821, do not define waste nor confer any rights, but simply provide a remedy for what is recognized as a wrongful act and a violation of existing rights. The statutes of Marlborough and Gloucester seem to have been regarded in the same light. Lord Coke says: “Neither this act (Gloucester) nor the statute of Marlbridge doth create new kind of wastes, but do give new remedies for old wastes; and what is waste, and what not, must be determined by the common law”: 2 Inst. 300-1. That waste by a tenant for life or years was an actionable injury to the remainderman or reversioner has been assumed in numerous cases in this court and the lower courts, beginning with the earliest reported decisions. We have held that the statutes allowing the writ of estrepement are simply declaratory of the common law authority of the courts, and that they were passed because the courts did not exercise their authority by injunction to prevent waste as freely as they should have done: Byrne v. Boyle, 37 Pa. 260, 262. Griffin v. Fellows, 81* Pa. 1.14, was an action of ejectment brought by one claiming under the trustees of Providence, another of the seventeen certified townships of Luzerne county. The defendant claimed under the original lessee whose lease, dated in 1796, was very similar to the one under which the defendant here claims, but in the habendum clause contained the additional words: “with every privilege
The other and only question properly determinable here, the right of the appellant to use the passageways through the coal, requires but brief consideration. We are not impressed with the argument of the appellant
The decree is affirmed.