144 A. 740 | Pa. | 1928
Argued October 4, 1928. The Valley Coal Stone Company, a Pennsylvania corporation, whose name was subsequently changed to the Valley Smokeless Coal Company, entered into an agreement, on February 16, 1907, with the Manufacturers' Water Company, by which it granted not a fee but an easement with "the right and privilege to lay, maintain, operate, repair and remove a pipe line" over its coal land in Cambria County, within limits fixed by metes and bounds, subject to certain specified conditions. The entire line was 2,800 feet in length, of which three-fourths was placed within a tunnel, and this portion was subjected to greater vertical pressure as a result of the superincumbent earth, and therefore required greater protection. For this purpose it was agreed that "the coal company will leave in place and unmined a strip of coal twenty-five feet in width under the entire course defined above for the said pipe line where tunneled for the support of the pipe line." There was, however, retained by the coal company the right to mine "successfully and conveniently" all of the coal on its land, except the 25 foot block beneath the tunnel, specially reserved, and, even as to the retained section, it was permitted to make cross cuts, not more than 18 feet in width, and not less than 100 feet apart. This limitation was made necessary because the line therein would be subjected to increased strain.
"It [was] further agreed that the said water company and its successors [should] not in any manner hinder nor delay any operations and work being carried on at *44 any time by the said Valley Coal Stone Company and that all places and parts weakened and removed [should] be replaced, maintained and kept equally good and substantial at their own proper cost and charges; and also __________ that any damage resulting [from a failure to so do], as well as from breaking of pipe line, flooding of mines and otherwise causing damages, the said water company and its successors [should] be responsible for the replacing of same and the cost and loss required to maintain and make the same good." In case of failure to comply with these conditions all rights were to be forfeited.
In order that the grantee could fulfill its obligation and keep the land, occupied with the pipe line, sufficiently supported, it was also stipulated "that the said water company may have access to the mines of the said party of the first part at any time for the purpose of erecting or constructing such additional supports for said pipe line as it may deem necessary." The contract likewise set forth that the "spirit and intent of the agreement is the granting of the actual needs to the said water company and its successors to lay and maintain said water pipes without damage, loss and hindrance to the Valley Coal Stone Company," and "nothing shall be construed to hinder or obstruct any present improvements, nor any proposed or future improvements desired on the part of the Valley Coal Stone Company and its successors."
The agreement plainly discloses the intention to reserve to the grantor the right to mine the coal on the property owned by it, excepting, however, the strip occupied by the water company, and even there to have the right to undermine and cross cut, but this limitation of use extended only to where the interference was to be at points not less than 100 feet apart for three-fourths of the entire distance. Solid support for 25 feet, where the line was located within the artificial tunnel, was inserted because for such distance the pipe would require *45 greater vertical and lateral support. The same need would not be demanded for the remaining 700 feet, where the line was upon the surface. When the remaining land was mined, the other property of the grantor was to be furnished with the necessary protection so that no loss or damage could be inflicted on it, the water company to provide further guards if required.
It is the duty of the owner of minerals to furnish "surface" support to the one who has the right to the land above (Jones v. Wagner,
Likewise, the surface owner of land is entitled to lateral support of his property, though there is no express reservation of this duty in the conveyance: Pettit v. J. F. R. R. Co.,
In the present case the land was not conveyed to the water company in fee, but there was a grant of an easement or right of way across it (Hendler v. L. V. R. R. Co., supra), and it could be occupied only under the conditions defined in the contract: Piro v. Shipley,
For a number of years after occupation of the right of way, development of the mine did not require a close approach to the strip on which the pipe was constructed, but later the ordinary workings of the coal company made this necessary. Negotiations between the parties concerned, as to the extent of the proposed mining, were entered into, and continued for several years, without reaching a definite plan of procedure, and were finally abandoned. This injunction was then asked to restrain the defendant from further maintaining and operating its pipe line on the right of way without properly supporting it, so as to remove the danger of breakage, and the consequent flooding of the property of the grantor, which it was averred would follow, in the absence of such action, if coal was taken out nearer to the 25 foot strip, as permitted by the agreement, and expressly stipulated for, since the water company had therein contracted not to hinder the coal company in its operations, and, in case any part of the land occupied by the pipe line was weakened, to correct the defect at its own cost, so that no damage would result, and for this purpose was given the power to enter and place additional supports. It was expressly agreed that all places which might become insecure should be replaced, maintained and kept equally good and substantial at its expense, so that no loss or damage should occur to the coal company by reason of its granting a right of way. The bill *48
averred the threatened injury, and an answer, in effect a demurrer, was filed, admitting, for present purposes, the facts set forth, and all inferences which may be reasonably drawn therefrom: Penna. Co. v. Sun Co.,
The rights of the parties are fixed by express grant, their liabilities being determined by the terms of the agreement into which they entered. The easement is to be enjoyed and remain substantially as it was at the time the right accrued, regardless of whether benefit or damage will result to one of the parties from a change: Piro v. Shipley, supra. The fact that the water company will be inconvenienced by the assertion of the right of the coal company, and may be put to further expense in furnishing the additional support, as agreed upon, is no reason for refusing an injunction: Commercial Coal Mining Co. v. Big Bend Coal Mining Co.,
In Unangst's App.,
The appellee admits its right to lateral support is confined to the 25 feet, where solid coal was provided for the furnishing of protection to its line, in so far as the portion tunneled is concerned, but insists that as to the 1/4 or 700 feet beyond there is no such restriction, since, as to this portion, it may require the retention of additional coal in place. The agreement does not expressly provide for the placing of additional supports by the water company, when necessary, on this part of the line, but, as we read the contract, its liability is not limited as contended for by appellee. The attendant circumstances indicate a reason for furnishing greater and more ample protection in the three-fourths first mentioned, where the pipe was underground, because of the pressure resulting from the overlying earth. As to the balance, covering the land where the pipe was on the surface, the parties must have contemplated that even a less width would be required to furnish ample support.
Even if the clause as to the furnishing of "additional supports," to be placed by the grantee, refers only to the tunneled portion, as was urged before us, there is still to be considered the stipulation found in another paragraph of the agreement that "all places and parts weakened" shall be replaced and maintained by the grantee, a provision clearly applying to the portion of line beyond the tunnel, and constructed on the surface for 700 feet. *50
There is no sufficient reason shown why the coal company should not exercise its retained privilege, as now proposed. If it does so, and no protection is provided, as contracted for, it is threatened with great injury, and to restrain this possibility has the right to ask for injunctive relief. The water company has expressly contracted that it would not hinder the coal company in operating its mines, and removing such coal as it saw fit, except under the tunneled portion, and, in case any part of the right of way became weakened, it would do what was necessary to prevent any loss or damage. Upon the performance of this condition, the grantor has the right to insist. The bill of complaint set forth a case for equitable intervention, and the answer, raising preliminary objections, should have been dismissed, and the defendant compelled to answer generally.
The decree of the court below is reversed with a procedendo; costs to be paid by the appellee.