159 Pa. 235 | Pa. | 1893
Opinion by
Mrs. Lewis and Miss Lewis by their deed conveyed to Sutton all the merchantable coal contained in a certain stratum opened, operated and lying beneath the tract specified, together with the free and uninterrupted right of way into, upon and under said land at such points and in such manner as may be proper or necessary for the purpose of taking and carrying away the coal, and also the tracks and tramways in the pit or pits opened in the seam. By deed Sutton granted and conveyed his right and title to the coal to Weinmann of whom appellant (defendant below) Avas lessee. Upon the surface of appellee’s tract there Avas opened a pit out of which the coal was taken. The coal underlying the adjoining tract owned by Weinmann was also leased by him to the same lessee. He claimed the right to take through this pit the coal underlying such adjoining land, to deposit the refuse at its mouth and to carry the coal so mined to a public road over a way or road used by the former owner when he united in himself the title to the appellee’s tract and to that adjoining, and held them as one tract. Appellee (plaintiff below) denied the right to so use the pit which was upon his tract, the surface of which he had bought from Mrs. and Miss Lewis, subject to the grant to Sutton, and because of such use brought suit and recovered in the court below.
Appellant’s right to use the pit is by the terms of the grant confined and restricted to the coal lying beneath the tract in question. Its words are clear and explicit, to wit: “ All the merchantable coal lying and being,” etc., is granted “ with the free and uninterrupted right of way,” “for the purpose of digging, mining and carrying away the said coal.” Under these terms appellant had no right to take through that pit coal from beneath the adjoining tract, except such as may possibly have been required as a part of the mining operation for the purpose of opening up an air-shaft, and necessarily incident to the mining under appellee’s tract. If therefore appellant mined coal from beneath the adjoining tract and carried it through the pit in question he became liable
Judgment affirmed.