Wilkes-Barre Township School District v. Corgan
170 A.2d 97
Pa.
1961
Check Treatment

*1 in Q. A. I did. Wеre all morning? concerned at you as to its use? I proper A. No put Mr. a wasn’t; Nehrig tub over protected it and what I was suffi- it, thought cient protection from the the house. wooden part Q. Then you didn’t back investigate? go night No I A. didn’t.” opinion

Under all of these circumstances we are have their whatever relationship Nehrig may base- in the been, defendants made the situation their the basement ment own. Had Wilt not entered at all attention to the done had no or, having paid so, fall condition of the rise or the case would salamander, servant on the point of whether was single Nehrig the gen- or an contractor. But Wilt was independent judgment eral contractor and elected to use his own he “I thought of the heater: safety tub] [the part from .the wooden protection sufficient house.” his whether for the was accordingly jury say

It once having whether or bad and good judgment duty his it was salamander safety evаluated so to do again. de venire facias is awith reversed,

The judgment novo. dissents. Bell

Mr. Justice Township District, School Wilkes-Barre Corgan. Appellant, v.

384: *2 Argued January Bell, 1961. Before C. J., Jones, Bok JJ. Musmanno, Jones, Cohen, Eagen,

rear- refused 1961. gument May 18, ‍‌​​​‌​‌​‌‌​‌​‌‌‌‌​​‌‌​‌‌‌‌​‌‌​‌‌‌‌​​​​​‌‌​​​‌​​‌‍Mm for 0. Thomas Moore, Cappellini,

Gifford appellant.

Michael 3. for appellee. Sheridan, Opinion 1961: by March 23, Mr. Justice Eagen, School Township The Wilkes-Barre the appellant, re- John B. Corgan, sued the District, defendant, land of to the surface cоver for intentional damage thereon from and excavations resulting trespass deep com- objections the defendant. by Preliminary by in were sustained plaint the nature of a demurrer defend- the for the court entered judgment and below, ant. The plaintiff appeals. well-pleaded,

For the appeal of this purposes every de- inference fairly relevant and material, fact, every ducible as true: accepted Byers therеfrom must be Ward, 84 A. 2d 307 416, and On from the January Lehigh deed Wilkes- Wilkes-Barre Coal the the Company, plaintiff, owner” Barre School became “the Township District, the “surface land right of and of soil” of certain in accepted Luzerne Thе deed that it County. discloses coal reserved to the in and the ownership grantor, and other minerals the in, upon under and land, same. the removing of privilege right

also the drive make and given The grantor for under the surface and passageways tunnels inter also stipulated, of The deed mining. purpose incur event, in any would not, alia, or the land of the surface injury for liability any the mining reason of improvements thereon, by not guaran- of the coal or and did rеmoval minerals, or support. tee lateral vertical a B. Corgan, John April defendant, In Coal in title to the Wilkes-Barre Lehigh successor knowledge or permission without Company, District, School Township Wilkes-Barre plaintiff, onto heavy machinery, consisting draglines, moved digging operations of the land and began surface the earth a the surface up and soil. As result, a hole or a disheveled and soil was removed, leaving These depth. one hundred аnd feet fifty crevice the lower court facts constitute a cause of action and the defend- erred in for judgment summarily entering ant. inter basic issue revolves proper

The around the of the terms In con pretation invоlved. a deed or certain struing princi contract, general be ples must mind. is the intention kept First, at the time thereto entering intention is to such from a governs, gathered *4 of the entire contract: P. M. & Co. v. reading Stephano 200 331 Pa. A. 605 Maxwell v. 278, (1938); Bros., Pa. 58 A. 355 359 2d In 94, (1948). addition, Saylor, “ intеrpretation, receive a reasonable 'Contracts must to the intention of the at according parties the time if of that intention ‍‌​​​‌​‌​‌‌​‌​‌‌‌‌​​‌‌​‌‌‌‌​‌‌​‌‌‌‌​​​​​‌‌​​​‌​​‌‍executing can be ascertained them, language. from their Where lan (Citing cases). thе a contract is of or am guage contradictory, obscure, its or is so meaning where that biguous, doubtful, it two is one wMch susceptible constructions,

387 men as and such prudent makes it fair, customary, in makes the other while would naturally execute, would men reasonable as or such equitable, unusual, which interpretation not be to enter likely into, must agreement makes a rational and/ probable unrea make it If one construction preferred.1 would par both justice do while another would sonable, & Brown Co. adopted’ ”: A. Percy will be ties, latter It v. 54 A. 2d 35 is (1947). 357 Pa. 271, Raub, 287, document also a written beyond controversy, against must be construed most strongly Pa. 393 it: Cities v. Service Oil Co. drafting Haller, 142 A. fixed 2d 163 It is 26, (1958). equally well еxception law a reservation or doubtful deed will be construed most strongly against and in favor grantee: Bundy Myers, 372 Pa. A. 2d W. Co. v. (1953); Sheffield Elk T. This 74 Atl. 742 Co., (1909). ex rule force to or applies with a reservation special ception to a whiсh amounts down of the cutting grant: Klaer v. 86 Pa. 529 Ridgway,

The deed in issue aliened, “granted, bargained, sold, enfeoffed, conveyed confirmed .” to released, . . “the surface and grantee soil” of the land involved. These words were effective in passing the entire transmitting title the “surface.” Act See, L. May 28, 1715, Sm. PS as amend 94, §6, §8, ed. Other jurisdictions also so hold: Crookshanks v. W. Va. 92 S.E. Ransbarger, Mc (1917); Co. v. Quiddy Printing 23 Tenn. Hirsig, App. 434, 134 S.W. 2d 197 (1939). The term when “surface,” used in is if law, seldom, limited to ever, geo mere metrical supеrficies. is Where, ‍‌​​​‌​‌​‌‌​‌​‌‌‌‌​​‌‌​‌‌‌‌​‌‌​‌‌‌‌​​​​​‌‌​​​‌​​‌‍however, surface granted one and the coal to underlying another, “surface” includes whatever or soil which earth, land

1 Emphasis oura. *5 superincumbent upon Clinch coal: the

lie above and is Corp. S.E. Compton, 148 Va. 437, Coal v. field (1927); Stonegap Colliery Co. Hamilton, (1916). the S.E. 305 Therefore, Va. possession сonveyed complete in and title and upon title resting the coal. But, to the soil earth right ,to remove it remained the coal with are grantor. facts and' to .These was reserved the language clearly by As to deed. estаblished .the' employed the coal, the removal of method be again. something con that is did the What they regard this tract in to this? did intend How accomplished? contemplate they that, be Did would by mining rights, grantor was of the stated virtue by oсcupy inten mine coal entitled surface, ' overlying destroying tionally removing and the soil question pivotal is not it? This and the answer is the spelled specifically out in is there lan the deed. Nor implied. guage may To con from be same which rights extraordinary reserved clude that such were necessarily one must into the read intended, just construction an intent there. Such that is not principle every violate have herein- would law we construing It before enunсiated. would amount stretching grantor, the reservation in favor of the adding substantially thereto. It an un be would inequitable interpretation; grossly reasonable one likely meaning of a nature men would not bar well inconsistent, gain grant fоr. It with the it would interpretation ap self. the standard of. to be Further, plied meaning is a rea that would be attached opera sonably intelligent acquainted person, with all prior knowing usages, all the circumstances tive contemporaneous making to and the con §230; tract: Contracts Dev. Restatement, Clearfield Corp. v. Devonian 122 A. 2d 718 Co., carried case The excavations out this *6 mining. strip undoubtedly, those incident 'to were, operations Such never heard of in the hard coal were reаsonably years. anyone con- field until recent Can year exe- tend that in the when this deed was 1893, contemplated parties cuted and that the or delivered, strip that intended the surface of the land would be ‘mined? We do not bеlieve this be so. parties manifestly

What the intended was coal to be was removed the method then known, accepted commonplace. and as usual was This mining. say, vertical or shaft tunnel, Needless to n consequenсes strip vastly mining nature and are different: Tokas v. J. J. Arnold 613, 122 Va.W. Co., (1940). 11 S.E. 2d 759 If the defendant asserts what clearly the deed should so: intended, have said Commonwealth v. 72 A. 568 Fisher, 2d 422, (1950) Evans Fuel Leyda, ; P. Co. v. 77 Col. 236 356, (1925). rights any 1023 If such were intended private every public building then (сid:127)reserved, in region2 the- anthracite -coal could be demolished, ravaged, surface and the entire area ruin levelled in ' Surely, desolation. no court of con law should writing strue a to' effectuate consequences, such' un less the beyond terms thereof are unmistakable and doubt. presented

This issue is akin to that in Rochez Bros., Inc. v. 374 (1953). Pa. Duricka, 97 A. 2d 262, 825 Therein this Court held containing that a deed reser vations of a‘ including similar liability- nature, saving damage clause, event of to the surface resulting from the applied only removal of the coal, or mining, shaft, vertical because-the demon strated that such parties was the intent of the contract. The deed surrounding circumstances in 2 Nearly every deed in tltis area involves a severance coal right, arid containing surface provisions similar to deed under consideration.

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this are demonstrative vertical case equally thinking were and that is what ing, only, su for. intended and contracted That Rochez, of, in tract land in a area farming larger pra, area of land it is a small this whereas ‍‌​​​‌​‌​‌‌​‌​‌‌‌‌​​‌‌​‌‌‌‌​‌‌​‌‌‌‌​​​​​‌‌​​​‌​​‌‍case, volved, in our against not militate in an inhabited does area, more If contract. terpretation anything, Barker See also, our conclusion. supports strongly v. 534 Oresta v. P. (1923); Col. Mintz, (1952); Romano Va. 73 S.E. 2d 622 W. Bros., West Coal Co. Virginia-Pittsburgh Strong, case In the latter W. Va. S.E. 2d of full the deed of severance reserved where *7 and over еgress and free and beneath ingress in, on, ship the land for the purpose excavating, mining, reserva held that this and was ping removing coal, remove tion not to and destroy did include right the surface the coal. overlying Pa.

The cаses of Commonwealth v. Fisher, A. 2d 568 and v. Fitzmarti (1950) Commonwealth n,3 distin Pa. 102 A. 2d 893 are (1954), In the former the deed reserved guishable. specifically exclusive “the and absolute grantor full, free, to penetrate and ... excavate or right authority dig, No such re part premises”. right said was any in the involved herein. In served Commonwealth un the land concerned a tract of was Fitzmartin, ap mountainous terrain hilly, rocky, improved, acquired 3471 acres. The land was proximately by at a nominal an for the Commonwealth as area price life. and of wild conservation, protection propagation “ to ex grantor The deed reserved ‘the specifically re egress and perpetual clusive ingress, lands into and the said search upon gress examine, manufacture said prepare mine, coal, gas for, oil, by language equivocal Even this case considered three of the dissented. seven Justices who and othеr minerals for ... and con- build market, struct bore gangways, air holes, shafts, drifts, shafts, un- upon roads and drains headings, in, through, der said surface; pump water from the mines run same on said to locate and erect such surface; drifts, fans, shafts, engines, machinery, buildings, and other as necessary curtillage, structures, mines . for the . of the may working . necessary sufficient works thereto . to use appurtenant . .; ” con- portions and convenient of the surface’ for the struction of thereon liability “without buildings any for reserva- whatsoever to said lands.” The damages tions in the deed 'before us are dissimilar and clearly not so sur- as to the use of the nearly all-encompassing face of the land and its by successors titlе.

The court judgment lower is reversed with a procedendo.

Dissenting Opinion by Benjamin Mb. Justice B. Jones :

In issue is my opinion, present determined our Commonwealth v. ruling Fitzmartin, I A. 2d 893. believe that decision cor *8 and therefore I rect dissent. Bell joins opinion.

Mr. Justice this dissenting Attorney Alpern, Girard ‍‌​​​‌​‌​‌‌​‌​‌‌‌‌​​‌‌​‌‌‌‌​‌‌​‌‌‌‌​​​​​‌‌​​​‌​​‌‍Trust General, Exchange Appellant. Corn Bank,