153 Pa. 74 | Pa. | 1893
Opinion by
The appellants own the farm which John Pierce, senior, by the second clause of his will devised to his son John, who was living upon it at the testator’s death and when the will was executed. The appellee owns the coal underlying the home plantation, which he devised to his sons James and William, as tenants in common. It was known to the testator that the lands so devised by him were underlaid with coal. 'JVhen he made his will there was an open mine on the home plantation, but there was none on the farm occupied by John, to whom he gave the free privilege of taking what coal he wanted “ for his own use or plantation off the home plantation.” It is claimed by the appellants that inasmuch as he gave the farm to John, “ to be enjoyed by him, his heirs and assigns forever,” and immediately thereafter in the same clause of the will gave him the coal privilege, the latter must be considered as appurtenant to the land devised and exercisable by the” devisee’s successors in .the title to it. The learned court below, however, regarded this privilege as personal to John and entered a decree enjoining the appellants from exercising it. From this decree an appeal was taken, and the only question raised by it is whether the right given by the will to take coal from the home plantation constituted an easement appurtenant to the land devised to John, or a personal privilege. If the former, the appellants are the parties who are now entitled to the enjoyment of it, and if the latter, it was personal to John and terminated by his death. We think for the reasons so clearly stated by the
The nature and condition of the lands devised and the language of the will in relation to the privilege, clearly justify
Decree affirmed and appeal dismissed at the cost of the appellants.