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COMMONWEALTH v. FISHER (04/10/50)

April 10, 1950

COMMONWEALTH
v.
FISHER, APPELLANT



Appeal, No. 90, Jan. T., 1950, from decree of Court of Common Pleas of Lycoming County, March T., 1949, in Equity, No. 1, in case of Commonwealth of Pennsylvania v. Donald E. Fisher. Decree reversed.

COUNSEL

Richard Henry Klein, with him Marshall R. Anspach, for appellant.

John C. Youngman, Special Counsel, with him Candor, Youngman & Gibson, T. McKeen Chidsey, Attorney General, and H. Albert Lehrman, Deputy Attorney General, for appellee.

Before Maxey, C.j., Drew, Linn, Stern, Patterson, Stearne and Jones, JJ.

Author: Stern

[ 364 Pa. Page 424]

OPINION BY MR. JUSTICE HORACE STERN

The adjudication of this controversy depends on the proper interpretation of the language reserving mineral rights in a deed of conveyance of a tract of land from William Rawle et al. to Jacob S. Young et al. dated August 28, 1855. The deed in question contained the following provisions: "... the said parties of the first part hereto [the grantors] do hereby reserve to themselves their heirs executors administrators and assigns forever the full entire complete and exclusive ownership and right as though the present conveyance had not been made to all metals ores minerals coal mine-banks and deposits of ores minerals metals or coal which are or may be in or upon or which may at any time be discovered in or upon any part of the hereinbefore bargained and sold land and premises. And the said parties of the first part hereto do hereby reserve forever the full free absolute and exclusive right and authority for themselves their heirs executors administrators or assigns personally or by their agents workmen or servants at all time or times whenever it may suit their or any of their convenience to enter into and upon and pass over any part or parts of the above described premises and to explore search for and excavate any and every kind of ore mineral metal or coal and to dig excavate or penetrate any part of the said premises and at all times to have free ingress and egress for themselves or their heirs executors administrators or assigns or their workmen or persons employed by them or either of them with or without horses teams oxen mules carts sleds or wagons to dig mine raise and take remove and carry away any any every kind of ore mineral metal or coal which may be found or discovered in or upon any part or parts of the hereby granted bargained and sold land provided always that such digging explorations or searches shall

[ 364 Pa. Page 425]

    be conducted with as little injury or damage to the said Jacob S. Young Jacob P. Findlay and William R. Young [the grantees] their heirs or assigns as shall be practicable consistently with the success of the same and the said Jacob S. Young, Jacob P. Findlay and William R. Young do hereby for themselves their heirs executors administrators and assigns covenant grant promise and agree to and with the said parties of the first part hereto their heirs executors administrators and assigns that neither of them shall and will at any time or times or in any manner hinder impede delay or in anywise obstruct the full and free exercise of all any and every the rights and privileges herein reserved or conditioned and that neither of them shall or will at any time or times or in any manner interfere with the property and ownership hereby reserved to the said parties of the first part hereto of all and every the mines metals minerals coal ore or ore-banks in or upon the above described tracts or parcels of land by these presents bargained and sold to the said Jacob S. Young Jacob P. Findlay and William R. Young their heirs and assigns."

The title of William Rawle et al., grantors, to the reservation of the mineral rights descended through mesne conveyances to Donald E. Fisher, the present defendant; the title of Jacob S. Young et al., grantees, to the surface of the land descended through mesne conveyances to the Commonwealth of Pennsylvania, the present plaintiff. The tract in question was purchased by the Commonwealth with moneys of the Game Commission License Fund. It is mountain land which has been timbered over; it is held by the Commonwealth as a game habitat; it contains no buildings, railroad lines, public highways, or improvements of any kind. It is largely underlain with bituminous coal which, for the past fifteen years, defendant has been deep mining, but which he has now started to strip mine in order to excavate coal which can be removed in no other manner.

[ 364 Pa. Page 426]

The area of coal thus far uncovered is approximately 2800 feet long and from 38 to 70 feet wide; the vein is about 42 inches thick; the overburden removed averages in depth from 12 to 20 feet. In compliance with the Bituminous Coal Open Pit Mining Conservation Act of 1945 defendant has filed a bond and has contracted for the back filling of the stripping operation.

Plaintiff filed the present bill in equity to restrain defendant from further strip mining on the tract. It contends that defendant has no right to practice that method of digging because the use of power machinery to remove the overburden was not a customary method of mining bituminous coal in 1855 when the mineral rights were separated from the title to the surface, and also because plaintiff is entitled by law to surface support. Defendant filed an answer to the bill, but there is no dispute as to the facts. The court below granted the injunction prayed for, and defendant appeals.

Neither of the grounds on which plaintiff relies can be sustained. Defendant, as assignee of the grantors under the deed of 1855, acquired the "full, entire, complete and exclusive ownership" of the coal "in or upon any part of" the land with the right to "dig, excavate or penetrate any part of the said premises". There is no restriction limiting that right nor any provision as to the method of severing the coal. What was said in Richardson v. Clements, 89 Pa. 503, 506, is applicable here, viz.: "The language used indicates no intention to deny the use of such improved process as science may discover or mechanical ingenuity invent...." Plaintiff admits that the coal which defendant seeks to obtain by stripping operations cannot be recovered by any other process. True it is that strip mining was not used in 1855 in the case of bituminous deposits although it was the earliest known method in Pennsylvania of mining anthracite coal and was originally performed by hand; the invention and use of power shovels for the removal

[ 364 Pa. Page 427]

    of the overburden was, of course, a later development, but there is no rule of law which would preclude defendant, having the right to mine the coal, from using methods for that purpose made possible by modern machinery and inventions. It was said in Oberly v. H. C. Frick Coke Co., 262 Pa. 83, 87, 104 A. 864, 865: "The right to work the mine involves the right to penetrate the surface of the soil for the minerals, to remove them in the manner most advantageous to the mine owner, and to use such means and processes in mining and removing them as may be necessary in the light of modern improvements in the arts and sciences." We said in Taylor v. Heffner 359 Pa. 157, 163, 58 A.2d 450, 453: "It cannot be said that because motor vehicles were rarely used at the creation of the right of way that it was within the contemplation of the parties not to permit the dominant estate to use improved means of travel. Where, as here, the grant of the easement is unrestricted, the grantee is given such rights as are necessary for the reasonable and proper enjoyment of the thing granted." In Dowgiel v. Reid, 359 Pa. 448, 59 A.2d 115, an easement of a "private road or cartway" was created in 1835; the present owners of the easement proposed to erect poles and to string copper wire along the road for the purpose of providing their farm with electrical facilities. We held that they had the right so to do even though, when the easement was granted, the only need for the road was as a pathway over which pedestrians, horses and vehicles could travel, and telephones, electric lights and other ...


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