Appeals, Nos. 66 and 67, Jan. T., 1951, from judgment of Court of Common Pleas of Lackawanna County, March T., 1949, No. 131, in case of John R. London, Attorney-in-Fact for Robert London et al. and John R. London in his own right v. J. B. Kingsley. Judgment affirmed.
Paul R. Selecky, with him Leo G. Knoll, for appellants.
J. Julius Levy, with him M. J. Martin and James W. Scanlon for appellee.
Before Stern, Stearne, Jones, Bell, Ladner and Chidsey, JJ.
OPINION BY MR. JUSTICE BELL
Plaintiffs, heirs of Isaac London, brought an action of ejectment to establish their title to 132 acres of coal lands in Lackawanna County. Defendant is the heir of Burr Kenyon. Plaintiffs aver that Isaac London, on October 1, 1828, leased certain coal land, approximately 230 acres, to Thomas Meredith for a period of 100 years, and attached a copy of the lease. The lease gave Meredith the right to find, dig, remove and sell coal. The complaint also averred that Isaac London, who was the common source of title to both the surface and the underlying coal, severed the title to the coal from the title to the surface; that the possibility of reverter in the coal lands was never released to Meredith ; and that by operation of law, title to the coal lands which remained after October 1, 1928, was reversed in the heirs of Isaac London surviving him on October 1, 1928.
Plaintiffs further averred that by deed dated February 14, 1840, Isaac London conveyed the surface of the above mentioned premises to Burr Kenyon but the conveyance specifically excepted the coal granted to Meredith. A copy of the deed to Kenyon was attached to and made part of the complaint. This deed is the touchstone of the case and will hereinafter be referred to at length.
After the expiration of the 100 year lease, large quantities of coal still remained unmined by the Hillside Coal and Iron Company, which was the lessee of Thomas Meredith. Plaintiffs alleged that defendant unlawfully entered upon said premises after October 1,
Plaintiffs' first contention is that London had severed his land into two parcels -- surface and coal; that he had leased or sold the coal to Meredith for 100 years; that he had nothing left except the surface, and that it was the surface land which he conveyed to Kenyon in 1840, together with the mines and minerals, and the reversions and remainders appertaining to the surface ; and there was no conveyance nor even an intention or attempt to convey London's possibility of reverter in the coal.
It should be noted at the outset that London did not specifically divide his land into surface and coal; nor did he specifically convey, in the deed to Kenyon, merely the surface ; nor indeed did he ever specifically reserve or specifically convey a possibility of reverter in the coal land. London conveyed 122 acres of land situate and bounded as described in the deed, excepting and reserving thereout the coal to Meredith. In 1840 London owned not only the surface, but also a reversionary interest in whatever coal remained after the expiration of the 100 year lease to Meredith. Since the plaintiffs contend that it was never the intention of London in and by the deed to Meredith to consider or convey the possibility of reverter in the coal land, it may not be amiss to ask what mines and minerals London was referring to on the surface land which plaintiffs allege he was solely conveying; and what were the reversions and remainders which plaintiffs allege London was reserving on the surface land only ; and what is the meaning of the broad language of the deed "and also all the estate, right, title, interest,... claim and demand whatsoever ...