Appeals, Nos. 130 and 145, Jan. T., 1951 from judgments of Court of Common Pleas of Clearfield County, March T., 1948, No. 141 and August T., 1949, No. 38, in case of Americo Betta v. Leroy L. Smith et ux., Exrs. under will of Leroy W. Smith, deceased et al. Judgments affirmed.
Walter M. Swoope, with him A. R. Chase, F. Cortez Bell Jr., and Chase, Swoope and Bell for appellants.
B. R. Coppolo, with him Alvin B. Coppolo, Driscoll, Gregory & Coppolo, Dan Pa. Arnold, and Chaplin & Arnold, for appellee.
Before Drew, C.j., Stern, Stearne, Jones, Bell, Ladner nd Chidsey, JJ.
OPINION BY MR. JUSTICE LADNER
This is an appeal from the refusal of the court below to enter judgment n.o.v.
L. W. Smith was the fee simple owner of 1100 acres of land in Jay Township, Elk County, known as Warrant No. 4895. He leased the coal underneath to the plaintiff at a royalty of ten cents a ton. Contiguous to Smith's warrant was land of the Commonwealth of Pennsylvania, known as Warrant No. 5283. Plaintiff drove his heading beyond Smith's land into the land of the Commonwealth, having been told by Smith that he, plaintiff, might remove the coal beneath the Commonwealth's warrant as he, Smith, had made arrangements with the state to do so. Relying upon Smith's statement, he removed 110,700 tons of coal from the Commonwealth's land from March 2, 1942, until Smith
died on January 27, 1947, and paid Smith in royalties $11,070.00.
In 1947 the Commonwealth's Department of Forests and Waters, learning of the removal of its coal, compelled plaintiff to pay $21,481.80 as damages for the coal removed from its warrant. Plaintiff then brought suit against Smith's Estate to recover the damages paid to the Commonwealth and in the alternative to recover back the royalties $11,070.00 paid Smith.
Plaintiff, by separate suit, also sued Winifred Smith, Devisee, and widow of Smith, for royalties paid her on her demand after Smith's death which amounted to $2,265.10. By agreement both suits were tried together and the jury returned a verdict against Smith's Estate for $10,680.80 and against Winifred Smith for $2,288.00. These were the exact amounts which counsel for the parties agreed had been paid by the plaintiff to decedent Smith and to Winifred Smith. The defendants filed motions for new trial and for judgment n.o.v. The motions for new trial were subsequently withdrawn. The court below refused to set aside the verdicts non obstante veredicto and entered judgment on the verdicts from which we have this appeal.
The complaint in this case pleaded two alternative causes of action: The first was in the nature of deceit and charged that the defendants' decedent had falsely and fraudulently misrepresented that he had the right to remove the coal in the Commonwealth's land and directed plaintiff to remove it. The other claim was pleaded in the alternative and based on the right to recover back royalties paid in the mistaken belief of both plaintiff and defendants' decedent that the latter owned the right to remove the coal from Commonwealth's land. The ...