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MOUNT CARMEL RAILROAD COMPANY v. M. A. HANNA COMPANY (06/24/52)

June 24, 1952

MOUNT CARMEL RAILROAD COMPANY, APPELLANT,
v.
M. A. HANNA COMPANY



Appeal, No. 177, Jan. T., 1952, from decree of Court of Common Pleas of Northumberland County, in Equity, No. 842, in case of Mount Carmel Railroad Company and Reading Company v. M. A. Hanna Company. Decree affirmed.

COUNSEL

Michael Kivko, with him H. Merle Mulloy, Andrew L. Armstrong and Matthew D. Mackie, for appellants.

Robert McK. Glass, with him Charles B. Waller and Bedford, Waller, Darling & Mitchell, for appellee.

Before Drew, C.j., Stern, Stearne, Bell, Chidsey and Musmanno, JJ.

Author: Stearne

[ 371 Pa. Page 233]

OPINION BY MR. JUSTICE ALLEN M. STEARNE

The basic question raised by this appeal is whether or not M. A. Hanna Company, the appellee, possesses

[ 371 Pa. Page 234]

    the right to strip mine coal underlying the railroad of Mount Carmel Railroad Company (owner) and Reading Company (lessee) appellants herein. The court below decided that it had such right and dismissed the bill in equity seeking to restrain appellee from strip mining the coal underlying appellants' railroad. This appeal followed.

The right of appellee to strip mine the coal depends upon the interpretation of a written document dated September 29, 1891, executed by the Mineral Railroad and Mining Company (a predecessor in title to appellee, the lessee of lands in Mount Carmel Township in Northumberland County) and the Mount Carmel and Natalie Railroad Company (a predecessor in title to appellants). Under this document (variously termed a deed, grant, agreement and release) the lessee granted the railroad company a right of way over the surface of its land to "make, construct, maintain and use its said railroad" which extended approximately 5.90 miles from Natalie Junction to Natalie Colliery. The area over which the right of way was granted is shown by two maps attached to the document. The strip of land was not to exceed thirty acres of surface, and to be of a width not over thirty feet on either side of the center line shown on the maps. The lessee's term was for nine hundred and ninety-nine years, and the rights of the railroad company were for five hundred years from September 29, 1891.

The findings of fact of the chancellor concerning title were approved by the court in banc and are sufficiently supported by the evidence. The M. A. Hanna Company, appellee, became the successor to all the rights of the Mineral Railroad and Mining Company, the lessee-grantor. The fee title to the surface over which the appellants' right of way extends is vested in appellee, subject to the grant in the document dated

[ 371 Pa. Page 235]

September 29, 1891, supra. All the rights granted to the Mount Carmel and Natalie Railroad Company became vested in the appellants. As we approve the findings of the court below establishing title, we will not recite in detail the chains of title. The only question of law encountered in tracing the title concerns the sufficiency of the assignment of the rights of Mineral Railroad and Mining Company to appellee. On December 24, 1913, the stockholders of Mineral, a corporation, approved the transfer of all property of the company to appellee's predecessor, but no formal assignment was executed prior to dissolution of Mineral Corporation in 1932. To cure this possible defect in title, on March 2, 1951, all parties who had owned shares in Mineral Corporation at the time of its dissolution, viz.: Pennsylvania Railroad Company and Northern Central Railway Company, joined in an assignment to appellee. Appellants argue that the Act of May 21, 1881, P.L. 30, 15 PS 3062, provides the exclusive method by which the officers of a dissolved corporation may convey assets. Appellee contends that this is an enabling act only and not a mandatory procedure. Since no creditors' rights are involved, we agree with the conclusion of the learned court below that the assignment by all those who held stock at the time of dissolution was effective to pass whatever title was ...


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