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BUNDY v. MYERS (02/13/53)

February 13, 1953

BUNDY, APPELLANT,
v.
MYERS



Appeal, No. 180, Jan. T., 1952, from order of Court of Common Pleas of Clearfield County, Nov. T., 1951, No. 171, in case of Margaret Bundy v. Thomas H. Myers and E. J. Rupert. Order reversed.

COUNSEL

Ross H. Pentz, for appellant, submitted a brief.

Carl A. Belin, Pentz & Silberblatt and Clemens Simon, for appellees, submitted a brief.

Harry F. Stambaugh, Special Counsel, Thomas Corbett, Deputy Attorney General and Robert E. Woodside, Attorney General, for Commonwealth of Pennsylvania, amicus curiae, submitted a brief.

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

Author: Jones

[ 372 Pa. Page 584]

OPINION BY MR. JUSTICE JONES

The plaintiff is the successor in title to the grantee of certain realty under a deed of 1884. The defendant Myers is successor in title to the grantor in the same deed which contained the following reservation: "Excepting and reserving, out of this land, the oil, coal, fire clay and minerals of every kind and character with rights of entry for the purpose of removal of the

[ 372 Pa. Page 585]

    same...." Myers leased to defendant Rupert the rights so reserved. Rupert entered upon the land, drilled a well and obtained natural gas. The plaintiff, claiming that gas was not embraced by the reservation, sued Myers and Rupert in ejectment to gain possession of the well. The defendants filed preliminary objections to the complaint, relying upon the reservation in the deed of 1884 for Rupert's right to the gas. The court below concluded that natural gas was included in the reservation and accordingly sustained the defendants' preliminary objections. The reasoning of the court was that inasmuch as oil was expressly included in the reservation and since, at the time of the deed in 1884, it was well known that natural gas was frequently found along with oil, it was the intention of the parties that gas also was reserved. From the order entered sustaining the defendants' preliminary objections, the plaintiff has appealed.

In construing the reservation, two basic principles of long standing are to be borne in mind: (1) that a reservation in a deed is to be construed most strongly against the grantor: Klaer v. Ridgway, 86 Pa. 529, 534, and Sheffield Water Company v. Elk Tanning Company, 225 Pa. 614, 623-624, 74 A. 742; and (2) that the law of Pennsylvania recognizes the existence of a rebuttable presumption that the word "mineral", when used in a deed reservation or exception, does not include oil or natural gas. See Dunham and Shortt v. Kirkpatrick, 101 Pa. 36, 44; Silver v. Bush, 213 Pa. 195, 198, 62 A. 832; and Preston v. South Penn Oil Company, 238 Pa. 301, 302, 86 A. 203.

In the Kirkpatrick case, supra, decided in 1882, it was held that the reservation of "all minerals", contained in an agreement of sale, made in 1870, and in the consequent deed of 1881, did not include oil. ...


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