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ROCHEZ BROS. v. DURICKA (06/26/53)

June 26, 1953

ROCHEZ BROS., INC., APPELLANT,
v.
DURICKA



Appeal, No. 74, March T., 1953, from order of Court of Common Pleas of Westmoreland County, in Equity, No. 2447, in case of Rochez Bros., Inc., v. Stephen Duricka et ux. Order affirmed.

COUNSEL

Robert W. Smith, Jr., with him Smith, Best & Horn, for appellant.

Joseph M. Loughran, with him John S. Lightcap, Jr., for appellees.

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

Author: Musmanno

[ 374 Pa. Page 264]

OPINION BY MR. JUSTICE MUSMANNO

On July 28, 1927, the defendants, Stephen Duricka and his wife Veronica, by deed from S. W. Miller and Charles Moore, became the owners of a tract of farmland located in Derry Township, Westmoreland County, Pennsylvania, comprising 251.881 acres. The conveyance was subject to a former owner's reservation (by deed dated February 17, 1919) of all the coal in and underlying said tract (excepting 2.5 acres) as follows: "TOGETHER with the right to mine and carry away all of said coal, and with all the mining rights and privileges necessary or convenient to such mining and removal, draining and ventilating of the same, and without being required to provide for the support of the overlying strata, and without liability for injury to the said surface or to anything therein or thereon by reason of the mining and removal of all of said coal or the manufacture of the same or other coal into coke, or other products, at such places as may be selected by said second party, its successors or assigns together with the right of mining and removing under said described premises other coal or matter belonging to or that may hereafter belong to the said second party, its successors or assigns."

In addition, the grantors also expressly reserved from their conveyance to the Durickas the coal underlying the 2.5 acres (which had been excepted from the original reservation) together with the following mining rights: The full, free, and exclusive right to enter in, upon, and under, the lands hereby conveyed for the purpose of exploring, drilling for, testing, and digging, mining, draining, storing, shipping, transporting and operating said reserved coal, either as a custom coal mining proposition or otherwise, without liability for damages to the surface, or anything therein or thereon, by reason of said operations or the failure to provide

[ 374 Pa. Page 265]

    support for the overlying strata. Said mining right to be perpetual until all of said coal has been fully removed."

The plaintiff, Rochez Bros., Inc., has now become the owner of the rights contained in the two cited reservations and seeks to extract, through the process known as strip mining, the coal to which it has title. The defendants having refused the plaintiff access to the premises for the purpose indicated, the latter filed a bill in equity to enjoin the defendants from interfering with its surface removal of the coal. The defendants filed preliminary objections setting forth that the plaintiff's mining rights did not include strip mining. The objections were sustained and the bill was dismissed. This appeal followed.

The specific question presented is whether the reservations quoted above allow the plaintiff company to remove coal through strip mining methods or whether it is restricted to shaft mining. Strip mining, as the term indicates, is the stripping away of the earth surface and the horizontal withdrawal of the mineral deposits at hand. Shaft mining involves the sinking of a vertical shaft into the ground and the developing from that point of tunnels and galleries which serve as vantage points from which to withdraw and lift the coal deposits through the shaft. Shaft mining does a minimum of damage to the outer crust of the earth; strip mining does a maximum of damage. Strip mining is effected through steam shovels and bull dozers which turn up the top layer of the earth as easily as a can opener lays bare the contents of a box of sardines.

It is obvious, in view of the surface violence, destruction and disfiguration which inevitably attend strip or open mining, that no land owner would lightly or casually grant strip mining rights, nor would any ...


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