Appeal, No. 12, May T., 1954, from decree of Court of Common Pleas of Dauphin County, Commonwealth Docket, 1953, No. 23, in Equity, No. 2054, in case of Commonwealth of Pennsylvania v. Walter J. Fitzmartin and D. E. Williams, III, trading as the F. & W. Coal Company. Decree affirmed; reargument refused March 3, 1954.
H. F. Stambaugh, Special Counsel, with him H. Albert Lehrman, and Samuel M. Jackson, Deputy Attorneys General and Frank F. Truscott, Attorney General, for appellant.
Elkins Wetherill, for appellees.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE BELL
The Commonwealth filed a bill or complaint in equity to restrain defendants from engaging in strip coal mining on certain lands in Jefferson County owned by the Commonwealth. Defendants filed an answer averring their right as lessees of the mineral rights in this land to strip mine the coal on the surface. The parties agreed upon a stipulation of facts. The Court below denied plaintiff's application for an injunction, but retained jurisdiction in the matter in order to compel, if necessary, the defendants to comply with their statutory obligations to replace the over-burden and make the plaintings and otherwise fully comply with the statute covering strip mining.
The narrow question involved on this appeal is: Does the reservation of mineral rights in the several deeds of conveyance of this tract of land give the defendants, who are the lessees of the mineral rights, the
right to remove coal and other minerals from the land of the plaintiff by the open pit or strip mining method, or are they restricted to shaft of deep mining?
Plaintiff, Commonwealth, is the owner of a certain tract of unimproved mountain land containing approximately 3471 acres situated (partially) in Jefferson County, Pennsylvania, acquired by nine separate deeds, the first of which is dated September 12, 1921, and recorded June 19, 1923, and the last of which is dated April 10, 1923, and recorded June 19, 1923. Each of these deeds contains the following mineral reservation: "Excepting and Reserving all the coal, oil natural gas, and other minerals, in and under the surface of said land ;*fn* together with the exclusive and perpetual right of ingress, egress and regress into and upon said lands to examine, search for, mine, manufacture and prepare said coal, oil, gas and other minerals for market; to take, remove and transport the same therefrom as well as coal, oil, gas, and other minerals from other lands; to build and construct shafts, drifts, air shafts, bore holes, gangways, headings, roads and drains in, through, upon and under said surface; to pump water from the mines and run same on said surface; to locate and erect such fans, engines, machinery, buildings, shafts, drifts, and other structures, with the necessary curtillage, as may be necessary for the convenient use, ventilation and working of the mines and works appurtenant thereto and to manufacture coke; to use sufficient and convenient portions of surface to deposit dirt and waste from the mines, and for the location and erection of miners' dwellings, tenements, office, stores and other buildings; without any liability whatsoever for damages to said lands or for injury to or diversion of waters flowing in, through, under and upon said land."
The defendants are the lessees of the mineral rights in the said tract by virtue of an unrecorded lease, dated December 1, 1951 from the plaintiff's grantor. The Commonwealth does not claim title of any nature to the coal in question, but contends that neither the defendants nor any other person who has title to the coal under the reservation has the legal right to remove it by the strip mining method, thus destroying the surface. The coal which the defendants have been removing by the strip mining method, cannot be removed by deep mining.
The surface of the land in question is rocky, hilly and mountainous. The trees thereon are second-growth, healthy hardwood, in what is known as the pole stage, the trunks of which are six to twelve inches in diameter. The trees and plant life throughout the area are suitable for game habitat, hunting and recreation and the growth is also useful for soil conservation and the retention of surface waters for the prevention of floods. The surface of the above-described tract of land contains no buildings or permanent improvements; there are no railroad lines on the tract, no public highways, and no improvements of any kind which would be affected by the proposed strip mining of the defendants. The land was acquired by the Commonwealth at a nominal price as an area for the conservation, protection and propagation of wild life.
This deed, like many instruments leasing or conveying coal lands or reserving rights therein, does not clearly set forth or define the rights of the parties. Where a deed or agreement or reservation therein is obscure or ambiguous, the intention of the parties is to be ascertained in each instance not only from the language of the entire written instrument there in question, ...