Appeal, No. 57, March T., 1954, from order of Court of Common Pleas of Armstrong County, March T., 1953, No. 271, in case of Hugh W. Iseman and Robert E. Iseman, trading as Iseman Brothers v. Joe F. Sherman Company. Order reversed.
Robert M. Dale, with him John W. Rohrer and Chester H. Byerly, for appellant.
Robert E. Ashe, with him E. O. Golden and Edward J. Steiner, for appellees.
Before Stern, C.j., Stearne, Jones, Bell, Musmanno and Arnold, JJ.
OPINION BY MR. CHIEF JUSTICE HORACE STERN
This is an action to quiet plaintiffs' title to certain coal against defendant's claim of a leasehold interest therein. From a welter of criminations and recriminations between the parties there emerges an established legal principle which, when applied to the facts, points to the proper determination of this controversy.
In 1937 Robert R. Hodgson sold and conveyed to the Pennsylvania Game Commission the surface rights
in 1113.8 acres of land in Mahoning Township, Armstrong County, said tract being thenceforth known as Game Lands No. 137; Hodgson reserved the underlying coal and limestone. In 1944 plaintiffs acquired ownership of the coal under 187 acres of this tract lying west of State Highway Route 66. By lease dated September 1, 1945, Hodgson leased to plaintiffs, for a period not to exceed 20 years, all the Lower Freeport Vein of coal under land which included the 926.8 acres of Game Lands No. 137 lying east of Route 66. On July 26, 1950, Hodgson leased to defendant, for a period of five years, all of the Freeport Vein of coal under those 926.8 acres; this lease was dated back to April 18, 1950, defendant claiming that it was on that date that Hodgson had orally agreed to give it such a lease. While, as stated, the lease was of all of the Freeport Vein, defendant frankly admits that it was intended to cover only the Upper Freeport Vein. The Lower and Upper veins are 35 to 40 feet apart.
It was defendant's purpose, as Hodgson well understood, to remove the coal acquired under its lease by the process of stripping, and, as a result of their discussion on that subject, they concluded that it would be advisable for defendant to obtain permission of the Pennsylvania Game Commission to mine by that method. Accordingly, simultaneously with the execution of the lease, they executed a collateral agreement wherein defendant agreed to carry out the provisions of the lease provided permission was obtained from the Commission to strip mine the leased property within days after July 26, 1950, and Hodgson agreed that if defendant did not reach such an agreement with the Commission he would waive the provisions of the lease and declare the same null and void. The reason why the number of days for obtaining such permission was left blank was because, although
they discussed a period of 60 to 90 days, they did not know the likely time that might be required to obtain action by the Commission, and so they arranged that later, upon being better informed in this regard, they would ...