Appeal No. 3, March T., 1954, from decree of Court of Common Pleas of Greene County, in Equity, No. 434, in case of Eugene Kormuth v. United States Steel Company, Hillman Coal & Coke Company and Emerald Coal & Coke Company. Decree affirmed; reargument refused November 30, 1954.*fn* Bill in equity. Before HOOK, P.J. Adjudication filed finding for defendant; exceptions to adjudication dismissed and final decree entered dismissing bill. Plaintiff appealed.
W. Bertram Waychoff, with him Challen W. Waychoff, R. Wallace Maxwell and Waychoff & Waychoff, for appellant.
Charles E. Kenworthey, with him William Foster, Albert A. Sayers, Sayers, Hawkins & King and Reed, Smith, Shaw & McClay, for U.S. Steel Company, appellee.
Kenneth G. Jackson, with him C. M. Thorp, Jr., Earl F. Reed, Jr., Thorp, Reed & Armstrong, Walter C. Montgomery, Montgomery & Montgomery, John F. Wiley and Marriner, Wiley & Marriner, for Emerald Coal & Coke Company, appellee.
Before Stearne, Jones, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE ARNOLD
Plaintiff appeals from the decree of the court below dismissing his bill in equity whereby he sought to enjoin an alleged continuing trespass by defendants.
The facts found by the chancellor, and fully supported by the evidence, are:
In 1902 the Luse heirs, owners in fee, conveyed to the Monongahela River Consolidated Coal and Coke Company all of the coal of the Pittsburgh seam in and underlying some 300 acres of their land "together with ... right of way into, upon and under said land at such points and in such manner as may be proper and necessary for the purpose of ... mining ... and carrying away said coal; Hereby waiving surface support ...; [and] together with the privilege of mining and removing through said described premises other coal belonging to the [grantee], ... its successors and assigns, or which may hereafter be acquired." (Italics supplied).
In 1911, Monongahela conveyed these premises, together with 25 contiguous tracts of the same seam, to the H. C. Frick Coke Company. In 1931 Frick conveyed to Emerald Coal Company five of the twenty-six tracts, some of which lie under the surface retained by the Luses at the time of transfer of coal to Monongahela. This conveyance further provided that it was "only for use by. ... [Emerald] for the purpose of transporting to or adjacent to the Monongahela River coal from other properties now or hereafter owned or controlled by it" and that wheelage be paid by Emerald.
From 1931 to 1937, Emerald mined portions of this piece and constructed an underground haulageway, leaving about 80% of it still to be mined. In so doing, and because of excessive undulations making the mining of the coal dangerous and almost impossible, it was necessary to remove adjacent ...