Appeal, No. 192, March T., 1954, from judgment of Court of Common Pleas of Westmoreland County, Aug. T., 1953, No. 255, in case of Cochran Coal Company v. Municipal Management Company and Municipal Authority of Westmoreland County. Judgment reversed.
Fred B. Trescher, with him Howard M. Whitehead, for appellant.
Robert W. Smith, with him Ernest R. Von Starck, Morgan, Lewis & Bockius, John G. Gaut, and Smith, Best & Horn, for appellees.
Before Stern, C.j., Stearne, Jones, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE JONES
The plaintiff company sought by this action of trespass to recover damages for the occupation by the defendants of a substantial part of its coal lands and mining rights in Westmoreland County, Pennsylvania. The court en banc sustained preliminary objections to the complaint and entered judgment for the defendants. This appeal by the plaintiff followed. The basic legal question involved is whether the injuries to the plaintiff's property allegedly inflicted by the defendants may be redressed in an action of trespass or whether the
appropriate remedy is a viewers' proceeding for the ascertainment of the damages.
The plaintiff, Cochran Coal Company, is a private corporation organized and existing under the laws of Pennsylvania with its principal office in Salina, Westmoreland County. It was incorporated for the purpose of engaging in the mining and removal of coal; and, in connection with its operations, it acquired "mines and large blocks of coal in Bell and Washington Townships, Westmoreland County, ... including the right to mine and remove said coal without any obligation to support the surface, and including the right to use the surface above said coal for the purpose of mining and removing said coal, ... of digging, testing, drilling and exploring for said coal, ... of ventilating said mines, and ... if constructing manway shafts and entries or exits."
The defendant Municipal Authority of Westmoreland County is a public corporation organized under the Pennsylvania Municipality Authorities Act of 1945, P.L. 382, 53 PS § 29000z-1 et seq., for the purpose of acquiring and operating a water distribution system to serve consumers in Westmoreland County, maintaining its office in Greensburg. The Municipal Management Company, the other defendant, is a private corporation organized and existing under the laws of Pennsylvania; it likewise maintains its office in Greensburg.
On July 1, 1950, the Authority entered into a contract with the Management Company whereby the latter, for a fee of 7 1/2% of the gross revenues of the Authority, agreed to manage the waterworks system of the Authority for a period of forty years and further agreed "to construct or acquire a dam on Beaver Run in Bell and ...