Appeal, No. 34, March T., 1955, from judgment of Court of Common Pleas of Cambria County, March T., 1953, No. 166, in case of Mary Luther v. The Pennsylvania Game Commission and/or Robert A. Williams. Judgment affirmed.
Paul D. Larimer, with him Englehart, Larimer & Englehart, for appellant.
George M. Spence, with him John Sullivan, Deputy Attorney General, Herbert B. Cohen, Attorney General, and Spence, Custer, Saylor & Wolfe, for appellees.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE MUSMANNO
Mary Luther, the plaintiff in this case, brought an action to quiet title for certain seams of coal underlying certain lands in Dean Township, Cambria County. Upon a case stated, the Court below gave judgment in favor of the defendants and this appeal followed.
On October 5, 1931, Frank P. McFarland and Oliver Rothert, owners in fee simple of a parcel of land, sold to H. L. Binnix the B. seam of coal underlying
that land, and at about the same time sold the C prime seam to the Bellefield Coal and Coke Company. Binnix erroneously advised the county assessor that he had purchased all of the land beneath the surface, except the C prime seam. Because of Binnix's letter, the assessment records were changed to show that McFarland and Rothert owned the surface alone; that the Bellefield Coal and Coke Company owned the C prime seam; and that Binnix owned all the coal except the C prime seam. Binnix became delinquent in his taxes and in 1938 the coal erroneously assessed against him (to wit, all that excepting the C prime) was sold by the county treasurer to the County Commissioners for delinquent taxes. On April 4, 1952, the County Commissioners, after Court approval, sold to Mary Luther all of the coal theretofore assessed against Binnix.
In 1943 the heirs of McFarland and Rothert sold their remaining interest in the property (the surface and all minerals except B and C prime seams already conveyed as above stated) to the Pennsylvania Game Commission and the Game Commission leased the E seam to the defendant Robert A. Williams for stripping operations.
Mary Luther, being of the impression that she had acquired good title to all seams of coal (except the C seam) brought an action to quiet title against the Game Commission and Robert A. Williams under Rule 1061, et seq., Rules of Civil Procedure. In their Answer, the Pennsylvania Game Commission and Wiliams contested the plaintiff's title to all coal with the exception of the B seam, that being the only layer of coal actually owned by Binnix, predecessor in title.
Mary Luther conceded that Binnix's ownership was limited to the B seam, but contended that the Game Commission, as the assignee of McFarland and Rothert, was estopped ...