Appeal, No. 48, March T., 1955, from judgment of Court of Common Pleas of Cambria County, March T., 1953, No. 488, in case of Walter J. Scanlan & Son v. Lawrence Sherbine. Judgment affirmed.
Clarence E. Davis, with him Davis & Davis, for appellant.
Alton A. McDonald, with him Myers & McDonald, for appellees.
Before Stern, C.j., Jones, Bell, Chidsey and Arnold, JJ.
OPINION BY MR. JUSTICE ARNOLD
Defendant, Sherbine, appeals from judgment entered on the jury's verdict in an action of trespass brought by plaintiff, Walter J. Scanlan & Son, to recover for coal mined and roads destroyed by Sherbine on lands under lease to plaintiff. The defense was invalidity of plaintiff's lease by reason of fraud practiced by plaintiff upon the lessors in the procurement of the lease, and that Sherbine had a valid lease of the premises.
On April 16, 1948, Walter Scanlan, one of the members of plaintiff-partnership, leased from one Basal and others, for a term of three years, the "E" seam of coal in a 225 acre tract in Cambria County. On March 1, 1950, Scanlan assigned this lease to Sherbine, the defendant, who ceased mining thereon prior to June 7, 1950, but resumed mining in December, 1950.
By another agreement of June 7, 1950, Scanlan & Son secured from the aforesaid Basals a lease of "all" the seams of coal under several contiguous tracts, including the 225 acre tract. This lease excepted the "E" seam of coal under another of the tracts, and also provided that no rights were to be exercised as to the 225 acre tract until expiration of the assigned lease of April 16, 1948. By a supplemental agreement dated October 3, 1950, this excepted portion on another tract was also leased to Scanlan & Son, who paid royalties upon all of the tracts to the lessors until March, 1953.
On March 10, 1951, the Basals extended the term of Sherbine's 1948 lease for an additional three year
period. On April 16, 1951, the expiration date of the 1948 lease, Scanlan & Son demanded of Sherbine a surrender of the premises. Sherbine refused, and on April 26, 1951, plaintiff brought this action.
Sherbine's position was that the lease of June 7, 1950, was prepared by plaintiff; that it was to have been identical with a prior expired lease had between the Basals and other parties, which leased only the "D" seam of coal; that contrary to the understanding between the Basals and plaintiff, the lease of June 7, 1950, provided for "all seams of coal"; and ...