Appeal, No. 218, April T., 1954, from judgment of Court of Common Pleas of Somerset County, 1951, No. 1455, in case of J. M. Shober Farms, Inc., v. Charles A. Merrill, Charles A. Merrill, Jr., and William A. Merrill, II. Judgment affirmed.
Charles H. Coffroth, for appellant.
Wm. S. Livengood, Jr., with him Livengood & Nissley, for appellees.
Before Hirt, Ross, Gunther, Wright, and Woodside, JJ. (rhodes, P.j. and Ervin, J., absent).
[ 179 Pa. Super. Page 447]
This is a suit in assumpsit for unpaid haulage royalties. Plaintiff is the assignee of rights to royalties granted by deed of 1917 from assignor to defendants' predecessor in title. At the time of the conveyance, the grantor, J. M. Shober, was owner of a one-half interest in the land as tenant in common. The deed conveyed the one-half interest but contained the following reservation:
"2. Also, Reserving and Excepting, the right to the Party of the First Part, his heirs, executors, and administrators or assigns to build and operate a railway or tramway or to grant said right to anyone else
[ 179 Pa. Super. Page 448]
to build or operate such railway or tramway within 100 feet of the said Shober Run and on the premises hereby conveyed; said railway or tramway shall, however, not be built in any way which will interfere with the mining operations now begun by the Parties of the Second Part and should the Parties of the Second Part build and operate a railway or tramway along said Shober Run for the removal of coal from the land herein conveyed or from the Harry Hauger farm and Noah and Ira Beachley farms adjoining it, must be built to the extreme right as far as it is practicable going upstream, and should the parties of the Second Part, their heirs, executors, administrators or assigns desire to carry or convey more coal over said railway or tramway, than the coal mined from the above named tracts of land, then, the Party of the First Part, his heirs, executors, administrators, and assigns shall be paid one cent per gross ton royalty for all coal carried or conveyed over said railway or tramway."
A railway was constructed along Shober Run and coal from mines other than those specified in the reservation has been transported over the railway without payment of royalties. Defendants filed preliminary objections to the complaint which were sustained by the court below on the ground that the reservation was void ab initio.
This precise question has never before been passed upon by the courts of this Commonwealth. It is, however, well settled that one cotenant cannot, by a conveyance of his interest in a portion of the property held in common, prejudice the rights of his cotenants, nor can he split the property into fragments so as to necessitate many separate suits for partition. Keystone State Theatre Co. v. Widmyer, 366 Pa. 533, 79 A.2d ...