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OWENS v. THOMPSON. (06/25/56)

June 25, 1956

OWENS, APPELLANT,
v.
THOMPSON.



Appeal, No. 109, Jan. T., 1956, from decree of Court of Common Pleas of Clearfield County, Feb. T., 1955, No. 2, in case of Ray W. Owens et ux. v. Clyde G. Thompson. Decree affirmed. Equity. Before PENTZ, P.J. Adjudication filed finding for defendant; exceptions to adjudication dismissed and final decree entered dismissing complaint. Plaintiffs appealed.

COUNSEL

Harold J. Boulton, with him John B. Gates and Boulton & Boulton, for appellants.

Frank G. Smith, for appellee.

Before Stern, C.j., Jones, Bell, Chidsey, Musmanno and Arnold, JJ.

Author: Musmanno

[ 385 Pa. Page 507]

OPINION BY MR. JUSTICE MUSMANNO Ray W. Owens and Barbara E. Owens, the plaintiffs

[ 385 Pa. Page 508]

    in this case, own the coal rights under four tracts of land, totaling approximately 274 acres in Pike Township, Clearfield County. As to surface ownership Ray Owens held title to an undivided one-fifth of the land. The other four-fifths were owned by one Ray Walker. On May 5, 1949, Clyde G. Thompson, the defendant in this case, entered into a lease agreement with Ray and Barbara Owens, the plaintiffs, for the right to mine and remove the coal in the D and E seams lying in, upon or under the 274 acres, plus surface rights in the one-fifth interest heretofore mentioned.

The lease provided that the lessee was to "proceed at once to develop the mining operation in the 'D' or Moshannon vein of coal upon the leased premises now opened, and diligently mine and remove said coal according to the laws of Pennsylvania in a good and workmanlike manner, for the purpose of recovering all the coal ... remaining in the leased premises."

The lessee agreed to make minimum royalty payments in the sum of $250 per month, all royalties paid on coal actually mined to be credited on minimum royalties due in any succeeding month of the leased term, the lessee retaining the right to mine sufficient coal to reimburse himself for any overpayment of minimum royalty. The lease was to go into effect on May 16, 1949 and continue in full force and effect for a period of five years with the right of renewal on the part of the lessee for "periods of one year each, on the expiration of the original five year term, providing he shall not be in default in any of the covenants, terms and conditions of the said lease prior to this election of renewal thereof." The lease contained no provision requiring the lessee to give written or other notice of his intention to continue with the lease.

The defendant Thompson was authorized, under the terms of the agreement, to employ both deep mining

[ 385 Pa. Page 509]

    and open pit methods in extracting the coal. The latter technique requires possession of the upper crust of the earth since it entails the actual stripping away of the outer covering of the terrain. In order to make full use of the strip mining procedure, the defendant set out to obtain surface rights in the remaining four-fifths of the surface. This he was unable to accomplish until July, 1954. In the meantime he purchased the deep mining equipment at the mine and proceeded to use it. Because of conditions over which he had no control he encountered difficulties and misfortune. Driving a heading which took him into the old workings of an adjacent mine, water pourted into his holdings, necessitation the use of pumps to keep the mine working. However, by February, 1953, because of the excess water which had pervaded the workings and because also of rock ...


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