Appeal, No. 251, March T., 1957, from decree of Court of Common Pleas of Somerset County, at No. 2, Equity Docket, 1951, in case William O'Dwyer et al. v. John O. Ream. Decree affirmed.
Charles F. C. Arensberg, with him Frank R. Coder, Ella Graubart and Patterson, Crawford, Arensberg & Dunn, for appellant.
Frank A. Orban, Jr., with him James B. Landis, for appellees.
Before Jones, C.j., Bell, Chidsey, Arnold, Jones and Cohen, JJ.
OPINION BY MR. JUSTICE CHIDSEY
This is an action in equity praying that the defendant-owner of the surface rights and part of the mineral rights of a 263 acre farm be required to cause a survey to be made to delineate plaintiffs' sub-surface coal rights, that defendant be decreed a trustee as to the coal found to belong to plaintiffs, that he account for any encroachments into plaintiffs' coal, that he be restrained from exercising any incidents of ownership over plaintiffs' coal, and other appropriate relief.
Prior to 1902, this 263 acre farm and all of its mineral rights were owned by Cornelius Cober and Elizabeth Cober, his wife. If the neighborhood it was well known that there are numerous coal seams beneath the surface of the land. Some four to six seams of varying thickness were known to lie at different levels above above a rather prominent layer of sandstone known as the Mahoning Sandstone, which itself lies at a depth of about 380 feet from the surface. Beneath the Mahoning Sandstone there are several seams of coal designated alphabetically; the first seam below it being known as "E" coal, lying at a depth of 460 feet, and below that seam lies the D seam, the C prime seam, and C seam, etc.
On February 28, 1902 Mr. and Mrs. Cober conveyed to one J. J. Hoblitzell "all the coal" under their 263 acre farm, excepting (1) "the coal above the Mahoning sand stone" and (2) "one hundred acres of coal bed geologically known and designated as 'E' to be hereafter surveyed from the northeast end of the farm". It is as to this 100 acres of "E" coal that the dispute arises.
Hoblitzell's interest, "all the coal" under the farm except that above the Mahoning Sandstone and the 100 acres of E coal, was subsequently conveyed to the Brothersvalley Coal Company, and thence in 1938 to one James. F. Davis.
When Mr. Cober died in 1913, he devised his interest in the farm to his widow, so at that point Mrs. Cober owned the farm surface, the coal above the Mahoning Sandstone, and the 100 acres of E coal in the northeast end of the farm.
On October 27, 1920, Mrs. Cober leased to the plaintiffs, O'Dwyer and Beachley "... all of the seam of coal owned by the lessor, and reserved by Cornelius Cober in a deed from the said Cornelius Cober and Elizabeth Cober, his wife, to J. J. Hoblitzell ...". The lease was to run "during the time that it will be necessary to exhaust" the coal, and in consideration thereof the plaintiffs-lessees were to pay to Mrs. Cober a minimum royalty of $100 annually during the life of the lease (except during those years in which the royalties for coal removed ran over $100), and a royalty of 10 cents per ton at the time the coal was removed from the ground.
After Mrs. Cober's death, her heirs sold to the defendant, John O. Ream, by deed dated March 11, 1929, the 263 acre farm and assigned to him the royalties due under the 1920 lease with the plaintiffs. Prior to 1934, plaintiffs, who have never mined any of the coal in question, had paid to defendant some $300 in royalties. No payment of royalties was made between 1934 and December, 1950, at ...