Appeal, No. 20, March T., 1958, from judgment of Court of Common Pleas of Somerset County, 1955, No. 418 C.D., in case of Frank Moravecz et ux. v. Hillman Coal & Coke Company. Judgment reversed.
Nathaniel A. Barbera, with him Robert M. Steffler, Simon K. Uhl, and Shaver, Heckman and Barbera, for appellant.
James Francis O'Malley, with him Frank R. Coder, Norman A. Shaulis, and Yost & Meyers, for appellees.
Before Jones, C.j., Bell, Chidsey, Musmanno, Arnold, Jones and Cohen, JJ.
OPINION BY MR. CHIEF JUSTICE JONES
This action in assumpsit was instituted by the plaintiffs as the owners of certain surface land to recover damages for the alleged breach of a covenant by the defendant lessee of underlying coal to "drill a well and install a pump to furnish a sufficient supply of good water" to buildings of the surface owner in the event that the existing supply of water was damaged by mining operations of the lessee of the coal. At trial, the jury returned a verdict in favor of the plaintiffs for $6,250 whereon the court below entered judgment after overruling the defendant's motions for judgment n.o.v. and a new trial. The defendant has appealed.
On February 1, 1915, Charles R. Walter, the owner of a tract of land in Somerset County containing approximately 66.26 acres, conveyed to William A. Morrow all the underlying coal, the grantor reserving to himself the surface. On the succeeding day, Morrow conveyed all of the coal to Oliver A. Blackburn who, on August 15, 1921, leased the "C" prime seam of coal to the Jenner-Quemahoning Coal Co. On February 25, 1924, Jenner-Quemahoning Coal. Co. was merged, along with certain other companies, into the Hillman Coal & Coke Company. The lease from Blackburn of the "C" prime seam, to which Hillman Coal & Coke Company had succeeded by virtue of the merger, was superseded by a new lease, dated May 1, 1932, from Blackburn to the Hillman Coal & Coke Company, covering only the "C" prime seam. This later lease, by its terms, was to continue for a period of ten years, with
certain right in the lessee to an extension in case there remained any unmined recoverable coal at the expiration of the ten-year term, which the lessee desired to mine and remove.
The covenant, as contained in the lease of May 1, 1932, between Blackburn and the Hillman Coal & Coke Company, which is at the base of this controversy, was derived from an identical covenant in the original deed of February 1, 1915, from Walter to Morrow and reads as follows: "Together with the full, perpetual and exclusive clusive right to enter in, upon and under the said lands to dig, test, drill and explore for said coal and to mine, remove and transport said coal and other coal from this and other lands with the full privileges which are usual and necessary for mining purposes, without liability for damages, except that, in case of any surface damages or surface rendered useless by caving in or in making hallways or air shafts or dumping waste material, said surface shall be paid for by the parties owning or operating said mine at double the assessed value of present assessed valuation of surface, or, at $50.00 per acre for said damaged surface, as the owner or operator of said mine may choose. Each cave-in of surface shall be considered as damaging an acre which shall be laid off in a square, with said cave-in at the center, the payment of said acre to be final settlement; providing, also, that if the present supply of water at the spring near the dwelling house is damaged by the mining and removal of said coal, then the parties mining and operating the coal shall drill a well and install a pump to furnish a sufficient supply of good water for said dwelling house and barn, all other damage to water, streams and property being hereby waived" (Emphasis supplied).
While the Coal Company was mining and removing the coal in the "C" prime ...