Appeal, No. 23, March T., 1959, from decree of Court of Common Pleas of Butler County, in equity, March T., 1951, No. 4, in case of Edward A. Hummel et al. v. Alma McFadden et al. Decree affirmed.
William C. Robinson, with him Henninger & Robinson, for appellants.
Luther C. Braham, with him Darrell L. Gregg, Richard B. Kirkpatrick, Norman D. Jaffe, and Galbreath, Braham, Gregg, Kirkpatrick & Jaffe, for appellees.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Mcbride, JJ.
OPINION BY MR. JUSTICE BENJAMIN R. JONES
In this equity suit the appellants seek the partition of both the surface and the coal of a large tract of land situated, in greater part, in Butler County and, in smaller part, in Mercer County.
In 1910 one Tifney McFadden conveyed this entire tract of land, including, both surface and coal, to six sisters surnamed Buchanan. Subsequently, two of these sisters died; upon their deaths, their respective interests in both the surface and coal of this tract became vested in their four surviving sisters, two of whom married (Mary Buchanan McFadden and Isabella Buchanan Stillwagon) and two remained single (Hannah and Harriet Buchanan).
On June 2, 1934 three of the sisters conveyed to the fourth sister, Mary McFadden, the surface of the northern 47 acres of the tract, the grantors reserving however all their interests in the coal underneath these 47 acres. On the same date, the two married sisters, - Mary McFadden and Isabella Stillwagon,
joined by their spouses, conveyed the surface of the southern 47 acres of the tract to their two spinster sisters as joint tenants with right of survivorship, the grantors reserving all their interests in the coal underneath these 47 acres.
On June 5, 1934 all four Buchanan sisters (the married ones being joined by their spouses) - representing the entire ownership of the coal under the entire tract - entered into a written agreement with Ralph McFadden, an appellee, for the mining and removal of the coal under 15 acres of the easterly section of the northern 47 acres.
Three years later Hannah Buchanan died, her interest in the coal or the proceeds therefrom becoming vested in her three surviving sisters. On May 2, 1940 Isabella Stillwagon died survived by her husband and six children; on the husband's death on March 14, 1945 Mrs. Stillwagon's entire interest in the coal or the proceeds therefrom vested in her six children.
On August 31, 1945 all parties with any interest in the coal under the entire tract of land entered into another written agreement with Ralph McFadden for the mining and removal of the coal lying under the balance of the entire tract not covered in the 1934 mining agreement.
Subsequently the appellants acquired whatever interest certain of the Stillwagon children had in the ...