Appeal, No. 7, Jan. T., 1960, from judgment of Court of Common Pleas of Adams County, Aug. T., 1957, No. 56, in case of Eva M. Pape v. William A. Hughes et al. Judgment affirmed. Action to quiet title. Before SHEELY, P.J., without a jury. Adjudication filed finding for plaintiff, exceptions to adjudication overruled and judgment entered. Defendants appealed.
Carl G. Herr, with him Donald G. Oyler, for appellants.
Richard A. Brown, with him Brown, Swope & MacPhail, for appellee.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.
OPINION BY MR. JUSTICE EAGEN
The appellee (plaintiff in the court below) on June 25, 1947, by written agreement of lease granted to one H. G. Hess the sole and exclusive right and privilege of mining, removing and marketing of minerals and material, including gravel, sand, clays, stone and ore from a property owned by her in Adams County, for a period of five years, "and for such additional longer period as the hereinbefore mentioned minerals and materials may be found on the premises ... in sufficient quantity as to be profitable commercially to remove, the duration of said extended period to be determined by the" grantee, (Italics supplied) "... for the purpose of mining, digging, dredging, drilling, blasting and removing said minerals and materials deemed useful and/or marketable by the" grantee. By subsequent assignments the rights of Hess vested in the appellants (defendants in the court below).
The contract provided for payment of a royalty of 50 cents a ton for material removed, but did not require payment of a minimum amount of royalties, nor was there any minimum production required.
The appellee-owner instituted this action to quiet title on May 9, 1957, contending that the lease had expired on June 24, 1952, and all rights granted thereunder were abandoned. The appellants-lessees countered that there had been no abandonment; that the leased land contained a vast deposit of minerals and clays in sufficient quantity to be profitable commercially to remove; and that, therefore, the rights under the lease to mine the minerals until exhaustion continues.
The issue, by agreement, was tried without a jury before the Honorable W. C. SHEELY, who concluded,
as a matter of fact, that there had been no abandonment, but that at the end of the five year period specified in the lease, minerals were not found on the premises in sufficient quality and quantity to be removed profitably for commercial purposes and that, therefore, the lease expired on June 24, 1952. We are concerned with an appeal from that decision.
Needless to point out, the findings of fact of the trial judge, if adequately supported by the evidence, are as conclusive on appeal as those that are necessarily included in the verdict of a jury: Girard Trust Corn ...