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MCARTHUR v. BALAS (ET AL. (01/04/61)

January 4, 1961

MCARTHUR, APPELLANT,
v.
BALAS (ET AL., APPELLANT).



Appeals, Nos. 232, 233, 234, 235, 265, and 266, March T., 1960, from order of Court of Common Pleas of Allegheny County, July T., 1957, No. 923, and Jan. T., 1958, No. 1326, in cases of David McArthur et ux. v. John Balas, Jr. et al., Robert W. Tarpley, administrator of estate of Lewis Yancy Tarpley, deceased v. Same. Order granting defendants' motion for new trial reversed; order granting plaintiffs' motion for new trial affirmed.

COUNSEL

Benjamin Jacobson, with him Morris B. Greenberg, and Hirsch & Hirsch, for plaintiffs, appellants.

Joseph F. Weis, Jr., with him Weis & Weis, for defendants, Rostosky, appellants.

Louis Vaira, with him Barna & Barna, for defendants, Balas, appellees.

Before Jones, C.j., Musmanno, Jones, Cohen, Bok and Eagen, JJ.

Author: Jones

[ 402 Pa. Page 118]

OPINION BY MR. JUSTICE BENJAMIN R. JONES.

David McArthur and Bertha McArthur, his wife, owned land, improved with a dwelling house, in Foreward Township, Allegheny County. To the rear of and adjoining McArthurs' property was a large tract of land owned by Andrew Balas and John Balas, Jr. (herein called Balas). The Balas' land was on a hillside at a considerable elevation above and sloped downward toward McArthurs' property. Balas' land contained a "four foot" vein of coal which lay near the surface.

On February 13, 1953, Balas entered into a coal lease agreement with Joseph E. Gross under the terms of which Gross was to strip mine Balas' land. In accordance with the terms of the Balas-Gross lease, Gross entered Balas' land to strip mine the coal on March 6, 1953 and occupied the land for that purpose until October 14, 1953. During the course of that time, Gross uncovered the coal in the "four foot" vein and made a lateral cut in the hillside 30 feet in width and 1200-1400 feet in length. During that time Gross uncovered about 4,000 tons of coal of which only 2,000

[ 402 Pa. Page 119]

    tons were removed because of market conditions for coal at the time. The excavated earth or overburden which had covered the coal was placed by Gross on the downhill side of the cut.

In July of 1955, Balas entered into a contract with Michael Rostosky and Joseph Rostosky to remove the remaining uncovered coal in the cut, this contract providing, inter alia, that Rostoskys should place their earth or overburden inside the cut and not outside of the cut. Rostoskys entered upon Balas' land in July of 1955 and remained thereon until August 18, 1955 at which time they removed therefrom.

In the early part of March, 1956, the land to the rear of McArthurs' property began to slide and, as a result of this earth slide, ...


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