Appeal, No. 408, Jan. T., 1961, from judgment of Court of Common Pleas of Clearfield County, Sept. T., 1960, No. 2, in case of Leonard A. Heidt et al. v. Aughenbaugh Coal Company. Judgment affirmed.
John B. Gates, for appellants.
William U. Smith, with him Smith, Smith & Work, for appellee.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen and Alpern, JJ.
OPINION BY MR. JUSTICE BENJAMIN R. JONES, January 2, 1962:
In this appeal we are called upon to determine an issue oft recurring in recent years: whether under the
terms and provisions of a lease of mineral rights strip or open mining of such minerals is permissible. In our determination of this issue we bear in mind the language of the late Mr. Justice STEARNE in Mt. Carmel R.R. Co. v. M. A. Hanna Co., 371 Pa. 232, 89 A.2d 508: "It is the interpretation of the words of the document which determines whether the method of removal of the [mineral] may be by strip mining or is required to be by deep mining."
On April 10, 1918, Mrs. Jennie McNaul et al., owners of a 170 acre tract and a 1 acre tract in Pike Township, Clearfield County, conveyed these tracts to one Harry W. Riddle. In the deed of conveyance there was an express exception and reservation of "all the fire clay together with the mining rights and privileges" contained in a lease for said clay which Mrs. McNaul et al. had entered into with Harbison-Walker Refractories Company (Harbison) on September 14, 1915. By virtue of various wills and conveyances, the ownership of these two tracts of land is now vested in Leonard A. Heidt and Jennie W. Heidt (Heidts), as tenants by the entireties, and the surface of said tracts of land is now occupied by John Riddle and Ellen Jean Riddle (Riddles), who have a contract to purchase the said tracts of land from Heidts.
Harbison, under its lease, deep mined fire clay under the said tracts of land from 1915 until 1926 and Harbison's rights under the lease are now vested in Aughenbaugh Coal Company (Aughenbaugh). On June 8, 1957, Carrie McNaul et al., the present owners in reversion of the fire clay under said tracts of land, made an additional lease of the fire clay to Aughenbaugh, said lease not being recorded until October 27, 1960, which was subsequent to the institution of the present litigation.*fn1
On or about October 1, 1960, Heidts and Riddles posted the land with "No Trespass" signs and advised Aughenbaugh that they would not permit bulldozers, power shovels, power drills and other heavy strip mining equipment to enter upon the surface of the said tracts of land for the purpose of strip mining and removing the fire clay thereunder. However, Aughenbaugh did enter upon the land and began to strip ...