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MERRILL v. MANUFACTURERS LIGHT AND HEAT COMPANY (11/13/62)

November 13, 1962

MERRILL
v.
MANUFACTURERS LIGHT AND HEAT COMPANY, APPELLANT.



Appeal, No. 215, March T., 1962, from decree of Court of Common Pleas of Somerset County, No. 8 Equity Docket, 1959, in case of Charles A. Merrill, Sr., Elizabeth T. Merrill, his wife, Charles A. Merrill, Jr. et al. v. The Manufacturers Light and Heat Company. Decree reversed.

COUNSEL

Robert W. Smith, Jr. and Edward S. Stiteler, with them, Smith, Best and Horn, and Courtney and Courtney, for appellant.

William S. Livengood, Jr., with him Livengood and Braucher, for appellees.

Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Keim, JJ.

Author: Jones

[ 409 Pa. Page 69]

OPINION BY MR. JUSTICE BENJAMIN R. JONES

This is an appeal from a decree of the Court of Common Pleas of Somerset County, sitting in equity, which determined the rights and duties of the respective parties under a right of way agreement over certain

[ 409 Pa. Page 70]

    coal lands. The propriety of such determination is now before us.

The facts are not disputed. Involved are three tracts of land located in Brothersvalley Township, Somerset County: the first tract is the Homer Y. Fritz tract (hereinafter referred to as Tract No. 2); the second tract is the Zachariah Walker tract (hereinafter referred to as Tract No. 6); the third tract is the Martin Luther Fritz tract (hereinafter referred to as Tract No. 4). The three tracts are contiguous, Tract No. 4 being situated between Tracts Nos. 2 and 6. The appellant, The Manufacturers Light and Heat Company (Company), is the owner of an easement which traverses these three tracts and along which it has constructed and maintained for upwards of 30 years several thousand feet of natural gas transmission pipeline. The present owners of the coal underlying these three tracts and the surface, subject only to the Company's easement, are the appellees (Merrills).

The rights of way across these three tracts were obtained by the Company between December 22 and 30, 1930.*fn1 As of December 22, 1930, the ownership of these three tracts of land was as follows: the surface of Tract No. 4 was owned in fee by Charles A. Merrill, Sr. et ux.; the surface of Tract No. 6 was owned by Zachariah Walker; the surface of Tract No. 2 was owned by Homer Y. Fritz. The mining rights to the three seams of coal underlying Tracts Nos. 2, 4 and 6, with the exception of certain mining rights owned by Homer Y. Fritz in certain coal in Pine Hill #1 under Tract No. 2, had been vested in Blue Lick Coal Company (Blue Lick). In 1927, Blue Lick leased the exclusive right to mine all of its coal in two seams (the

[ 409 Pa. Page 71]

Pine Hill #1 - the uppermost vein - and the Pine Hill #2 - the bottom vein) underlying these tracts to the Enterprise Coal Mining Company (Enterprise), a family corporation, all of the stock of which was and is presently held by the Merrill family. The mining rights to one seam (the middle or the Redstone vein) were not so leased and remained the ...


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