Appeal, No. 85, March T., 1963, from decree of Court of Common Pleas of Clarion County, Feb. T., 1961, No. 2, in case of The New Charter Coal Company v. Cecil W. McKee and Edna McKee, his wife. Decree affirmed; reargument refused July 9, 1963.
John W. Giesecki, with him Merritt H. Davis, for appellant.
No argument was made nor brief submitted for appellee.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.
OPINION BY MR. JUSTICE BENJAMIN R. JONES
By virtue of a deed dated June 2, 1903, the appellant, New Charter Coal Company's (New Charter) predecessor in title acquired all the coal to be found under the lands now owned by the appellees (McKees) with a reservation of one vein of coal more precisely described herein.
New Charter sought by means of an action in equity a determination that it is entitled to remove its coal by the open pit or strip method of mining and to restrain the McKees from preventing the removal of its coal by such method. The Court of Common Pleas of Clarion County refused New Charter's prayer and from such decree New Charter now appeals.
McKees' predecessors in title in the 1903 deed conveyed to New Charter's predecessor in title all the coal - with the exception of one vein of coal - under land in Clarion County. The following are the pertinent provisions of the 1903 deed:
"... ALL the coal (except that hereinafter reserved) lying or being in or upon all those ... two pieces or parcels of land situate ... in the Borough of Sligo, County of Clarion, State of Pennsylvania, bounded and described as follows, to-wit: [in the deed there is a metes and bounds description of the two parcels of land].
"Nevertheless, excepting and reserving out of the operation of the above conveyance to [McKees' predecessors in title], their heirs and assigns, all the vein of coal lying above the limestone and otherwise known as the 'Lower Kittanning Coal Vein.'
"Also reserving to ['McKees' predecessors in title'] the right to drill for oil and gas on the ...