Appeals, Nos. 112 and 113, Jan. T., 1963, from order of State Mining Commission, in re appropriation and taking of lands of Essex Coal Company and property of C.E. Banker, trading as Sussex Coal Company, and Anthony Gallizzi, lessee. Order affirmed.
Thomas F. Burke, with him Patrick J. Toole, Jr., and William H. Rivoir, Jr., for appellants.
E.C. Marianelli, for appellee.
Before Bell, C.j., Musmanno, Cohen, Eagen, O'brien and Roberts, JJ.
OPINION BY MR. JUSTICE EAGEN
These appeals are from an order of a Pennsylvania State Mining Commission awarding damages covering interests in a quantity of coal underlying a tract of land condemned by the Pennsylvania Turnpike Commission.
The appellant, Essex Coal Company (Essex), was the owner of the surface and underlying coal of 813 acres of land in Luzerne County. On April 13, 1934, Essex "granted, demised, leased and to mine let" to William S. Jermyn and C.E. Banker, in consideration for certain covenants to be kept by the lessees, all the coal underneath the 813 acres together with so much of the surface as was required to carry out the purposes
of the lease. The lease was in writing and duly recorded. It gave the lessees the right to mine and remove the coal by any process of mining, and stipulated that the coal and surface rights would continue "for the term of ten (10) years ... or until the exhaustion of the coal if said exhaustion occurs prior to the end of said term." The agreement specifically prohibited assignment, transfer or subletting without the written consent of Essex.
As part of their covenants, the lessees agreed to pay as rent or royalty for every ton of material removed from the premises the sum of fifty cents. These royalties were payable on the tenth day of each succeeding month. The lessees also agreed to use all diligence in mining and removing the coal and to pay a minimum royalty of $1500 monthly.
By subsequent assignment, the interest of Jermyn in the agreement was transferred to Banker. By written agreement dated March 21, 1944, the term of the agreement was extended for an additional term of ten years in favor of Banker alone. The terms of the original contract were continued; however, the minimum royalty payment requirement was cancelled. By written agreement dated December 16, 1952, the term of the lease was extended until May 1, 1964.
On October 15, 1949, Banker without the express consent of Essex, entered into an agreement with Anthony Gallizzi, giving the latter a license to strip to exhaustion, without time limitation, all of the coal on the demised premises for a specified royalty of seventy-five cents a ton. Essex, through its officers, subsequently gained knowledge of the stripping of coal on its premises by Gallizzi, and entered no objection From the year 1949 to 1954 inclusive, Essex received from ...