Appeal, No. 207, April T., 1962, from judgment of Court of Common Pleas of Fayette County, Sept. T., 1960, No. 498, in case of Bridgeview Coal Company v. E.L. Burchinal and H. Malcom Burchinal, partners trading and doing business as Burchinal Coal Company. Judgment affirmed.
Charles R. Spurgeon, with him Frank R. Crow, Jr., and Spurgeon & Spurgeon, and Parshall & Crow, for appellant.
Ben F. Wright, with him Lee M. Smith, for appellees.
Before Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (rhodes, P.j., absent).
[ 201 Pa. Super. Page 604]
In this appeal from a declaratory judgment, entered by the Court of Common Pleas of Fayette County, in favor of the Burchinal Coal Company, defendant-appellee, and against the plaintiff-appellant, Bridgeview Coal Company, the court below held that an alleged deed of an interest in land amounted only to a contractual right to strip the coal vein.
The facts are stipulated by the parties and may be summarized as follows:
Hecla Coal Company, hereinafter designated as A, was the owner in fee of the land in question. On April 16, 1945, A sold and conveyed to Edward Higbee, hereinafter called B, all the unmined coal in the nine-foot vein in and under said tract with mining rights of this vein; and a complete waiver of support of the overlying strata and surface. By this deed B was the owner of the coal in the nine-foot vein and could remove it without any duty of support. A retained title to the surface and all other minerals underlying the tract and the right of support, with the exception of a waiver granted to B as to the nine-foot vein.
On May 22, 1945, A executed and delivered to B a conveyance of the land in question but reserved all the coal, oil and gas in the underlying tract with the mining rights appurtenant thereto, as well as the right to bore for oil and gas.
By these conveyances B now owned the surface of the tract and the nine-foot vein thereunder; and also the right to mine and remove the coal in the nine-foot vein. A retained all coal under the tract, including the five-foot or Redstone vein and, of course, excepting the nine-foot vein. A could still remove all coal in any vein except the nine-foot vein and could remove the
[ 201 Pa. Super. Page 605]
coal in the five-foot vein by any method, including strip mining, without regard to surface support. B, of course, could mine the nine-foot vein without regard to surface support for any intervening veins between the nine-foot vein and ...