Appeal from judgments of Court of Common Pleas of Clarion County, Nov. T., 1966, No. 123, in case of Budd B. Stewart, surviving executor of estate of Thomas M. Stewart, deceased, v. Peter Chernicky et al.
H. Ray Pope, Jr., for appellant.
Arnold E. Dolby, for appellees.
Chester H. Byerly, for appellees.
Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Eagen.
This action results from an alleged unauthorized strip mining of a portion of a tract of land by Peter Chernicky and E. G. Kriebel, Trading as C & K Coal Company [C & K Company], a partnership.
The tract consists of 21 1/4 acres located in Perry Township, Clarion County. By deed dated December 8, 1902, the then owner, D. W. Bartow, granted and conveyed to Horace A. Noble et al., all the coal in and under the tract with the right to remove the same without liability for injury to the surface. Bartow retained ownership of the surface.*fn1 On the dates here involved, the Thomas M. Stewart Estate, as Bartow's successor in title, was the owner of the surface. Vincent C. Conner and Lois Conner, as successors in title
to Noble et al., were the owners of the coal. C & K Company was the lessee of the coal rights vested in the Conners.
The tract was remote, uncultivated woodland, not easily accessible, and its boundaries were not clearly distinguishable from those of the surrounding lands.*fn2 It was but one of 33 separate properties which the Conners had leased to the C & K Company in a single document dated March 8, 1962. The Conners owned both the surface and the coal rights in a portion of these, while in others they owned only the coal. In the lease this particular tract [the Stewart Tract] had been designated the "V. C. Conner Tract (Coal)," leading some to believe the Conners owned both the surface and the coal.*fn3 C & K Company never had it or the land adjacent to it surveyed, whereby the divided ownership might have been realized. As a result of these circumstances, six or seven acres of it were stripped in 1963 without the consent of the Stewart Estate, causing extensive damage to the surface. The Stewart Estate instituted this action seeking damages from C & K Company and the Conners. At trial, the jury returned a verdict in favor of the plaintiff and against all defendants in the amount of $10,200. Motions for judgment notwithstanding the verdict or a new trial were filed by all defendants. The court below granted the motions for judgment n.o.v. The Stewart Estate appealed.
The central issue is: Did the C & K Company have the right to remove the coal under the land involved by the strip mining method without liability for injury to
or destruction of the surface, regardless who owned that surface, or was such removal to be limited to shaft or deep mining?*fn4 In the latter situation, the C & K Company would be liable for what occurred.*fn5
A party engaged in strip mining must either own (or lease from one who owns) both the estate of coal and the surface estate or own (or lease from one who owns) a coal estate which includes the right to employ the strip mining method, for such a process entails the actual stripping away of the outer covering of the terrain: Owens v. Thompson, 385 Pa. 506, 123 A.2d 408 (1956).
Any interest and rights that the C & K Company has in the tract of land in issue derives from the lease it obtained from the Conners on March 8, 1962. Such lease contains the following pertinent provisions: "Nothing herein or hereinafter contained shall be construed as warranting the said leased premises or the quantity or quality of the coal that may be found in the thirty-three tracts listed under Exhibit 'A' herein. * * * Subject to the exceptions, reservations, covenants and conditions referred to in the preceding paragraph hereof, lessors do hereby ...