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decided: April 14, 1971.


Appeal from the judgment entered in the Court of Common Pleas of Somerset County, No. 195 C.D. 1967, in case of Louis and Anna G. Haydu, M.F. Fetterolf Coal Company, Inc., Helen S. Wagner and Jane Hamer Cooper, executrix.


Ralph B. Pinskey, Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, and Fred Speaker, Attorney General, for appellant.

Joseph N. Cascio, with him Fike, Cascio & Boose, and Frank A. Orban, Jr., for appellee.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Manderino, Mencer and Rogers. Opinion by Judge Rogers. Dissenting Opinion by Judge Mencer.

Author: Rogers

[ 1 Pa. Commw. Page 563]

This appeal is from judgments entered upon a jury verdict after trial of an eminent domain case.

By deed dated May 6, 1948, Lewis Gerosin and Florence, his wife, granted and conveyed unto Kenneth H. Wagner "all that coal known and designated as bed 'E' and all coal above bed 'E' lying, being in, or upon" a tract of land in Conemaugh Township, Somerset County. On May 7, 1948, Kenneth H. Wagner and Helen S., his wife, granted and conveyed unto Kerby N. Hamer an undivided one-half interest in said coal by description identical with that in the Gerosin-Wagner deed. On March 30, 1962, Lewis Gerosin, widower, executed and delivered his deed conveying unto Anna H. Haydu and Louis, her husband, the tract of land from which the "E" seam of coal had been conveyed to Wagner. Following the recital in the deed to the Haydus are the words, "This document may not sell, convey, transfer, include or insure the title to the coal and right of support underneath the surface land described or referred to herein". Kenneth H. Wagner died and Helen S. Wagner was granted letters testamentary. By lease and supplemental lease dated June 8, 1966, Kerby N. Hamer and Marion R., his wife, and Helen S. Wagner, executrix of the will of Kenneth H. Wagner, leased as lessors to M.F. Fetterolf Coal Company, Hamer's and, by representation, Wagner's coal. On either October

[ 1 Pa. Commw. Page 56422]

, or December 22 or December 27, 1966,*fn1 the Commonwealth of Pennsylvania filed a declaration of taking the effect of which was to appropriate and condemn for highway purposes, 19.539 acres of the total of 56 acres owned by the Haydus. The limited access road constructed within the right-of-way thus taken bisects the property leaving 15.124 acres on one side and 21.503 acres on the other.

Before the trial by the traverse jury, Kerby N. Hamer died and he was succeeded on the record by his executrix, Jane Hamer Cooper. Further, prior to trial the interest of Kenneth H. Wagner in the coal was awarded to Helen S. Wagner by the Orphans' Court of Somerset County. Hence the parties to the proceedings were the Commonwealth as condemnor; and Anna G. and Louis Haydu, surface owners; and Helen S. Wagner, co-tenant of the coal; Janne Hamer Cooper, executrix under the will of Kerby N. Hamer, deceased cotenant of the coal; and M.F. Fetterolf Coal Company, Inc., lessee of the coal, all condemnees.

Pre-trial conferences were conducted at which the trial judge advised counsel of his opinion and intended ruling that Section 507(a) of the Eminent Domain Code of 1964, Special Session, June 22, P.L. 84, Art. I, Sec. 101, 26 P.S. 1-101, was not applicable in this case because there were here two fee simple estates, one in the surface and the other in the coal and that, therefore, while the claims of the surface owners and the coal owners might be tried in the same proceeding, they

[ 1 Pa. Commw. Page 565]

    would be assessed independently of each other and not apportioned from an amount determined as the total damages to the property. This the trial judge believed followed as a result of the Pennsylvania cases holding that a conveyance of minerals creates a fee simple estate in the minerals. It followed from this, in the trial judge's view, that the mineral owner held more than "an interest in the property; that he possessed a separate property." At the trial which ensued, the judge's rulings were consistent with this view. The parties claiming the coal (Wagner, Cooper and Fetterolf) were permitted to adduce evidence as to the before and after value of their mineral holding and the owners of the surface (Haydu) as to the before and after value of their land, each without reference to the total amount of damages to the property. The jury was instructed to bring in a verdict described by the trial judge as "double-barreled"; that is, one fixing the damages to the so-called coal estate*fn2 and the other to the so-called surface estate. The Commonwealth as condemnor made proper objections and took proper exceptions to the trial judge's rulings and instructions, contending that 507(a) of the Eminent Domain Code was applicable and that the jury should be instructed first to fix the total damage to the whole property, surface coal and all other attributes, and then apportion the damages between the ...

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