No. 896 APRIL TERM 1977, Appeal from Judgment of the Court of Common Pleas of Allegheny County, Civil Division, at No. GD 75-13083
Arthur J. Schwab, Pittsburgh, for appellants.
Richard G. Kotarba, Pittsburgh, and with him John R. Walters, Jr., Pittsburgh, for appellees.
Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Spaeth, J., filed a dissenting statement. Jacobs, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.
[ 264 Pa. Super. Page 593]
This case arose as an action in trespass brought by the appellants against the appellees for damages which the appellants allege they sustained as a result of the conversion of coal under the land of the appellees. The appellees admit the taking of the coal but contend that they are its lawful owners. Appellees joined Winston T. Roberts and Roberts and Dorn as additional defendants on the basis of their certification to the appellees that they were acquiring good title to the coal at the time of the land purchase. Both groups of defendant-appellees filed motions for judgment on the pleadings. These motions were granted and this appeal followed.
[ 264 Pa. Super. Page 594]
The coal in dispute was mined from certain property located in Kennedy Township, Allegheny County which appellees acquired from Julian T. Beard by deed dated October 16, 1974. The deed conveyed the entire fee without any restrictions, limitations, reservations or exceptions as to the coal estate in the property.
However, the deed from the appellants to Beard dated May 24, 1940 contained an exception and reservation clause which provides the pivotal issue on this appeal. Predicated upon the following clause, appellants claim to own all of the coal of the Pittsburgh Vein underlying the property:
EXCEPTING and RESERVING thereout and therefrom all the Pittsburgh Vein of coal and mining rights as conveyed by W. J. Bealles and wife to Howard R. Park, et al., by deed dated April 27, 1921 and recorded in the Recorder's Office of said Allegheny County, Pennsylvania in Deed Book Vol. 2028, page 569.
The deed of April 27, 1921 to which this clause refers is an earlier deed in the chain of title and runs from W. J. and Marcilla A. Bealles, (hereinafter, Bealles) to Howard R. Park, et al. The coal and mining rights as conveyed in the deed from Bealles to Park are set forth in that document as follows:
All the coal of the Pittsburgh vein or seam underlying all that certain tract of land situated in Kennedy Township, Allegheny County, Pennsylvania, bounded ...