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SHAWVILLE COAL COMPANY v. ROGER MENARD (09/26/80)

filed: September 26, 1980.

SHAWVILLE COAL COMPANY, APPELLANT,
v.
ROGER MENARD



No. 804 April Term 1979, Appeal from the Order of the Court of Common Pleas of Clearfield County, Civil Div., at #78-58 - EQU.

COUNSEL

Constance B. Foster, Philadelphia, for appellant.

Joseph Colavecchi, Clearfield, for appellee.

Spaeth, Wickersham and Lipez, JJ.

Author: Spaeth

[ 280 Pa. Super. Page 612]

This is an appeal from an order denying appellant's motion for summary judgment and dismissing appellant's complaint against appellee.

In Bollinger v. Palmerton Area Com. Endeavor, Inc., 241 Pa. Super. 341, 350, 361 A.2d 676, 680 (1976), we stated:

[I]n passing upon a motion for summary judgment, "it is no part of our function to decide issues of fact but solely to determine whether there is an issue of fact to be tried and all doubts as to the existence of a genuine issue as a material fact must be resolved against the party moving for summary judgment. Schacter v. Albert, 212 Pa. Super. 58, 239 A.2d 841 (1968)." Ritmanich v. Jonnel Enterprises, Inc., 219 Pa. Super. 198, 203, 280 A.2d 570, 573 (1971) (emphasis added).

Examined in this light, the record, which is composed only of the parties' pleadings,*fn1 may be summarized as follows.

The action is for ejectment and an accounting. Appellant is a Pennsylvania corporation with its principal place of business in Shawville, Pennsylvania. Appellee is an individual who does business under the name of Menard Dodge, a company located in Clearfield, Pennsylvania. Appellant brought the action when it discovered that appellee was removing coal and other valuable minerals from a tract of land in Clearfield County that appellee owned, but that appellant claimed the right to mine for coal and other minerals.

Prior to 1922, the tract in question was owned by the Five Brothers Coal Company. On July 20, 1922, Five Brothers

[ 280 Pa. Super. Page 613]

    conveyed the tract*fn2 to one Reuben McDonald. The deed, however, contained the following reservation:

Reserving, however, from the above described premises, all the coal and other minerals, together with the right of ingress and regress, into and from said land, for the purpose of examining and searching for and of mining and preparing said coal for market; and removing and transporting the same and other coal, now owned or hereafter to be purchased or operated, by [Five Brothers], its successors and assigns; and for these purposes [Five Brothers] may build railroads, roads and drains upon or under the surface of said land, locate and erect such buildings and structures including miners houses, as may be necessary and proper for the convenient use and working of the mines with the right to deposit the waste or dirt of said mines upon the surface convenient thereto . . . [McDonald] for himself, his heirs and assigns, hereby releasing all claims for damages to said land, the waters therein and thereon and the buildings now or hereafter to be erected thereon, caused by exercising the rights aforesaid and with the right to [Five Brothers], its successors and assigns, to remove from said premises any houses erected thereon by them.

Also reserving unto [Five Brothers], its successors and assigns, all the timber growing or lying on said premises, as long as they are mining or removing the coal therefrom. When said mining operations have been abandoned, the timber remaining shall belong to [McDonald].

On November 26, 1924, Five Brothers granted to one S. T. McClure the rights and privileges reserved in its deed to McDonald. When McClure's will was probated in 1951, his interest in the property passed to his wife Eulala McClure. On December 30, 1955, Eulala McClure granted the River Valley Construction Company

     all the rights and privileges she [McClure] is now vested with, which were reserved ...


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