No. 803 April Term, 1979, Appeal from the Order of the Court of Common Pleas of Clearfield County, Civil Division, at No. 77-1624-C.D.
John M. Elliott, Philadelphia, for appellant.
Joseph Colavecchi, Clearfield, for appellee.
Spaeth, Wickersham and Lipez, JJ.
[ 285 Pa. Super. Page 129]
In this case we are called upon to determine whether, under the facts presented, the grantor of the right to mine coal and clay to exhaustion may maintain actions for trespass to land and conversion with regard to the coal and clay so conveyed. We hold it cannot.
[ 285 Pa. Super. Page 130]
The basic facts appear to be undisputed. Appellant Benjamin Coal Company is the ultimate assignee of the rights to mine coal and clay granted under a "lease agreement" executed by appellee Potts Run Coal Company as lessor. This agreement purported to convey to John L. Davis the right to mine until exhaustion, by any process of mining, all the merchantable and mineable coal and clay in certain tracts owned by Potts Run, for a period of three (3) years, and for successive one (1) year terms thereafter.*fn1 The lease
[ 285 Pa. Super. Page 131]
agreement contained a clause prohibiting the sale, assignment or transfer of the lease without the written consent of Potts Run.*fn2 Potts Run later consented in writing to the assignment of the lease to Empire Coal Company. Thereafter, appellant Benjamin purchased all the outstanding stock and assets of Empire including the rights under the lease agreement. The written consent of Potts Run to this transaction was not obtained. Potts Run thereupon notified Empire that the assignment to Benjamin violated the antiassignment clause of the lease agreement and that mining operations should cease immediately. Nevertheless, Benjamin continued to remove the coal and clay from the tracts it had acquired from Empire.
In the present action, which is brought against Benjamin as the sole defendant, Potts Run seeks damages for trespass to land and conversion of minerals. After the pleadings were closed and discovery had been taken, Benjamin sought summary judgment as to both claims on the theory, inter alia, that Potts Run lacked standing to bring the actions. This appeal arises from the lower court's order denying summary judgment.*fn3
[ 285 Pa. Super. Page 132]
The lower court held that the original agreement, although titled a "lease," effected a sale in fee of Potts Run's interest in the described coal and clay. This conclusion is in accord with the established rule in Pennsylvania, Essex Coal Co. Appeal, 411 Pa. 618, 192 A.2d 675 (1963), Smith v. Glen Alden Coal Co., 347 Pa. 290, 32 A.2d 227 (1943), and apparently is not disputed by the parties. The lower court concluded that the interest conveyed by the original agreement "was a fee simple defeasible, subject to: (1) a special limitation (exhaustion of the coal and clay); and, (2) a condition subsequent (assignment without written consent)." Slip Opinion at 10. Despite the fact that Potts Run has never declared a forfeiture under the agreement nor sought to perfect its interest in the property through ejectment ...