Appeal from the Order of the Board of Property of the Commonwealth of Pennsylvania, in the case of GRC Coal Company v. Commonwealth of Pennsylvania, acting through the Pennsylvania Game Commission, dated December 4, 1980.
H. John Drayer, with him Henry Ray Pope, III, Pope and Pope, for petitioner.
William R. Pouss, Assistant Counsel, for respondent.
President Judge Crumlish, Jr. and Judges Blatt and Craig, sitting as a panel of three. Opinion by Judge Craig.
Petitioner GRC Coal Company, as lessee of reserved coal mining rights on a tract of land in Cambria County, has appealed an order by the Board of Property prohibiting it from strip mining coal on the land without the permission of the respondent owner, the Pennsylvania Game Commission.
On May 20, 1941, J. Harrison Westover had conveyed 2178.8 acres*fn1 to the commission,
EXCEPTING AND RESERVING to the grantors herein, their heirs and assigns, all coal and fire clay, with the right to mine and remove same without liability for damages and to use so much of the surface as may be necessary for mining operations, for a period of fifty years from the date hereof.
The issue is whether the language of that reservation authorizes not only deep mining but also strip mining, without any necessity for a special approval by the commission.
In 1943, Westover had executed a "Second Commitment to the Pennsylvania Game Commission," agreeing to deposit in a separate bank account a surface damage royalty payment of 5 cents per ton of coal mined for the reclamation following the conclusion of strip mining operations he was conducting. This arrangement continued when Annie Powell and the Lamp Coal Company, lessee under a 1968 coal lease agreement, resumed mining operations until 1971.
The present controversy stems from Annie Powell's "Assignment Of Leases And Royalty Payments" in 1974 to GRC; the commission refused to allow GRC to strip mine the coal.
Originally filed as a petition for declaratory judgment before this court, GRC's action was transferred by stipulation to the board, which has jurisdiction under ...