of the interest of the United Penn Bank in certain real estate situate in Luzerne County. Plaintiff is, and since 1980 has been, engaged in attempting to extinguish an underground mine fire on the land in question. The work has involved the removal of large quantities of coal, some of which has been sold. The Bank has asserted a claim of ownership in part of the premises, and seeks to recover the proceeds arising from the sale of the coal that has been sold, and establish its right to the coal that is stockpiled or in place on the premises.
The plaintiff has filed a motion to dismiss the Bank as a party to this proceeding, alleging that it has no ownership or other interest in the mineral estate of the premises and lacks standing to continue as a litigant. The Bank, on the other hand, has filed a motion for partial summary judgment under F.R. Civ. P. 56(b), in which it asks us to determine that it has title in and to the coal underlying the land which is the subject of this proceeding. Both of these motions will be resolved in the course of our discussion.
The Bank acquired its interest in the property through a mortgage foreclosure against Barbara Coal Company, and whether the Bank is the owner of the coal underlying the premises depends upon the extent of the estate that it acquired when it foreclosed and received a deed from the sheriff. Plaintiff contends that Barbara Coal Company mortgaged only the surface estate in the premise and that only the surface estate was acquired by United Penn Bank as a result of the foreclosure on the mortgage.
Three estates in land are recognized in Pennsylvania: surface, minerals, and the right of support. Captline v. County of Allegheny, 74 Pa. Commw. 85, 459 A.2d 1298, 1301 (1983), op. pending; Pennsylvania Bank & T. Co., Youngsville Br. v. Dickey, 232 Pa. Super. 224, 335 A.2d 483, 485-86 (1975); Stewart v. Chernicky, 439 Pa. 43, 266 A.2d 259, 261 n.I (1970). When a freehold estate in coal is separated from ownership of the surface, the mineral estate is said to be severed. Severance is effected either by a separate conveyance of the coal by the surface owner or by an exception or reservation of the coal estate from a conveyance of the surface. The coal estate is then considered a separate and independent estate in real property which is held by separate and distinct title. Liens against the surface cannot be levied against the mineral estate. Coal Law & Regulation, Theiss, et al. vol. 4, § 80.01, 80-8; Wheelock v. Heath, 201 Neb. 835, 272 N.W. 2d 768, 771 (1978). Once they have been severed from the surface, estates beneath the land can also be conveyed separately without any effect on the surface. Pennsylvania Bank & T. Co., Youngsville Br., supra, 335 A.2d at 485-86; Delaware and Hudson Canal Co. v. Hughes, 183 Pa. 66, 38 A. 568 (1897); Moreland v. H.C. Frick Coke Co., 170 Pa. 33, 32 A. 634 (1895). Therefore, it is possible to have a situation where any of the three estates in land may be owned by persons different from the ones owning the other estates.
After reviewing the chain of title by which the Bank acquired its interest in the premises, and having heard the testimony concerning the chain of title, we have concluded that the surface and mineral estates in the premises have been severed and that the Bank owns only the surface estate in the property.
Prior to 1971, the property involved in this proceeding was owned by Blue Coal Corporation. Blue Coal conveyed numerous tracts to Barbara Coal Company, Inc. by quitclaim deed dated November 15, 1971 (plaintiff's exhibit GG, item 12; defendant's exhibit 103). This deed was restricted to " all of the surface of all of the following described parcels. . . ." (emphasis added).
After describing fourteen separate parcels of real estate the quitclaim deed included the following provision:
"Grantor (Blue Coal) also quitclaims unto said Grantee (Barbara Coal), . . . all coal now remaining in place . . . owned by the Grantor, in, under and upon the surface above described."
There can be no doubt that the parties to this transaction treated the surface estate and the mineral estate separately, or that the two had been severed long before the conveyance.
One and a half years later, on May 2, 1973, Blue Coal executed a second quitclaim deed to Barbara Coal Company, Inc., which was recorded on May 7, 1973 (exhibit E). This deed was designed to correct certain conveyances of the surface made in the deed of November 15, 1971. The deed recited:
"This is a deed of correction, the intent and purpose of which is to more specifically remise, release and quitclaim all of the Larksville Borough portion of the surface remaining in Grantor as of November 15, 1971 and referred to as Parcel No. 1 in the deed from Blue Coal Corporation to Barbara Coal Company, Inc., dated November 15, 1971 and recorded as aforesaid." (emphasis added)