The opinion of the court was delivered by: CALDWELL
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.
"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)
This deed also contained a separate provision of quitclaim as to Blue Coal's interest in the coal underlying the tract.
It is obvious that when Barbara Coal Co. acquired title, the surface and mineral estates were severed and were conveyed separately. Based on these deeds, and the earlier ones in the chain of title, it would also be apparent to any purchaser or mortgagee that any future conveyance of the surface would not include the mineral estate. Indeed, the defendant's own expert, Robert A. Kley, testified that the coal and surface estates for lots one and two had been severed prior to 1944 when the properties were conveyed by Luzerne County to Charles B. Waller. (N.T. Vol. 2, p. 32). On cross-examination, Mr. Kley continued as follows:
Q. Do you recall saying that the surface and minerals to lots 1 and 2 have been severed prior to 1940 and ...