APPEAL FROM THE JUDGMENT ENTERED OCTOBER 9, 1984 IN THE COURT OF COMMON PLEAS OF FAYETTE COUNTY, CIVIL NO. 309 OF 1983, G.D.
Charles C. Keller, Washington, for appellant.
Ira B. Coldren, Jr., Uniontown, for Bridgeview Coal Co., appellee.
Wieand, Cirillo and Johnson, JJ.
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The issue on this appeal is whether a surface lease with mining rights, executed by less than all the owners of the property, survives a partition sale of the property to a third party.
The aggrieved party on appeal is Delta Mining, Inc., which on January 10, 1979 leased a 150-acre tract of land from nine of its ten owners by tenancy in common. The lease conveyed the land together with all rights necessary for the proper mining of coal thereunder, including rights-of-way for transportation and haulage, for a period of three years. The lease further gave Delta the right to extend the agreement on the same terms, "for such time as may be
[ 344 Pa. Super. Page 261]
required to mine, remove and market all of the coal seams under said leased land." The agreement provided for the payment of royalties to the lessors based on tonnage of coal removed from the ground.
The lease did not, however, convey any interest in the coal itself. The coal was owned by another person, who independently contracted to lease a 75% interest in the coal to Delta, with the remaining 25% interest going to Bridgeview Coal Company.
At the end of the option period prescribed in the surface lease, Delta exercised its option and extended the lease for an additional three years. Delta, however, was unable to get the approval of the Pennsylvania Department of Environmental Resources to begin mining, as it had failed to obtain the consent of 100% of the surface owners.
In early 1982, the surface owner who had not joined in the lease, and one of the owners who had, by separate deeds conveyed their one-tenth interests in the tract to Bridgeview Coal Company. Consequently, Bridgeview acquired an undivided two-tenths interest in the land as tenant in common with the remaining eight owners who were parties to the lease with Delta.
In 1983, the eight lessors commenced an action against Bridgeview in the Court of Common Pleas of Fayette County, seeking partition. Delta Mining was also named as a defendant. After a conference, the court determined that an amicable division of the real estate was not feasible, and ordered a sale confined to the tenants in common. At the partition sale Bridgeview purchased the interests of the other eight owners, and the court confirmed the sale.
The parties then sought the court's ruling on the effect of the sale on Delta's lease. The court determined that the lease was null and void as against Bridgeview. After denying Delta's exceptions, the court entered final judgment on November 7, 1984. Delta appeals.
The basic rule of law which the court found controlling is stated in McCullough's Petition, 275 Pa. 456, 458-59, 119 A. 585, 586 (1923):
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In Caveny v. Curtis, 257 Pa. 575 [101 A. 853] speaking through Mr. Justice FRAZER, we laid down the broad principle that "One tenant in common is without authority to bind his cotenants by an agreement concerning the use or control, or affecting the title, of the joint property."
The principle which would prevent one tenant in common from binding the land to the disadvantage of his cotenants by lien or by the creation of a right or easement in the common property would likewise prevent him from granting a leasehold interest in it which would ...