Webber v. Vogel , 159 Pa. 235 ( 1893 )

Opinion by

Mr. Justice Thompson,

Mrs. Lewis and Miss Lewis by their deed conveyed to Sutton all the merchantable coal contained in a certain stratum opened, operated and lying beneath the tract specified, together with the free and uninterrupted right of way into, upon and under said land at such points and in such manner as may be proper or necessary for the purpose of taking and carrying away the coal, and also the tracks and tramways in the pit or pits opened in the seam. By deed Sutton granted and conveyed his right and title to the coal to Weinmann of whom appellant (defendant below) Avas lessee. Upon the surface of appellee’s tract there Avas opened a pit out of which the coal was taken. The coal underlying the adjoining tract owned by Weinmann was also leased by him to the same lessee. He claimed the right to take through this pit the coal underlying such adjoining land, to deposit the refuse at its mouth and to carry the coal so mined to a public road over a way or road used by the former owner when he united in himself the title to the appellee’s tract and to that adjoining, and held them as one tract. Appellee (plaintiff below) denied the right to so use the pit which was upon his tract, the surface of which he had bought from Mrs. and Miss Lewis, subject to the grant to Sutton, and because of such use brought suit and recovered in the court below.

Appellant’s right to use the pit is by the terms of the grant confined and restricted to the coal lying beneath the tract in question. Its words are clear and explicit, to wit: “ All the merchantable coal lying and being,” etc., is granted “ with the free and uninterrupted right of way,” “for the purpose of digging, mining and carrying away the said coal.” Under these terms appellant had no right to take through that pit coal from beneath the adjoining tract, except such as may possibly have been required as a part of the mining operation for the purpose of opening up an air-shaft, and necessarily incident to the mining under appellee’s tract. If therefore appellant mined coal from beneath the adjoining tract and carried it through the pit in question he became liable for doing so, and also if in damping the refuse at the mouth of it he did not do so in good faith with a proper regard to the rights of the owners of the surface, or to an extent beyond the purpose of the grant. But it is ably argued that when the former owner (Kelly) owned these tracts adjoining each other, he was engaged in mining the coal beneath them as one tract, and while so engaged used a road or way running from a pit nearly on the line between the tract bought by Weinmann and part of the tract bought by Mrs. Lewis and Miss Lewis, across Weinmann’s tract and near to the pit on appellee’s land, and thence to the turnpike; that when Weinmann purchased his tract, this servitude attached to it, and appellee’s tract was servient to it, and that as such was the case the conveyance of Sutton to Weinmann, did not, it is alleged, operate to destroy his right to use the pit and the road or way to take out the coal from the adjoining tract. Undoubtedly the principle is settled that where an easement or servitude is imposed by the owner on one portion of his real estate for the benefit of another, that a purchaser of it at a private or judicial sale without an express reservation takes the property subject to the easement or servitude : Zell v. Society, 119 Pa. 390. But the application of this principle in the present case fails. By the terms of the grant to Sutton he became the owner of the merchantable coal under appellee’s tract and was entitled to mine the same; but he had no right to mine upon other lands and use the pit for such mining operations, because his grant expressly limits his right to the coal mined and lying beneath the tract in question. Weinmann, standing in Sutton’s shoes as his grantee, cannot successfully assert that, because the former owner (Kelly) held the different tracts as one tract and made use of the road or way as stated, he has the right to tack that use of the road or way to this grant to mine coal, and thus make it the means of mining the coal upon other land and transporting it over that of appellee. The former owner of the land in the exercise of his ownership hauled coal over this road or way which passed by both pits to the turnpike. While an owner cannot accurately be said to have an easement upon his own land, yet he may alter the quality of two parts of his heritage, and having attached particular qualities to a part and having conveyed it, if such qualities are palpable and manifest, the purchaser takes it with the qualities which the owner has thus attached to it. In this case the appellant as lessee claimed the right to mine and take coal out of the adjoining tract through the pit on appellee’s land and over it, although his lessor had accepted the grant which restricts the use of the pit and the right of way to the mining and hauling of the coal which underlies the tract of which appellee’s land was a part. The use of the pit and of the right of way was specifically restricted to the mining and to the hauling of the coal under such tract. Clearly, the acceptance of the grant restricted such use by the lessor and his lessee, and was a complete negation of any claim that the use by reason of the alleged easement appurtenant to the adjoining tract became unrestricted.

Judgment affirmed.