Lance ex rel. Gummey v. Lehigh & Wilkes-Barre Coal Co. , 163 Pa. 84 ( 1894 )

Opinion by

Me. Justice Fell,

This was an action to recover, damages for the alleged breach of a mining lease in which the plaintiff was lessor and the assignors of the defendant were lessees.

The plaintiff’s claim was for: 1st, the amount received by the defendant from the sale of pea and buckwheat coal from 1875 to 1890; 2d, the value of culm or refuse coal mined in the tract leased but removed therefrom; Sd, compensation for the carriage of coal from other properties of the defendant through the mine leased. The action was referred by agreement to S. S. Hollingsworth, Esq., as referee, who found for the defendr ant as to all the claims.

The main controversy was as to the first of these claims, and the provisions of the lease pertinent to it are:

“ 2d. The parties of the second part, their executors, administrators and assigns, shall pay to the party of the first part, his administrators and assigns, twenty-five cents per ton of two thousand two hundred and forty pounds of coal mined from the premises that will pass over a five-eighths of an inch mesh.”

“ 12th. The party of the first part shall have all the culm or refuse coal from the mines, and shall have the right and privilege to enter upon the premises at any time and remove the same, but the said parties of the second part may use so much of thé culm as may be necessary for any purposes about their works.”

The referee found as a fact from the testimony that “ culm or refuse is the coal which passes through the screens of the breakers and is then placed in what is known as the culm or refuse heap. It is unmarketable coal, and may according to the demands of the market, include at one time what is marketable at ■another time.” And he was of opinion “ that within this meaning of the'words thelessor was not entitled by the provisions of the lease to all the coal which passed through a screen with a five-eighths inch niesh.”

This finding of the learned referee seems to us to be fully-sustained by the testimony and the construction of the lease.

At the time the lease was made, 1871, there was not a general market for what is known as pea and buckwheat coal, or for sizes that would not pass over a five-eighths inch mesh. They were not considered of sufficient value to justify the payment of a royalty. They went to the culm or refuse or dirt pile. These piles were of no value,'and a source of annoyance and ■expense to the miner, but the belief existed then as now that in the future means might be devised to utilize the large quantities- of good coal which they contained. Negotiating on this basis of fact and belief, the lessee was relieved from payment for unmarketable coal, and the lessor giveh title to that which cost him nothing and had only a prospective value. The word culm was doubtless brought to the Pennsylvania coal fields by Welsh miners. With them the word has been used to describe an inferior grade of coal of but little value, and it readily •came into use'to define coal not inferior in quality but unmarketable and valueless because of its size.' It was the adaptation of a word to a use closely akin to its original meaning. The words “ culm or refuse coal,” as used in the lease, meant refuse coal—-that is to say, coal refused by the lessee because it- was unsalable, and which of necessity, to make room for the operation of the works, was removed and thrown into a pile.

The lease included all the coal on the land, and the provision as to the sizes on which no royalty.was to be paid was a stipulation in favor of the lessee, not a reservation of anything of value by the lessor.

We are of opinion that all the questions which arose in the case were properly decided by the learned referee, and the ’judg- . meat is affirmed.