Hosack v. Crill , 1901 Pa. Super. LEXIS 140 ( 1901 )

Opinion by

Rice, P. J.,

All the parties to this litigation affirm the validity of the contract of August 26, 1863, and there has been no failure of performance of any of the covenants that entered into its consideration. The controlling question, therefore, is whether it was a mere license, a mere option, or a sale of the coal in place. That minerals beneath the surface of a tract of land may be coñveyed by deed, distinct from the right to the surface, is, of course, unquestioned. After severance of the surface from the underlying strata, whether by reservation or by express grant, the mineral right is an independent interest in land; it forms a distinct possession; is held upon a distinct title; and is as much the subject of sale, devise or inheritance, and of separate taxation and incumbrance as the surface. The technical words “ grant bargain and sell,” or the like, are not necessary to the creation of a separate estate in the coal, provided the intention to sell the coal is manifest; and it is now well settled that an instrument which is in terms a demise of all the coal in, under and upon a tract of land, with the unqualified right to mine and remove the same, is a sale of the coal in place; and this, too, whether the purchase money stipulated for is a lump sum or is a certain price for each ton mined, and is called rent or royalty; and also, notwithstanding a term is created within which the coal is to be taken out: Finnegan v. Stineman, 5 Pa. Superior Ct. 124, citing Sanderson v. City of Scranton, 105 Pa. 469; Delaware Lackawanna & Western R. R. Co. v. Sanderson, 109 Pa. 583; Montooth v. Gamble, 123 Pa. 240; Kingsley v. Hillside Coal & I. Co., 144 Pa. 613; Lazarus’s Estate, 145 Pa. 1; Timlin v. Brown, 158 Pa. 606 ; Plummer v. Hillside C. & I. Co., 160 Pa. 483; Lehigh, etc., Coal Co. v. Wright, 177 Pa. 387; Hope’s Appeal, 29 W. N. C. 365; Fairchild v. Fairchild, 7 Central Repr. 873; s. c. 9 Atl. Repr. 255. As between the parties to the instrument, and their privies, a conveyance of the underlying coal — the grantor retaining the surface — effects severance in title; under our statute the recording of the conveyance takes the place of a livery of seizen, and the subsequent possession of the holder of each estate follows his right: Finnegan v. Stineman, supra; Eckman v. Eckman, 68 Pa.460; Delaware & Hudson Canal Co. v. Hughes, 183 Pa. 66. In the instrument under consideration all the formalities of a conveyance in fee intended for record were observed, and it was duly recorded. The subject-matter of the grant was the coal itself and not a mere license to mine coal upon compliance with certain conditions. Whilst the technical words “grant, bargain and sell ” are not necessary to the creation of a separate estate in the coal, yet where they are used and words of inheritance are added, as was-the case here, it is to be presumed, unless a contrary intent clearly and affirmatively appears, that the parties intended them to have their ordinary legal effect, which is to vest in the grantee the entire ownership of the coal in the land described. And, where the technical words to convey a fee either in the surface or the underlying minerals are used, this presumption cannot be overthrown by an argument based solely on the supposed inadequacy of the covenants of the grantee as a principal consideration for a conveyance in fee. The distinction above suggested is not to be lost sight of in the consideration of the cases on the subject. It was distinctly recognized in Grove v. Hodges, 55 Pa. 504, as we understand that case. Nor is the foregoing conclusion in conflict with the ruling in Clement v. Youngman, 40 Pa. 341, which was decided upon its own peculiar facts, and not upon a principle which controls in the present case. Whether or not, in the circumstances existing in 1863, the grantor made a wise bargain, we are not called upon to say, but the able argument of the appellant’s counsel has failed to convince us that he did not intend what the language of his deed imports, namely, to pass the fee in the coal to the grantee.

We concur as to the main question in the conclusion reached by the learned judge of the court below, and substantially for the reasons given in his clear and satisfactory opinion. We do not deem it necessary to add anything further to what he has said. It follows that the coal under the fifty-acre tract devised to Clarissa Barker did not pass by the devise and that the royalties accruing after the death of the grantor, being purchase money for the coal sold, are distributable as personalty according to the provisions of his will.

Judgment affirmed.