Republic I. Works v. Burgwin , 139 Pa. 439 ( 1891 )

OpiNioN,

Me. Justice McCollum :

The agreement which entered into and became part of the decree in partition, must be construed in the light of the then existing conditions. The land allotted to the appellants’ predecessors in title was coal land with an open mine upon it, and a. narrow-gauge railroad on which to convey the coal from the pit mouth to the river. The provisions in the decree which relate to this railroad, and the right to build branch railroads from it, are the source of this contention. The appellants claim that they may, under the branching powers contained in the decree, construct a standard-gauge railroad on Wharton street for general railroad purposes; while the appellees maintain that it was the intention of the parties to the partition to allow the allottees of the coal land to use the railroad then in existence upon it, and to build branches therefrom for the purpose of removing the coal from the tract. It is forty-eight years since the partition was made, and the coal was all mined and removed from the tract twenty years ago. No effort was made to construct a branch railroad until 1887, when the appellants entered upon Wharton street and attempted to build a branch railroad thereon for general purposes. It is not alleged by them that the proposed road is necessary or to be used as an appurtenance to the land allotted to the parties from whom they derive title, but they aver that their branching powers are not appurtenant to that land, nor limited to its needs and uses. It seems clear to us, from the facts found by the learned master, that the purpose of the parties to the partition was to allow the owners of the coal lot facilities for removing and marketing the coal upon it, and that the provisions in the decree relating to railroads were inserted with this object'in view, and are inoperative when it is accomplished. The character of the road then in use, and the number and location of the branches authorized, are in harmony with this conclusion, and in clear conflict with the theory now for the first time advanced by the appellants. A partition of the lands they had inherited from their ancestor was the subject before the parties, and the decree was moulded by their agreement, so as to provide for the convenient and profitable use of the purparts by their respective owners. For nearly fifty years the parties and their successors in title have occupied and used the property in conformity with this construction of the decree. It is a construction which gives effect to the obvious intention of the parties, and is consistent with the terms of the grant when read in the light of the circumstances and conditions affecting the subject of it. We think the learned master has fully vindicated his conclusions by the reasoning and authorities on which his report rests.

Decree affirmed and appeal dismissed, at the costs of the appellants.