Mine Hill & Schuylkill Haven Railroad v. Lippincott

The judgment of the Supreme Court was entered,

Per Curiam.

— The effect of the agreement of 20th February 1855, between Dundas and Richardson, the landowners, and the Mine Hill & Schuylkill Haven Railroad Co., was to enable the former and their tenants to mine all the coal and let down the surface, just as if no railroad lay upon this surface. The railroad company was bound, on notice, to take care of its railroad, or remove it to another location on the same land. This removal ivas merely contractual, involving no exercise of the poiver of eminent domain, and is not within the decisions holding the power, when once exercised, as gone. The ability of the company to perform either alternative was a matter wholly within its own knowledge, when, for a valuable consideration, it entered into the contract. The contract yielded to the landowners the right of subjacent support of the railroad, and the right to take all the coal underneath. But the railroad being a creation of law for a public purpose, the public right required the subjacent support to remain, if the railroad company refused to perform its contract. The contract thus concerning the public as well as the company, specific performance could not be compelled, and refusal of the company converted the right of the landowners into a right of action for damages under the covenant. The damages necessarily extended to the value of the coal in place, for the whole was lost to them by the refusal of the company to protect or remove its railroad, and the necessity for the subjacent support. This loss is the same, for the whole of the coal in place, whether it arises from the necessity of leaving the pillars as a support of the railroad, or from a conversion of title by payment of the damages. The cause of action therefore arose when the company refused to perform its covenant.

As to Verner, the tenant, there is then no difficulty. He is entitled, for his own use, to that proportion of the damages, to be recovered by the owners of the land, which his lease conveyed under his right to mine — to wit;, to remove, sell, convert and retain after payment of his rent. The verdict is in solido for the entire damages, and not two verdicts — one for the lessors, and the other for the tenant. The proportions found by the jury were but for convenient distribution, a thing often done where different rights in the same subject exist. The suit was by the covenantees against the covenantors, and the recovery for the entire value of the coal in place. The right of Verner, as use plaintiff, under his lease, is also clear. His lease ivas of an old colliery, consisting of several veins, some of which were worked out, leaving only the pillars. No reservation was made as to the extent of his right to mine; but, on the contrary, his lease bound him to work the mines, “and do all other acts appertaining to the working of the same in the most approved manner, so as to facilitate the taking out of all the coal in the different veins,, with the least possible waste.” This lease must be interpreted in view of the right of the owners, under their contract of 20th February 1855, to take out all the coal and let down the surface, the condition of the old workings where pillars only were left, different veins referred to, covering old and new' workings, and the requirement to take out all the coal with the least possible waste. Yerner therefore became entitled to the tenant’s share of the pillars in the old workings, and was bound to remove them for the advantage of the lessors. • He then was entitled to give the requisite notice to the railroad company to protect or remove its road. He wms rightfully a use party, and had an interest his lessors could not revoke or transfer.

This answers also the alleged effect of the release of Richardson to the railroad company in 1872, during the pendency of this action, which was commenced in 1865, against the railroad company. The railroad company had notice of his lease, and could not take a release in the face of the Us pendens for the breach of its covenant.

It is alleged, however, that William Yerner sold his “right, title and interest in the Glen Carbon Colliery,” to George S. Patterson and Brother, on the 21st September 1864, which operated to transfer his right of action. But there is nothing in the writing purporting to convey a right of action for damages already awarded. It purports to pass his title or interest in the colliery, and the other paper of September 21st 1864, passes also the personal property in use in and about the mines. George S. Patterson, the- assignee, testifies also that he purchased only the interest of Yerner in the colliery and his personal property. He does not remember that the pillars wero mentioned, and did not purchase any claim that Yerner had against the railroad company; did not want to buy a lawsuit; and did not remember whether Yerner stated he had a claim for damages against the company for the pillars. Neither the writing nor the testimony show's a sale of Yerrier’s right of action. None therefore passed to Patterson and Brother. The right to take the pillars did not vest in them, for the same refusal of the railroad company which converted the right to take the pillars into a claim for damages under the covenant, took from Yerner the power to pass title to the pillars to his assignee. The pillars remained ex necessitate under the higher right of the state, for the support of the railroad; the right to retain them being conclusively fixed by the refusal of the railroad company to permit their removal. This refusal converted the right to mine them into a right of action under the covenant, when Yerner gave his notice in 1859, repeated in 1864, before his assignment.

The case has no analogy to a conversion of chattels by recovery of the value. The pillars are part of the realty, and ivere fixed in their condition by the exercise of the right of eminent domain by authority of the state, as a necessity for continued support beyond the power of the landlords or their tenant to remove them. It was only the contract w'hich conferred the right to mine them, and on the refusal to perform it neither Verner nor his assignee could remove them. The right of action- for the damages therefore vested immediately in the covenantees for the use of their tenant. This right of action did not pass by Verner’s assignment of the colliery, and if the pillars cannot be mined by his assignee, as we have shown, the injury is remediless, unless Verner can maintain his action in the name of his lessors, the covenantees. Hence, to say that the right to pillars passed to the Pattersons, the assignees of Verner, which could be mined by no one, is illogical and unsound; and to say that possibly at some future day the railroad track may be removed, and the pillars be mined, is to deny to Verner a right he clearly obtained under his lease, and the breach of the covenant, on a pretext, not only illusory, but- dependent on the act of the very party Avhose breach of covenant is the cause of injury to Verner. This in effect would be a denial of justice, on a theory of the merest shadow of a possibility.

But so far as the landlords, Dundas and Richardson, are beneficially interested in the verdict, it is clear that their interest is bound by the release. Hence the portion of the verdict given for rent cannot be recovered. The separation of the damages in the verdict enables us to modify instead of reversing the judgment. The sum of $8334.33 is therefore struck out of the verdict, and judgment is now entered for the residue, to wit., $43,753.53, for the use of William Verner, at which sum the judgment is now affirmed.

Sharswood and Paxson, JJ., dissent from the judgment, not from its modification.