Penman v. Jones

Dissenting Opinion by

Mr. Justice Moschzisker :

The material facts in this case may be summarized thus: In 1873, A, a corporation, the owner of a certain large tract of land, sold and conveyed a part thereof to B, reserving to the grantor, its “successors and assigns,” the underlying or mineral estate, in apt words creating a fee therein, with the right to mine without “incurring, in any event whatever, any liability for injury caused o-r damage done to the surface of said lot.” Eighteen years after this, A sold and conveyed to- C, a corporation, all the coal under its land, of the surface of which B’s lot formed a part, other portions of the superincumbent estate remaining in the grantor. While the deed last mentioned conferred the right “to mine and remove the said coal,” yet no express right was therein given to- let down the surface of any part of the tract; but the instrument of conveyance did “grant, bargain and sell” the described premises, “Together with all and singular the......appurtenances......belonging to the said......property or in any wise appertaining to the same.” Twenty-four years thereafter, A executed a deed to D, a trust company, for all its right, title and interest, “of every kind and nature,” in, inter alia, the lot previously sold to B, and “the coal and minerals underlying the same,” Sub4 sequently D quitclaimed to E, who.then owned the lot in question, all its interest therein, with the express purpose of vesting in the grantee, “his heirs and assigns, inter alia, the right or privilege of surface support hitherto withheld” by A, the grantor’s predecessor in title, and “to release and discharge the party of the second part [grantee], his heirs and assigns from any and all waivers of said right of surface support, so.far as the said party of the first part [grantor] has a legal right to vest said right of support and to release and discharge the said party of the second part from the effect of said waiver.”

The prime question to be decided is, did the deed from A to C pass to the latter the right to let down or disturb the surface of the lot previously sold by the former to B ? For, if such right passed to C, then, of course, A could not subsequently convey it to D, and the latter could not quitclaim the right to E.

Since Jones v. Wagner, 66 Pa. 429, it has been established with us that, upon a severance of the surface and underlying mineral estates, no right vests in the owner of the latter to let down or disturb the former, unless explicitly contracted for; that, in the absence of such express contract, “where there is a separation of the minerals from the surface, the owner of the mineral estate owes a servitude of sufficient support to the superincumbent estate”: Graff v. Scranton Coal Co., 244 Pa. 592, 596. It is equally well established, however, that the right to let down the surface may, by express contract, be vested in the owner of the mineral estate: Scranton v. Phillips, 94 Pa. 15; Madden v. Lehigh Valley Coal Co., 212 Pa. 63; Miles v. Penna. Coal Co., 217 Pa. 449; Weaver v. Berwind-White Coal Co., 216 Pa. 195; Kellert v. Rochester & Pittsburgh Coal & Iron Co., 226 Pa. 27; Stilley v. Pittsburgh-Buffalo Co., 234 Pa. 492; Graff Furnace Co. v. Scranton Coal Co., 244 Pa. 592; Kirwin v. Del., Lack. & Western R. R. Co. (No. 1), 249 Pa. 98; Miles v. N. Y., Susquehanna & Western Coal Co., 250 Pa. 147.

Under the authorities just cited, there can be no doubt that the language employed in the deed, from A to B was sufficient to retain, or vest, in the grantor the right to let down the surface of the lot in controversy; but the question arises: Hoav shall the character of that right be defined? If it must be classed as an “easement appurtenant,” then it would pass by a subsequent conveyance of the mineral estate (Cathcart v. Bowman, 5 Pa. 317; Horn v. Miller, 136 Pa. 640, 654; Richmond v. Bennett, 205 Pa. 470, 472; Held v. McBride, 3 Pa. Superior Ct. 155, 158; Citizens’ Elec. Co. v. Davis, 44 Pa. Superior Ct. 138, 142; Dority v. Dunning, 78 Maine 381, 384; Winston v. Johnson, 42 Minn. 396, 402), unless some exceptional rule applies to an easement of this particular hind. An easement “is generally defined to be a liberty, privilege or advantage which one may have in the lands of another without profit” : Big Mountain Improvement Co.’s App., 54 Pa. 361, 369. Jones on Easements, at p. 4, states their qualifications thus: “First, they are incorporeal ; second, they are imposed on corporeal property; third, they confer no right to a participation in the profits arising from such property; fourth, they are imposed for the benefit of corporeal property; fifth, there must be two distinct tenements- — the dominant, to which the right belongs, and the servient, upon which the obligation rests.” Immediately thereafter the same authority says: “An easement, aside from an easement in gross, can exist only as it is appurtenant to land; it cannot exist unconnected with the land to the enjoyment and occupation of which it is incident. A right in the land granted for the personal use and benefit of an individual is a personal privilege, which is called an easement in gross, as distinguished from the privilege usually termed an easement, which is a privilege incident to particular land. Whether a privilege is a personal right, or is appurtenant to some estate, and therefore an easement, is determined by a fair interpretation of the instrument creating it, aided, if- necessary, by the situation of the property and the surrounding circumstances” (see id., Secs. 28, 47). Thus it may be seen that the right created in the grantor by the deed from A to B has all the attributes of . an easement appurtenant to the mineral estate vested in the former. It is an incorporeal right attached to corporeal property, and, when brought into legal existence, generally speaking, it would pass upon a conveyance of the latter under the general description of “appurtenances”: id., Sec. 20, et seq., and cases hereinbefore cited.

While it is well established that a right in the owner of the mineral estate to let- down the surface will “not be implied from language that does not necessarily .import it” (id., Sec.' 599; Pennsylvania cases already cited), yet we find no ruling anywhere to the effect that, after such right has been created by apt and sufficient language, and vested in the owner of the mineral estate, it will not pass upon a conveyance of that estate like every other easement appurtenant thereto, particularly when, as in the present instance, the deed contains full and explicit language sufficient to include all appurtenances of every kind and description. A right of the character of the one with which we are dealing, Avhen properly created, adheres to the estate for whose benefit it was brought into existence, the same as covenants running with the land (Scranton v. Phillips, 94 Pa. 15, 23), and, in order so to do, it need only be convenient, not necessary or essential, to the enjoyment of the dominant estate (Zell v. Universalist Society, 119 Pa. 390, 402; Manbeck v. Jones, 190 Pa. 171, 173; Hunstock v. Limburger, 115 S. W. Repr. 327, 329; Dority v. Dunning, 78 Maine 381; Cihak v. Klekr, 117 Illinois 643, 653; Pettingill v. Porter et al., 90 Mass. 1, 6; see also Jones on Easements, Sec. 29). To. my mind, clearly, the right to let down the surface, retained in 1873 by A, vested in an easement appurtenant to the mineral estate (Jones on Easements, Sec. 90), and this passed under the general terms of its subsequent conveyance to C; hence, A could not afterwards deal therewith, and its deed purporting áo'to do necessarily failed of that effect.

I see no merit in the contention that because a grant of the coal, without more, does not confer a right to disturb the surface of the overlying estate, therefore such a grant could under no circumstances be held to pass a previously created right, or easement, so to do, even where, as in this case, the right to let down the surface had been appurtenant to the mineral estate for a period of eighteen years before the grant in question; nor do I see any material significance in the fact that, in this particular instance, the easement happens to be appurtenant only to the mineral estate underlying certain portions of the surface of the property covered by the grant. Where one is the owner of an entire property, both the surface and underlying estates, of necessity no easement, either of the right of support or the right to let down the surface, can exist; for such incorporeal rights can be brought into being only upon a severance of the one estate from the other (Jones on Easements, Secs. 24, 597 and 835; Kieffer v. Imhoff, 26 Pa. 438, 442; Coleman’s App., 62 Pa. 252, 274; Zerbey v. Allan, 215 Pa. 383, 387; Capron v. Greenway, 74 Md. 289, 293), and then, if of the latter character, the right must be expressly and plainly granted. Here the grant under discussion, i. e., the deed from A to C, transferred the mineral estate under a large tract of land, of which the lot previously conveyed to B formed but a small part, and it is plain that. this deed did not grant to C the right to let down the surface of any land where an easement to that effect had not previously been created, for the words of the instrument did not expressly confer the right so to do; but it is equally plain that where such a right already existed it was an easement appurtenant to the estate conveyed and, as such, it passed therewith. The judgment entered by the court below rests upon the theory that, since the deed from A to C did not expressly give the right to let down the surface of all the property conveyed, it could not pass an easement previously created to' disturb the surface of a particular portion thereof; but, as I have endeavored to show, this position is not in accord with the relevant rules of law, and no authority has been cited which either directly or by necessary implication sustains it.

Graff Furnace Co. v. Scranton Coal Co., supra, in no sense rules the present appeal; in that case there was no question of a previously existing easement appurtenant to the estate granted. The Graff case was a proceeding in equity to restrain the owner of the underlying mineral estate from disturbing the plaintiff’s land. The surface of the lot there in controversy overlaid part of the coal conveyed by the deed from A to C, referred to in the present case. After disposing of its mineral estate to C, A sold and conveyed to a certain predecessor in title of the plaintiff in the Graff case the lot there in question, “excepting and reserving” the minerals underneath the same, with the right to mine without incurring liability for injury to the surface;' this exception being made expressly for the benefit of the grantor and also of “all persons who may have derived title to said coal......from the party of the first part [the grantor].” In dismissing the bill, we ruled that the words of this latter deed were controlling, that the' exception therein of the right of surface support governed, and that it was not necessary to determine in whom that right was vested, so long as it was apparent that it did not vest in the plaintiff. In the .course of the opinion, however, this significant passage occurs: “The owner of the entire estate may likewise grant the surface of the land and reserve the mineral estate with the right to mine and remove it without liability for any injury or damage done to the surface, and in such case the grantor or those claiming through him may mine and remove all the coal without being compelled to support the surface.” In the case at bar, the present owner of the coal is one claiming through such a grantor as just described; and I cannot agree that the latter, when it stipulated for the right to let down the surface, became a mere licensee of its grantee. One may have a license conferred upon him, but I know of no authority which holds that a grantor of real estate may by words inserted in his own deed retain or confer a license upon himself, in or over the subject-matter conveyed; although, of course, it is well established that he may thus create an easement.

For the reasons stated, I mark my dissent.

Stewart, J., joins in the above dissent.