Clipped From Pittston Gazette
an by to the , . at - .: an that m. the and at be The of for Wil be the ad sa be the will of the i ha.V the UUitltA CASEBECIDED Lehigh Valley (. Has. Right : to Remove Pillars." old get H. this and tne to up of & - - N. - 5 9 H. Ii." EdsaH, Who Sought an Injunc - . . tkm to Prevent the Remoyns qf - - r FUlars from Under His Frop - erty, Loses His Case : Judge Ferris Decides . ' Deeds Reserved 1 '. AU Minerals. A most important and far - reach ing legal opinion was that handed down in the county court yesterday, when the equity case of H. L. Edsall vs. the Lehigh Valley Coal Co. was decided. Mr. Edsall is the owner of valuable property on the back road of Duryea. where the Lehigh Valley Cnl Co. at r ent removing: coul pillars and wher? a number of seriou mine caves have 1 occurred. Some months ago Mr. Edsall's fine residence was so badly damaged that It was ne cessary for him to vacate it. Other property belonging to Mr. Edsall in the' vicinity I3 endangered, and he hrrught an action in court, seeking an injunction to restrain the coal company from removing any more pillais. A preliminary Injunction was granted by Judge Ferris, after which testimony was taken and arguments made by counsel on the motion to make the Injunction permanent. Judge Ferris, In his opinion, decides in favor of the coal company, on the ground that Edyall's d ed gives the right to the surface only, all minerals under the surface having , been reserved. The opln'.on in full Is as follows In his bill the complainant avers that he Is the owner and occupant of a certain lot of land In the borough of Duryea under which the defendant is conducting mining operations and has begun and Intends to complete the removal of pillars of coal needed for the proper support of the surface, The prayers are (1) for an injunction restraining the defendant from so mining and removing coal as to take away the vertical or lateral support from the plaintiff's property or to endanger or disturb the surface of the same and the improvements thereon, and (2) for general relief. Upon admission and proof the ma terial facts are found to be as fol lows: " " First, (a) The plaintiff owns and occupies a lot of surface land in Duryea borough having a frontage of 142 feet on Foote avenue and extend ing thence 465 feet between parallel lines to an alley, whereon are erected valuable Improvements consisting of a large store building, ware house, barn and wagon house, all In actual use by the plaintiff, (b) His title to this lot was derived through mesne conveyances from John S. Marcy who, on and . before March. 30, 1853, was the owner both of the surface and the subjacent mineral strata of a larger larger tract of land containing about 37 acres, and embracing the lot of which the surface is now owned by the plaintiff. Second. Tho said John S. Marcy and his wje by deed dated March 30, 1853, and recorded in the proper recorder's office on the following day, conveyed to One Win. Everhart "all the coal contained in and upon" the said larger tract of land (subject to certain exceptions not material to this controversy) with the right to mine and remove the same "without be coming liable in any manner for damages that may occur to the land by means of said operations or in mining and taking out coal." The coai and mining rights so conveyed., have become and yet remain vested In the - defendant. Third. After this conveyance to Everhart, to - wit, by deed acknowledged acknowledged and recorded April 17, 1865, the sheriff of Luzerne county sold to Joseph Joseph Marcy as the property of the said John S. Marcy "the surface or right of soil" of a tract of land "con taining about 30 acres more or less" and being a part (or possibly the whole) of the same tract the coal under which had been conveyed to Everhart. It is under this sheriff's deed to Joseph Marcy that the plain tiff claims - title. Fourth. Claiming as above stated under the deed to Everhart, the defendant, defendant, a corporation of this Com monwealth, is engaged in mining coal from under the land of the plaintiff, and adjacent lands, and intends to mine and remove the whole or great er part of what remains, the effect of which will be to deprive the property In question of vertical and lateral support, support, injuring if not destroying, the Improv6ments thereon and rendering It unfit for the uses to which it has hitherto been .devoted, viz.: the conducting conducting thereon of a mercantile business business which the plaintiff has built up at that location. As was said in Williams vs. Hay 120 Pa. 485, and reaffirmed In Mad den vs. Lehigh Valley Coal Co. 212 Pa. 63. 65. "It is settled in this state that where one person owns the 'sur face and another person owns the coal or minerals lying underneath; the under or mineral estate owes a servitude of sufficient support to the upper - or superincumbent estate. This principle has no application where the same person Is the owner of both estates, estates, nor does It apply where by the contract between the parties they have covenanted for a different rule. Like any other right, the owner of the surface may part with the right to support by his deed or covenant."' So also, it may be regarded as equally equally settled, that, where an owner of land sells all the underlying coal or minerals, together with the right to mine and remove the same without thereby Incurring any liability for damages to the. surface estate, the grantor parts with his right to support support unless the Instrument contains other provisions from which a different different intent may fairly be implied. Such a covenant refers to a thing In esse and runs with the land (Scranton vs. Phillips 94 Pa. 15, 23). and one who by purchase or otherwise acquires the estate of the surface owner after severance severance with notice thereof, actual or constructive, takes v subject to such a covenant, if there be one, in the instrument by which the severance was effected. That there was such a covenant in the deed of 1853 from John S. Marcy to William Everhart for the coal under the land here in question cannot be doubted. Nor is It open to reasonable question, that this covenant as clearly, indicated ' the in tention of the parties that the mineral owner should have the right to mine all the coal .without obligation to sup port the surface, as did the release of damages covenanted for In Scranton vs. Phillips,, supra, which was "a full and unconditional release and dls charge forever from any liability for any injury that may result result to the surface of the said premises premises from the mining and removal of said coal." . ' Upon execution and delivery of the Everhart - deed a severance between the surface land and the subjacent strata took place. All the coal together together with the right to mine and remove remove it without affording isurface support vested in the grantee, his heirs and assigns, and is now vested in the defendant All that was reserved reserved to John S. Marcy and those claiming claiming under him with notice of the severance, was the surface without the right of support. The Everhart deed was duly recorded ion March 31, 1853. Joseph Marcy, the purchaser of the surface estate at the sheriff's sale In 1865, and all parties claiming under under him. Including the plaintiff, were, therefore affected with constructive notice that the right to support had been parted with. (Delaware & Hudson Hudson Canal Co. vs. Hughes 183 Pa. 66). However the actual fact may have been and however great the hardship to this plaintiff, It must be presumed that he bought with knowledge that he did not acquire by his purchase the right to have his surface land supported, and that he obtained his land cheaper by reason of this disadvantage. disadvantage. Madden vs. Coal Co. 212 Pa. 63, 65. We must therefore conclude as matter of law: First. That by his deed of March 30, 1853, John S. Marcy, being seised and possessed of a larger tract of land embracing that of which the surface is new owned by the plaintiff effected a severance of the surface from the mineral estate, granting all the coal with the right to mine and remove it without affording support to the surface. Second. That the recording of this deed on March 31, 1853, was constructive constructive notice to the plaintiff of the facts above stated and that at the time of his purchase his grantor did not have, could not pass nor he him self acquire, the right to have the surface supported by leaving pillars of coal for that purpose. Third. That the defendant has a legal right to remove the pillars of coal underlying the surface land own ed by plaintiff and adjacent surface land embraced within the boundaries of the land described in the deed to Everhart of March 30, 1853. Fourth. That the preliminary In junction heretofore granted in this proceeding should be dissolved. The motion to continue 13 therefore denied, and the preliminary injunc tion dissolved at the' cost of the plaintiff. plaintiff. Ferris, Judge. H. A. Fuller was counsel for plain tiff, while J. B. Woodward and Sena tor S. P. Wolverton were the defend' ant's attorneys. Madam Norman, the great Euro pean clairvoyant and palmist, 13 S. Main St., second floor, can be con, suited from 10 a. m. to 5 p. m. 11 - tf DISPUTE OVER BOAD. Hearings are now being held in Hazleton to prove that the former legal width of the Hazleton turnpike through Hazle township and West Hazleton was 100 feet, while now It Is only 56 feet It Is claimed that the Lehigh Valley Coal Co. has conflscat ed the balance of the roadway. The Lehigh Traction Co. has raised the question and Is producing abundant evidence to prove Its claims in order to produce the evidence in the in junction proceedings - brought against It by the Hazle township officers.' The township officials claim that the road its present narrow width is not wide enough to allow the traction company to build and operate an ad ditional trolley track on the said road. The traction company classes the coal company as a squatter and expects to win out at the injunction hearing. 1 Clam Bake. At the Port Blanchard Hotel, Wed nesday, July 18. Good music. Chas, Kromelblne. 17 - 2 . LAKE WINOLA. Landlord Frear, of the Winola House, was 1 a visitor in Wilkesbarre and Pittston today. Rev. J. V. Stephens, of Pittston, has purchased the cottage on the Point, adjoining that of Rev. David Jones, of Scranton. Charles H. Mahon, bf Pittston. spent Wednesday here. A number of cottagers who were astir about 10 o'clock last Saturday night witnessed an unusual sight in falling meteor, which illuminated the sky in the west like a flash of lightning. Miss Virginia Oliver Is arranging for her annual entertainment to be given at the Winola House. It will be the pretty operetta, "Cinderella," nd members of the cast are now be ing selected. The Y. M. C. A. boys are camped on the Chapman property, .. on the Point. Four tents are pitched close by a shanty which is used as a kitchen. William Smith, aged about 75 years, died Monday night at his home on the main road between Lagrange and Lake Winola. He had suffered for the past few years with a complication complication of diseases. Deceased had resided In this locality for many years. His w - ife survives, an only son having having died two years ago. The funeral took place this afternoon at 2 o'clock, with Interment in Winola cemetery. For Rent. Houses In West Pittston. $16. $22. - 50, $25. Furnished house $35. Houses In Pittston. $7, - $8, $9, $10, $12. $12.50, $15. $20. Stores and shops, $7, $10. $12, $15, $20, $35, $40. $75, $3. Offices, $6, $10, $12.50, $30. O. B. Thompson. For sale. A lot of high grade pawned watches, of all makes. Real bargains. Elgin and Waltham movements. movements. 15 and 17 Jewels. J. A. Lelb - son, 93 N. Main street. 13 - 5 BevanUie Tailor.' Will be found , m Room No. I, over Antrim's dry oda store. I N. the is Co. of to The the not an ing filed N.