Opinion
November 15, 1951.
January 7, 1952.
Deeds — Reservation — Coal vein — Identification — Description — Evidence.
In a proceeding for triple damages for mining coal in a reserved tract, in which it appeared that plaintiff's predecessor had conveyed the coal under many acres of land to defendants' predecessor by deed which "reserved and excepted . . . the coal of bed 'C' of a plot of five acres around the coal bank now opened on said tract of land, the said vein being known and designated as coal bed 'C' ", and which described the reserved five acre tract by metes and bounds, it was Held that plaintiff had failed as a matter of law to establish that not the precise vein of coal mentioned in the reservation was meant but another vein which was commonly mined in the neighborhood.
Before DREW, C. J., STERN, STEARNE, BELL, LADNER and CHIDSEY, JJ.
Appeal, No. 174, March T., 1951, from order of Court of Common Pleas of Somerset County, 1950, No. 288, in case of John J. Kimmel v. Steve Svonavec, Jr., and Steve Svonavec, Sr. Order affirmed.
The facts are stated in the opinion, by BRAHAM, P. J., specially presiding, as follows:
Did the court err in entering a compulsory non suit in plaintiff's action against defendants for treble damages for mining coal in a reserved tract of five acres? The case turns about plaintiff's right to show that not the precise vein of coal mentioned in the reservation was meant but another vein which was commonly mined in the neighborhood.
The reserved tract of five acres was part of a tract of about 100 acres which in 1901 belonged to George Stutzman. He conveyed the coal under 43 acres to Mahlon W. Keim in that year. This deed contained the reservation which is the subject of the present dispute. It is as follows: "There is reserved and excepted however from this conveyance the coal of bed "C" of a plot of five acres around the coal bank now opened on said tract of land, the said vein being known and designated as coal bed "C" said five acres being described as follows to wit: Beginning at a post on line of Solomon Engle thence north sixty-three degrees east six hundred sixty feet (N. 63° E. 660') to post thence south nine degrees east three hundred thirty feet (S. 9° E. 330') to post thence south sixty three degrees west six hundred sixty feet (S. 63° W. 660') to post the said post being distant by line running south nine degrees east nine hundred fifty seven feet (S. 9° E. 957') from the extreme south point of land hereby conveyed thence north nine degrees west three hundred thirty feet (N. 9° W. 330') to post place of beginning. . . . Party of the first part reserves the right to mine the coal of his reservation by means of a drift driven on the north side of said reservation and free from any damage by reason of any necessity to drive the said drift through any vein of coal conveyed to the party of the second part by this deed".
By subsequent conveyances the defendants became owners of the coal conveyed to Keim and the plaintiff became the owner of the coal in the reserved area of five acres.
There are two areas of ambiguity in the reservation according to the plaintiff's contention. There is ambiguity concerning the actual location of the five acre tract on the ground. In the deed from Stutzman to Keim the reserved area is said to be "around the coal bank now opened on said tract". Then follows a description of the five acre tract by metes and bounds. The formal description locates the reservation somewhat north of the entrance to the mine which was opened in 1901. Plaintiff relies upon the formal description, defendants contend for five acres immediately around the entrance.
Plaintiff also contends that a latent ambiguity exists in the language "said vein being known and designated as coal bed 'C'," and offers evidence to show that the parties must have meant by "coal bed 'C' " the common vein mined within and without the five acre reservation. Defendants' insistence upon the language of the reservation develops the principal issue for our decision.
Plaintiff's evidence discloses the existence in the vicinity of a bed of coal known and designated as coal bed "C". Harry A. Dively, a registered surveyor, called by the plaintiff testified as follows: "Q. Where is this mine located? A. Stonycreek Township. Q. In the course of your work have you become familiar with our seams of coal? A. I never made a particular study of the seams. Q. How many seams of coal are there in the neighborhood of this coal? A. A, B, C, C prime, D and E. Q. And when you speak of them that way, are you reading up or down? A. Up. Q. In other words, the lowest marketable coal is the A? A. That's right. Q. Do you know the approximate depth of that? A. No, but it is rather deep. Q. What is the next seam? A. The B. Q. Is that also mined in our county? A. In our county, yes. Q. It is a very important seam, is it not? It is satisfactorily mined? A. Yes. Q. Sometimes called by what other name? The B or Miller seam? A. I don't know. Q. What seam lies above the B? A. C prime. Q. And above the C prime? A. C. Q. And above the C? A.D. Q. What other seam? A. E."
When the witness was asked to identify the seam of coal which the defendants are alleged to have been mining he declined to do so. The relevant testimony follows: "Q. Is this the C or D coal that Mr. Svonavec and his father are mining? A. I didn't say. Q. Do you know? A. No. Q. Do you know, both as an engineer and from your own experience, that this is the D seam of coal? A. No, I wouldn't say that it is the D and I wouldn't say it is the C. Q. Do you mean to say you don't know what it is? A. No. Q. You mean that you can't tell whether it is D or C? A. I can't tell whether it is D or C".
The plaintiff's case is based upon an alleged mining and removal by the defendants of the coal in the five acre tract which was reserved in the deed from Stutzman to Keim in 1901. Yet the testimony quoted above is all the evidence plaintiff has produced to prove that defendants were mining and removing "C" coal from the reservation. Obviously plaintiff's case must fail unless he can show that something other than "C" coal was meant. Plaintiff, although disclaiming any intention of altering or varying the terms of the writing, alleges in the 10th paragraph of his amended complaint that the seam of coal which defendants are mining is the same seam which was opened and visible in the reservation at the time the reservation was created.
The general principles of law governing this situation are well established. In Teacher et al. v. Kijurina, 365 Pa. 480, 486, appears a late statement of them: "In absence of fraud, accident or mistake parol evidence is inadmissible to vary or limit the scope of a deed's express covenants and the nature and quantity of the interest conveyed must be ascertained by the instrument itself and cannot be orally shown: Henry's Trial Evidence (3rd Ed.) Sec. 375 and cases there cited. Furthermore, in construing a deed, as in the case of a will, it is not what the parties may have intended by the language used but what is the meaning of the words: Otis Fuller v. Weaver, 176 Pa. 182, 34 A. 634 (1896); King v. New York etc. Co., 204 Pa. 628, 54 A. 477 (1903); Rosengarten Estate, 349 Pa. 32, 36 A.2d 310 (1944); Myers Estate, 351 Pa. 472, 41 A.2d 570 (1945); Hoffman v. Buchanan, 83 Pa. Super. 454, 457 (1924)".
In the case of Hindman v. Farren et al., 353 Pa. 33, cited by plaintiff, the right to remove coal "through, over and under" the demised premises and to charge a fee for all coal hauled "through" was held to entitle the lessor to a fee for coal hauled above or below the surface. This construction was arrived at as matter of law and upon construction by the court and this does not help plaintiff. Laidley v. Rowe, 275 Pa. 389, also cited by plaintiff, is more nearly in point. There, the deed conveyed "the vein or bed of stone coal in place" and, there being two veins of coal parol evidence was competent to show which one was meant.
The difficulty with plaintiff's case is that it is necessary to assume some ambiguity in order to let in extraneous evidence. There is no uncertainty about a bed of "C" coal when "C" coal existed in the neighborhood. Indeed counsel for plaintiff argues strongly that something other than "C" coal must have been meant because the "C" coal on the reservation is deep and hard to mine. If a subject matter exists which satisfies the terms of the instrument of conveyance, there is no reason for allowing parol evidence: Harvey v. Vandegrift, 89 Pa. 346, 352; Cunningham v. Neeld, 198 Pa. 41, 45.
Two cases very similar to the case at bar are King v. New York Cleveland Gas Coal Co., 204 Pa. 628, 632, and Hoffman v. Buchanan, 83 Pa. Super. 454, 458. In the King case where the grant was the "body of coal" and the "coal underlying" it was held to be error to admit parol evidence to show that only the Pittsburgh seam of coal was meant. In the Hoffman case all of the coal in a tract was reserved except in the upper vein known as the Coal Glen Upper Vein. There were two seams of coal in the neighborhood, "Coal Glen Upper Vein" and "Coal Glen Lower Vein". Both veins underlaid part of grantor's land and were being worked when the deed was given. There was no "Coal Glen Upper Vein" on the land conveyed so the grantee began to work the lower vein which was the top vein on his land. It was, held that parol evidence was not competent to vary the writing nor did it matter that the "Coal Glen Lower Vein" was actually the top vein on his land.
In the case at bar not only was there a vein of "C" coal in the neighborhood which satisfied the terms of the deed from Stutzman to Keim; but, according to admission freely made in oral argument, there was "C" coal on the reservation, an admission which finds guarded expression in plaintiff's brief in this language: "There was no knowledge of any other seam of coal within the reservation, and if there was, it was at least 40 to 50 feet under or below the Stutzman mine or seam". There is no evidence as to lack of the "C" coal at the time the deed was given.
As contended for by the plaintiff the reservation should have read: "There is reserved . . . the coal of the vein which is now open and being worked in a plot of five acres around the coal bank now in operation on said tract".
Plaintiff attempts to justify this construction by claiming the benefit of the principle that "Courts will if they can, give to the contracts of parties the exact effect which the parties gave to them and interpret them just as they interpreted them", citing Kendall v. Klapperthal Co., 202 Pa. 596; Gillespie v. Iseman, 210 Pa. 1; Vulcanite Paving Co. v. Philadelphia, 239 Pa. 524, and Laidley v. Rowe, 275 Pa. 389. Of these precedents it will be found that in the Gillespie and Vulcanite Paving cases the court found no ambiguity in the writing, in Laidley v. Rowe there was a clear ambiguity as to which of two existing veins of coal was meant, neither being mentioned, and in Kendall v. Klapperthal, 202 Pa. 596, the question was as to disregard of the corporate fiction. In Connery v. Brooke, 73 Pa. 80, parol evidence was invoked to determine whether an admitted right of way might be closed by a gate.
Plaintiff's reliance upon interpretation by conduct is based upon certain circumstances: there was an open mine on the five acre reserved tract when the deed was made; plaintiff's predecessors in title and plaintiff have mined coal from the same vein which defendants mine; one of defendants admitted that defendants were mining on the reservation; the defendants took up their tracks on the reservation when the controversy began; one of defendants' predecessors in title tendered to plaintiff a writing which, according to plaintiff, admitted that defendants were mining on the reservation. These circumstances must be examined to determine whether there is sufficient to relieve plaintiff from the burden of showing that defendants have violated their rights by mining reserved coal.
Regardless of how plaintiff states it, his contention clearly involves disregard of the provisions that the reserved coal was "C" coal. But plaintiff's evidence does not indicate a belief by the parties at the time the reservation was created that the "C" coal was the coal actually being mined on the reservation. Under this hypothesis it is impossible to explain the language of the deed: "Party of the first part reserves the right to mine the coal of his reservation by means of a drift driven on the north side of said reservation and free from any damage by reason of any necessity to drive the said drift through any vein of coal conveyed to the party of the second part by this deed". The evidence shows the "C" coal lying under the "D" coal. Thus the parties contemplated going to a lower level to get at the coal of the reservation, just the thing plaintiff seeks to deny.
When we come to consider the conduct of the parties subsequent to 1901, when the reservation was created, reference must be made to the only real ambiguity in the language creating the reservation. The five acres are described in two ways; first, as "five acres around the coal bank now opened", second, by metes and bounds. The ambiguity is not patent but latent because it appears only upon evidence that the description by metes and bounds does not mean to lie around the opening to the existing bank. Thus plaintiff contends for a location of the five acres well north of the opening while defendants contend for a southern location lying about the opening. There is undoubted confusion as to the location of the five acres. Indeed the two maps, one attached to plaintiff's amended complaint and dated May 11, 1950, the other admitted in evidence and dated January 30, 1950, each made by H. A. Dively, registered surveyor, differ widely in the location of the Svonavec mine, in the location of the five acre tract with relation to the road, and in other particulars.
The admission of defendant, Steve Svonavec Jr., that defendants were mining on the reservation appears to relate exclusively to the location of the five acres on the ground, there being no mention of seams of coal. The same thing is true of the agreement prepared by James O. Courtney, defendants' predecessor in title, and tendered to plaintiff. It represents an apparent attempt to compromise the dispute over the reserved coal but was admitted in absence of an objection to that effect. It proposes to recognize as reserved coal the coal removed near the mine opening by George Stutzman and wife.
The present parties are comparatively newcomers to the action. Kimmel and Courtney both took title in 1943, Svonavecs somewhat later. Even if Courtney and the Svonavecs were at first mistaken as to their precise rights in the reservation they are not thereby deprived of what was lawfully conveyed to them. Although there has been and is some uncertainty as to the precise location of the five acre tract, there is no uncertainty about the "C" coal. Plaintiff has failed utterly to prove that the defendants have mined any "C" coal belonging to him. Hence he was properly non-suited . . . .
Plaintiff appealed.
Henry G. Gress, with him Charles F. Uhl and Simon K. Uhl, for appellant.
Clarence L. Shaver, with him Daryle R. Heckman and Shaver Heckman, for appellees.
The order of the court below is affirmed on the opinion of Judge BRAHAM.