Horning v. Kraus

107 A. 695, 264 Pa. 293, 1919 Pa. LEXIS 639

• Court: Supreme Court of Pennsylvania
• Decided: April 14, 1919
• Docket: Appeal, No. 25
• Status: Published

Opinion

Per Curiam,

That the rights of James H. Hays under the deed for the coal conveyed to him by James McCleery on November 20, 1866, is the measure of the right of the defendants to use the surface now owned by the plaintiffs is conceded. In the first finding of fact found by the learned chancellor below, at the request of plaintiff, and in his own eleventh finding there is set out what the defendants attempted to do when this bill was filed. These findings are not assigned as error. The right of the successors in title to Hays to use the surface is to be found in the following from McCleery’s deed to him: “Together with all the necessary privileges, through and under the lands of the said party of the first part for the opening, mining, airing, draining and transporting to market of said coal hereby sold and conveyed, and also any other coal the said party of the second part now owns or he, his heirs and assigns, may hereafter purchase or acquire. Also the privilege of a road or right-of-way not exceeding.20 feet in width from the main entrance to said coal hereby sold and conveyed, along the line of the Wilson heirs and parsonage lot in the direction of Saw Mill run, said party of the second part restricts himself to one opening on the surface on the south side of said farm for airing and draining.” The use which the defendants would make of the surface is clearly beyond what was contemplated by McCleery and Hays, and certainly is not within the privileges granted by the former to the latter.

The decree is accordingly affirmed, at appellants’ costs.