Judgment reversed, and a venire facias de novo awarded.

Opinion by AGNEW, C. J. SHARSWOOD, J., absent.

Jan. '76, 147.

Feb. 19 & 20, 1878. Freck v. Locust Mountain Coal Co.*

Trespass-Mining rights-Uncertainty of description-Rule as to unintentional trespass by tenant where the landlord is the owner of the adjoining property.

The rule that the lessee of mining rights must ascertain the boundary of the rights granted to him at his peril does not apply where the lessor is the owner of the adjoining property, and might have protected himself by covenant against the injurious consequences of possible trespasses. In such a case the lessor can only recover for damage arising from criminal negligence or improper mining.

Error to the Common Pleas No. 2, of Philadelphia County.

Case, by the Locust Mountain Coal Company against Joseph M. Freck. Plea, Not guilty. On the trial (before MITCHELL, J.) the following facts appeared in evidence :

The plaintiff is the owner of two adjacent colleries in Columbia County, of which one known as Centralia was leased to the defendant, and the other, called Hazeldell, leased to Robert Gorrell & Co.

The lease to the defendant was for the term of ten years from Jan. 1, 1862, and was for the right and privilege

"to dig, mine and take away coal as their own property from the veins of coal above and below the water level as hereinafter limited and described, viz., All the coal in the south dipping vein, known as the Mammoth Vein, in the Centralia or Centreville basin, in the county of Columbia, and State aforesaid, beginning at the east line of the lands of the party of the first part and following the vein westward one mile and one third of a mile; also all the coal in all other south dipping veins in said Centralia basin within the limits of the run herein before named, which the parties of the second part shall cut by tunnel, and work on or before the first day of January, 1866."

The lease to Gorrell was of "all the coal in the north dipping vein." The rent paid by Freck was 25 cents per ton; that paid by Gorrell & Co. was 35 cents per ton. These veins form what is called a basin, oblong in shape and many miles in length, the north and south sides sloping towards the bottom, a cross section of which somewhat resembles the letter V, as shown in this diagram:—

*For a report of a former trial of this cause in the old District Court, with plans of the mines, etc., see I WEEKLY

NOTES, 124.

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The coal lies between thick seams or layers of slate, like the leaves of a book between the covers of it. The covers represent the slate. That part of the vein or side of the basin which inclines or dips to the north is called the "north dip," and the other side of the basin or part of the vein which inclines to the south is called the "south dip." The lowest point, or line, where the two dips meet, is called the synclinal axis.

The synclinal axis was the boundary between "Centralia" and "Hazeldell." Each of the leases conveyed the right to mine down to the synclinal axis. The trespasses complained of consisted in Freck's having crossed the line with his gangway, and in the damages resulting therefrom.

It was proved that Freck had mined across the synclinal axis, and that the mines had thereby become united; that Freck's workings were at this point of contact lower than those of Gorrell & Co., and that the waters from Hazeldell had flowed into Centralia. The plaintiff further proved that from time to time connections occurred in other places; that by reason of the floodings, an increase in the expense of pumping Centralia to the amount of $500 per month, and additional machinery of very great cost was rendered necessary; that coal to the amount of 7000 tons had been wrongfully taken by Freck from Hazeldell, upon which the difference of royalty of 10 cents per ton was claimed.

The defendant proved that the determination of the position of the synclinal axis was a matter of great doubt and difficulty; that it was impossible to determine where was its true position until the mining operations had reached it, and offered in evidence plans to show how many times plaintiff's own engineers had mistaken it. That the difficulty could have been avoided by Gorrell changing the grade of his gangway or by a system of troughs.

It was further shown that under a clause in the lease reserving the right to the plaintiff "by its officers, engineers," etc., to enter upon the vein, Thomas R. Stockett, the engineer and agent, had at various times entered and surveyed the

course, etc., and that on April 22, 1871, he sent to Freck the following notice :

"A part of the breasts turned on the south side of your east gangway of 2d lift on the Mammoth Vein, is beyond the limits of your lease, and consequently within the limits of another lease. The object of this notice is to prevent any infringement on the rights granted to the lessees. Yours respectfully,


Messrs. J. M. FRECK & CO.

Lessees of Centralia Colliery." Stockett, in a letter to the president of the company on the same day, said that Williams, Freck's engineer, had announced his belief that there was another south dip between his breasts and Gorrell's north dip." Stockett said that "it was possible but not probable that there may be a small basin or depression between the collieries." No direction was ever given Williams by the plaintiffs as to whether he might or might not pursue this supposed dip. The actual conjunction of the mines was caused by Gorrell & Co., whose workings reached the point of contact after those of Freck. It was then seen that the grade of the gangway of Hazeldell was lower than that of Centralia. Gorrell & Co. did not, however, attempt to make these grades conform, but drove their gangway still lower.

is liable for any damage the owners of the colliery necessarily suffered in consequence. Affirmed. (Fourteenth assignment.)

(6) If the Centralia colliery, by means of the connection thus formed, became liable to the flow of water from Hazeldell and the risk of that liability diminished the renting value of Centralia, and the lessors sustained a loss, the defendant is liable for the amount of the loss thereby suffered by the landlord. Affirmed. (Fifteenth assignment.)

Defendant's counsel requested the Court to charge (inter alia) :—


(1) That it appears, by the lease from plaintiffs to defendant, that the south dipping veins were leased to defendant, and by the lease from plaintiffs to Gorrell, that the north dipping veins were leased by plaintiffs to Gorrell, and it is a conceded fact that these veins meet and intersect at the bottom of the basin; that if the jury believe that plaintiffs thus, by their own act, provided for and authorized the interference and intersection of the two workings, and the consequent opening of communication between the two mines, and that the workings of Gorrell, closely approaching the bottom of the basin, would, in a very short time, have produced such connection of the two mines, plaintiffs cannot recover for the consequences of such connection. On the trial defendant's counsel asked Louis Answer. I affirm that point, so far as it applies A. Riley (a mining engineer called by the plain- to the state of facts which have been proved tiff): "At the time Gorrell with his gangway before you. It undoubtedly is a supposable case, broke into the breast, could not the difficulty that if the defendant had mined the south diphave been avoided by a fair elevation of his gang-ping vein down to and along the axis, which he way, so as to have avoided the gangway of Mr. had a right to do, and if Gorrell had mined the Freck?" Objected to. Objection sustained. Exception. (Third assignment of error.)

It was not denied that Freck had paid for the coal mined by him from Hazeldell.

Defendant's counsel also proposed to ask Robert Frazer (an expert) on cross-examination: "State, when the gangway struck the rise or pitch, where it turned or deviated first towards the south in following the bottom slate, whether they did not pursue the best and most approved methods of determining the synclinal axis by the course of the gangway itself?" Objected to. Objection sustained. Exception. (Sixth assignment.)

Plaintiff's counsel requested the Court to charge, inter alia::

(2) By the lease from the company to Gorrell, no right whatever was reserved to prevent Gorrell turning the water of the Hazledell in Centralia, and the only right they had in that respect was precisely what they would have if they had not been Gorrell's landlord. Affirmed. (Eleventh assignment.)

(5) If the defendant extended his workings beyond the boundary line fixed by the lease, and thereby the colliery leased to him became connected with the adjoining colliery, the defendant

north dipping vein down to and along the axis, which he had a right to do, there would have been along the entire course of that axis, if it was opened at all, a joint gangway or opening of these two mines. That would have been a perfectly legal act, I think, of both the defendant and Mr. Gorrell, and for any injury that might have resulted from such an opening as that, the plaintiff would have no remedy against Freck. But, if you are of opinion that the opening which was made was a different kind of opening from that, and produced different consequences, if it was an opening caused by the trespass of Mr. Freck beyond his own boundary, then the applicability of that point does not arise, and you should consider the case independent of that.

(2) That if the jury believe the best scientific as well as the best practical methods known to the art of mining, were employed by defendant, in working the south dipping veins as he approached and arrived at the bottom of the basin, and that such scientific and practical methods faithfully employed, would not have enabled defendant to make any more accurate ascertainment of the true position of the synclinal axis, than

he did through his workings, then there can be | trespass for which the defendant is liable, if any no recovery by plaintiff.

(3) That the lease is to be interpreted in the light of the best methods known to the science of mining, and that both parties to it are to be understood as having these in view when they contracted, and that if the veins were mined only in the methods and to the extent which such scientific methods prescribe, there can be no recovery by plaintiff.

damage has thereby occurred to the plaintiffs.] Verdict for plaintiff, $19,000, and judgment thereon. Defendant took this writ, assigning for error, inter alia, the admission and rejection of testimony as above excepted to; the answers to plaintiff's and defendant's points, and the portions of the charge inclosed in brackets. F. W. Hughes (with him E. O. Parry), for plaintiff in error.

Answer. Neither of these points are accurate The grant from the company to Freck was statements of the law. They are the theory" the right to dig, mine,' etc. This was the which the defendant's counsel has argued to you, but they are not the theory which I think governs this case.

When a person approaches a point in which his rights come to be in doubt, and it is a matter of difficulty and danger to ascertain whether he is exactly right or not, it is his duty to stop short or to go on at his own risk. If he does go on, not having any certain light, he is responsible for the consequences.

In the general charge the Court said, inter

alia :—

This lease gave as a boundary of the premises leased to the defendant, on the south side (and that is the only side with which we are concerned in this controversy), what is called the bottom of the basin, or more technically and perhaps more accurately by some witnesses, the synclinal axis. This axis, of course, you will understand is an imaginary line, but it is the line where the north and the south dips come together, where ever that may be. This line, theoretically, is as fixed and definite as any boundary line can be; but, practically, it is a matter of very considerable doubt and difficulty to locate it exactly upon the land. Especially is this the case in the early part of the workings of a mine, before the bottom of the basin, or what may be called the debatable ground, through which this axis runs, has been laid open to admit of accurate measurement by scientific means. [Now, the difficulty in knowing where the correct line is, which forms the boundary of the defendant's lease in this case, does not in any way affect the rights of the parties.] It is not your business, as members of the jury, nor is it mine, to make contracts for other people, or to say that they ought to have made their contracts different, in order to avoid disputes. That was their own business. The parties in this case have made their contract, and your duty and mine is to see that each performs his proper duties, and obtains his proper rights under the contract which they have made.

[The synclinal axis, therefore, was the boundary which defined the defendant's rights in this case, and working across that boundary, whether it was easy or difficult to ascertain, whether it was done intentionally or in ignorance, was a

grant of an incorporeal right, it was not a lease, but a mere license to mine.

Bainbridge on Mines, *117.

Act of April 11, 1848 (P. L. 533).
Brandt v. McKeever, 6 Harris, 70.
Iron Co. v. Iron Co., 8 Casey, 241.
Funk v. Haldeman, 3 Sm. 229.

In granting the right to mine coal from the south dip, the company must be held to have granted the right to make use of so much of the land in which the vein was situated, whether on the surface or under the surface of the ground, as was necessary for mining coal in the usual proper and workmanlike manner of mining. 3 Cruise Dig. Tit. xxiv.

Clark v. Cogg, Cro. Jac. 170.

An inconvenience to approach a grantee's land may be so great as to amount to that necessity which the law requires.

Washburne on Easements (3d ed.), 547.
McGuire v. Grant, 1 Dutcher, 356.
Richards v. Rose, 9 Exch. 218.
Dundas v. Muhlenberg, 11 Casey, 35L
Lawton v. Rivers, 2 M'Cord, 445.


gangway then was nothing more than such a way of necessity as the law allows.

The company by its agents knew the position of the gangway, and, if they did not object, they must be presumed to have approved of it.

Carr v. Wallace, 7 W. 400.

It must not be forgotten that the junction of Centralia with Hazeldell was the act, not of Freck, but of Gorrell & Co. Now their right in Hazeldell was no more than a license, the property in the land remained in the plaintiff below whose duty it was to have prevented their improper mining. But further, it was distinctly proved, that Gorrell & Co. could have prevented the flooding of the mines by a change in the grade of their gangway, and this change they should have made.

Locust Mountain Co. v. Gorrell, 29 Leg. Int. 101,
March 29, 1872.

Coal Co.'s Appeal, 4 Sm. 189.

Clegg v. Dearden, 64 Eng. C. L. 576. A. Sydney Biddle and R. C. McMurtrie, for defendant in error.

The grant to the defendant below was a lease, because rent and a right of entry were reserved. As to the doctrine of the way of necessity, it is not easy to see how a right can be raised by mere


implication which so materially affected the ad- | the damage complained of the result of Freck's joining tenant, nor could Freck's rights have wilful trespass upon the adjacent lease? been the greater from the mere accident of his southern boundary, the synclinal axis, could by landlord being the owner of the adjoining pro- no human possibility be ascertained until develperty. It is asserted that the landlord knew the oped by the proper workings. Yet Freck had position of the gangway and approved it, but it is the right, under his lease, to go to that line, and likewise asserted (and this is the true view) that this necessarily involved the further right of asthe position of the synclinal axis was unascer- certaining this line, by the best means in his tained; the landlord was, therefore, ignorant that power. It is here that the Court Below comthe tenant was exceeding his rights. The argu-mitted an error, in treating the case as one bement that, Freck having reached the bottom first, tween distinct land owners; in such case the Gorrell was bound to change his course of min-doctrine, that the lessee must ascertain the dividing, is entirely untenable; it is impossible that ing line at his peril would be correct, and though the wrongful acts of one of two adjoining tenants he passed over it with the best possible intentions should curtail the rights of the other. he would nevertheless be a trespasser. Not so when the lessor not only gives his tenant the power, but makes it his duty, to explore and mark a theoretical line upon his own premises. In such case the tenant cannot be treated as a trespasser if, in an honest attempt to ascertain that line, he should chance to pass over it; for the right to do what is necessary in order to find and fix that line is implied in the grant by which it is made a boundary. Freck had a right to ascertain his southern line, and if he did no more than was necessary for this purpose, he was not a trespasser. The difficulties in the accomplishment of this result become apparent by a glance

plottings for the synclinal axis in no less than five different plans. It is thus apparent that the true line, the one finally adopted, was only conclusively settled after Freck's workings had enabled the engineers to ascertain its true location. But there was not a day, not an hour, during the pro

May 6th, 1878. THE COURT. The principles as well as the main facts of this case are few and simple. The whole body of coal mentioned in the leases with Freck and Blackiston, and with Gorrell & Co., the former dated August 18th, 1862, the latter January 11th, 1868, belonged to the Locust Mountain Coal and Iron Co. The general vein or stratum thus leased, lay in the Centralia or Centreville basin, and a cross section of it, in shape, resembles very much the letter V, except that the vein is rounded at the bottom. The northern part, called the "South dip," was that leased to Freck & Blackiston-at the map before us, on which we observe the the southern side, or "North dip," to Gorrell & Co. It follows, that the line dividing these two leases, was the middle line of this basin, or that from which the two sides begin to ascend, called technically, the synclinal axis. Either or both these parties had the right, under their respective leases, to take out all the coal down to this line.gress of this work, when this company had not The coal company was the common lessor of the power to put an end to these operations on both parties, and hence, the rules governing ad- the discovery that the lessee was working beyond jacent mines when owned by different owners, the bounds of his lease. In that lease it had recannot apply to the company plaintiff, for having tained full supervisory powers; the work was the power so to do, if it neglected to protect it- done under the constant inspection of its own self by covenant, it cannot plead rules resulting engineer, and in case of dispute, it had the power ex necessitate rei, as against its own grant. It fol- to settle all matters by arbitration. And if, under lows that if both parties in strict accordance with such circumstances being fully and accurately inthe terms of their several leases, had worked formed of Freck's operations, it chose to stand down to the synclinal axis, they would have by, and permit him to prosecute his researches, brought the two mines together, and so produced according to the best of his judgment, at the same every result now complained of, except such as time receiving the products of his labor as so may have arisen from the criminal negligence of much rent under the lease, by what rule of jusone or both of the lessees. The company, there- tice can it now treat him as a trespasser? If we fore, has no right to complain of the mere con-examine the notice of Mr. Stockett, the plaintiff's junction of these workings, for this is but the engineer, dated April 21st, 1871, when Freck's result of its own grant, and it follows, that unless gangway had already been driven south of what it can show some wrong done in the manner in afterwards proved to be the true synclinal axis, which Freck conducted his workings, it has no we find two things worthy of observation: (1) standing to maintain this suit. Now as there is he is notified, not that his gangway, but "a part no question as to the character of Freck's work, of the breasts turned on the south side of your so far as his own lease extended, our inquiry east gangway of the second left on the mammoth must be limited to a single point, to wit: was vein, is beyond the limits of your lease;" (2)

that the object of the notice is to prevent any infringement on the rights granted to the lessees."

ant took from the north dip, and that which came from his own workings, as measured by the prices fixed in the two leases; we believe some ten cents per ton.

Furthermore, it will be proper for the Court below to admit all such testimony as may bear upon the manner and character of the defendant's work in the mines, and the theory and in

Opinion by GORDON, J. WOODWARD, J., absent.

Oct. & Nov. '76, 193.

Nov. 12, 1877. Jackman et al. v. Delafield et al.

Executors and administrators-When a power to sell real estate given by the testator to his executors may be exercised by an administrator d. b. n. c. t. a.-Act of March 12, 1800-Act of Feb. 24, 1834-Note, Act of April 22, 1856.

A power to sell real estate given by the testator to his executors for the purpose of distributing the proceeds officii, and may be exercised by an administrator d. b. n. among the objects of his bounty belongs to them virtute

Thus we observe, that even as yet the true position of the dividing line was not discovered, and that the defendant's workings were not regarded as likely to prove injurious to the rights of the company, and he was warned only to avoid interference with the lease of the adjoining ten-tent governing it. ants. Then we have Mr. Stockett's letter, of the The judgment is reversed, and a venire facias same date, to the president of the company, de- de novo is awarded. tailing the conversation he had had with Freck and his mining boss, Williams; the confidence they expressed that there was yet another south dip between the breasts referred to and the adjacent lease of Gorrell & Co.; and his own opinion, that, whilst this was possible, it was not probable. Thus the company, by its own officer, was put into possession of every detail, not only of Freck's doings, but of his intentions and opinions; and if it trusted him, without remonstrance or caution, to proceed with his experiments in good faith, we cannot see why it should complain of the result. Again; the defendant ought not to be held liable for damage resulting from the neglect of either the plaintiff or Gorrell & Co. It is manifest from the facts of this case, as well as of the case of this same. t. a. under the provisions of the Act of Feb. 24, 1834. plaintiff against the last-named company as reR. devised and bequeathed the residue of his estate, ported in the Legal Intelligencer of 29th March, real and personal, to his executors, and authorized them 1872, that much, if not all, of the damage inter alia, to sell and convey the real estate in such to the Centralia mines resulted from the in- manner as they might think proper, either at public or tentional acts of the lessees of Hazeldell, in so private sale. He then directed them to pay or transfer sloping their gangway as to throw the water into one-half of this residue to his son (who was one of his executors) absolutely, and directed the remaining onethe Freck workings. But the plaintiff had the half to be equally divided between his two granddaughters. same powers over Gorrell & Co. that it had over He further directed that any property, whether real or Freck & Blackiston, and if it had passively per-personal, which either of his granddaughters, who were mitted the former to do that which proved disas- then covert, might become entitled to under the will, trous to its own property, it cannot cast the rents and profits of the real estate and the income of the burden of its own negligence over upon the de-personal estate during the joint lives of herself and her fendant. We see, from the case above stated, that when it chose to move, there was no want of power, and that it could then make itself felt to some purpose, not only through the reserved powers of the lease, but also through the strong arm of this Court. Without dwelling upon any of the numerous exceptions, we but suggest, by way of summary, the following principles for the re-trial of this case. If the crossing of the line of the two leases by Freck, resulted from an error in judgment in an honest attempt to develop that line; if the company permitted him to exercise his own judgment concerning this matter, by passively or actively acquiescing in what he did; or if the damage resulted from the direct acts of the lessees of the north dip, the defendant is not responsible for the consequences flowing from any or all of such acts. In such

should be vested in his executors in trust to receive the

husband, for her separate use, free from any control of her husband; and in case of the decease of her husband before her, to transfer the real and personal estate to her absolutely; and in case of her decease before her husband, to distribute the real and personal estate among such persons as would be entitled to her estate under the intestate laws, except her husband, who was to have no part thereof.

The testator's son having died, one of the grand

daughters having died leaving issue, and the husband of division of the residuary estate having been made, the the other granddaughter having died, but no transfer or administrator d. b. n. c. t. a. sold and conveyed a lot of ground, being part thereof. In ejectment by the devisees and their representatives:

Held (reversing judgment of the Court below), that the power of sale given by the testator to his executors was rightly exercised by the administrator d. b. n. c. t. a., and that a good title passed by his deed.

Evans v. Chew (21 Sm. 47) and Lantz v. Boyer (31 Sm. 325; 2 WEEKLY NOTES, 654) followed.

case the plaintiff ought only to recover the differ- Error to the Common Pleas No. 2, of Alleence in the price of the coal, which the defend-| gheny County.

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