shall not be practicable to drain or ventilate such mines or to comply with the requirements of this act as to ways of ingress and egress or traveling ways by means of openings on lands owned or held under lease by him, them, or it, and the same can be done by means of openings on adjacent lands, he, they, or it may apply by petition to the court of quarter sessions of the proper county after ten days' notice to the owner or owners, their agent or attorney, setting forth the facts under oath or affirmation particularly describing the place or places where such opening or openings can be made, and the pillars of coal or other material necessary for the support of such passageway and such right of way to any public road as may be needed in connection with such opening, and that he or they can not agree with the owner or owners of the land as to the amount to be paid for the privilege of making such opening or openings, whereupon the said court shall appoint three disinterested and competent citizens of the county to view the ground designated and lay out from the point or points mentioned in such petition, a passage or passages not more than eighty feet area, by either drift, shaft, or slope or by a combination of any of said methods by any practicable and convenient route to the coal of such person, firm or corporation, preferring in all cases an opening through the coal strata where the same is practicable. The said viewers shall at the same time assess the damages to be paid by the petitioner or petitioners to the owner or owners of such lands for the coal or other valuable material to be removed in the excavation and construction of said passage; also for such coal or other valuable material necessary to support the said passage, as well as for a right of way not exceeding fifteen feet in width from any such opening to any public road, to enable persons to gain entrance to the mine through such opening or to provide therefrom, upon the surface, a water course of suitable dimensions to a natural stream to enable the operator to discharge the water from said mine if such right of way shall be desired by the petitioner or petitioners, which damages shall be fully paid before such opening is made. The proceedings shall be recorded before such opening is made. The proceedings shall be recorded in the road docket of the proper county, and the pay of viewers shall be the same as in road cases; if exceptions be filed they shall be disposed of by the court as speedily as possible, and both parties to have the right to take depositions as in road cases. If, however, the petitioner desires to make such openings or roads or waterway before the final disposition of such exceptions, he shall have the right to do so by giving bond, to be approved by the court securing the damages as provided by law in the case of lateral railroads.

SEC. 2. It shall be compulsory upon the part of the mine owner or operator to exercise the powers granted by the provisions of the last preceding section for the procuring of a right of way on the surface from the opening of a coal mine to a public road or public roads, upon the request in writing of fifty miners employed in the mine or mines of such owner or operator: Provided however, That with such request satisfactory security be deposited with the mine owner or operator by said petitioners, being coal miners, to fully and sufficiently pay all costs, damages and expenses caused by such proceedings and in paying for such right of way.

SEC. 3. In any mine or mines, or parts thereof, wherein water may have been allowed to accumulate in large and dangerous quantities, putting in danger the adjoining or adjacent mines and the lives of the miners working therein, and when such can be tapped and set free and flow by its own gravity to any point of drainage, it shall be lawful for any operator or person having mines so endangered, with the approval of the inspector of the district, to proceed and remove the said danger by driving a drift or drifts protected by bore holes as

provided by this act, and in removing said danger it shall be lawful to drive across property lines if needful. And. it shall be unlawful for any person to dam or in any way obstruct the flow of any water from said mine or parts thereof, when so set free, on any part of its passage to point of drainage.

SEC. 4. No operator shall be permitted to mine coal within fifty feet of any abandoned mine containing a dangerous accumulation of water, until said danger has been removed by driving a passage way so as to tap and drain off said water as provided for in this act: Provided, That the thickness of the barrier pillars shall be greater, and shall be in proportion of one foot of pillar thickness to each one and one-quarter foot of water head, if, in the judgment of the engineer of the property and that of the district mine inspector, it is necessary for the safety of the persons working in the mine.

That in all cases where an easement on land has been acquired under proceedings in condemnation by any corporation possessing the right of eminent domain, and the same has been vacated and ceased to be used and occupied by any such corporation for a period of fifteen years or upwards, then and in that case said easement shall be held to have terminated and the original owner, his heirs and assigns, shall hold the title to the said land divested of said easement: Provided. That nothing in this act shall be held to apply to or affect any case where the fee simple title has been vested in the corporation ceasing to use or occupy said land, nor to effect, qualify, alter or repeal the act of the General Assembly of this Commonwealth, entitled "An act relating to straightened or improved lines of railroads," approved April 3, 1872.

SEC. 2. When any person or persons, natural or artificial, shall be in possession of any lands or tenements in this Commonwealth, claiming to hold or own possession of the same by any right or title whatsoever, which right or title or right of possession shall be disputed or denied by any person or persons as aforesaid, it shall be lawful for any such person to apply by bill or petition to the court of common pleas of the county where such land is situate, setting forth the facts of such claim of title and right of possession and the denial thereof by the person or persons therein named, and thereupon the said court shall grant a rule upon such person or persons, so denying such right, title, or right of possession, to appear at a time to be therein named and show cause why an issue shall not be framed in said court, between the parties, to settle and determine their respective rights and title in and to said land. Twenty days' notice of such rule shall be given.

And if, upon the hearing of such rule, it shall appear to the court that the facts set forth in such petition are true, it shall be the duty of the court thereupon to frame an issue of such forms as the court shall deem proper between the respective parties, to settle and determine the right and title of the respective parties to said land, and the verdict of the jury in such issue shall have the same force and effect upon the right and title and right of possession of the respective parties in and to said land as a verdict in ejectment upon an equitable title.

In case the person or persons denying such right, title or right of possession in such lands or any of them are not residents within the jurisdiction of the court, such court may make an order for service of said rule and a copy of said bill or petition upon such persons at their residence or place of business outside of

the county or State where the land lies, in the same manner as service is made of a summons in a personal action, giving at least twenty days' notice of such hearing.

If any person or persons shall neglect or refuse to appear at such return day, after twenty days' service of such rule and copy of petition, or having appeared shall refuse to join in such issue, the court may award and proceed with the issue in like manner as if such persons had appeared therein, and any judgment obtained in such issue shall as fully and finally conclude and determine the rights and title of such defaulting party as if such persons had appeared and joined in such issue: Provided, That if, upon the return of such rule, any of the persons served shall disclaim, by writing filed, any right, title or interest in said land, all further proceedings as to such persons shall cease and such disclaimer shall forever bar such person from ever setting up or claiming any such right or title in any court. The decree of the court in refusing the rule or issue in any such case and the judgment in such issue shall be subject to appeal by either party to the Supreme Court, in like manner as appeals are allowed to judgments and decrees of the said court of common pleas.

ANNOTATIONS.

QUIETING TITLES.

1. TITLE BY CONDEMNATION-NATURE.

2. POSSESSION UNDER CONDEMNATION-CHALLENGE TO CONTEST TITLE.

3. TITLE TO MINERALS-DETERMINATION-JURISDICTION-PLEADING.

4. MINING LEASE-ABANDONMENT-LAW AND FACT.

5. MINING LEASE CONSTRUCTION-MINERAL INTERESTS CONVEYED.

6. TITLE TO COAL-DETERMINATION OF ISSUE-PROOF OF ADVERSE POSSESSION.

7. COAL RIGHTS-POSSESSION AS NOTICE TO PURCHASER.

8. OIL LEASE-PRACTICAL CONSTRUCTION-TITLE TO COAL IN PLACE.

9. SEPARATION OF SURFACE AND MINERALS-TAXATION.

1. TITLE BY CONDEMNATION-NATURE.

The right which a natural gas company acquired through the exercise of its power of eminent domain is the right to such occupancy of the real estate condemned as would enable it to bring ejectment if it were ousted therefrom. Clemens v. American Nat. Gas Co., 39 Pa. County Ct. Rep. 447, p. 448.

2. POSSESSION UNDER CONDEMNATION-CHALLENGE TO CONTEST TITLE.

A natural gas company seeking to appropriate land for a pipe line tendered its bond, and after approval by the court, took possession of the land and proceeded to lay its pipe line. This was a sufficient challenge to a person claiming adversely to and in denial of the right of the gas company to bring his action in ejectment, or be barred therefrom in case of default.

Clemens v. American Nat. Gas Co., 39 Pa. County Ct. Rep. 447, p. 448.

3. TITLE TO MINERALS-DETERMINATION—JURISDICTION-PLEADING.

The act of June 10, 1893, confers jurisdiction on a court to frame an issue to determine the title to the underlying minerals in controversy upon a petition averring all necessary jurisdictional facts with an averment that the petitioner claimed title to the minerals and mining privileges under certain described land by virtue of a tax sale. The answer averred that the defendant held title to the minerals in controversy by virtue of a sale of such as unseated mineral land made by the treasurer of the county for the non-payment of taxes, and that

the defendant since he acquired title had been in continuous and uninterrupted possession of the minerals.

McCormack v. Berkey, 238 Pa. St. 264, p. 278.

4. MINING LEASE ABANDONMENT-LAW AND FACT.

The question of the abandonment of a mining lease is ordinarily one of fact to be determined by the jury under all the circumstances of the case. But to constitute an abandonment there must be an intention to abandon as well as an actual abandonment of the property. But where there is not dispute as to the facts and the inferences to be drawn were certainly not open to doubt, the court may then determine the question of abandonment as a matter of law. McMillin v. Titus, 222 Pa. St. 500, p. 511.

5. MINING LEASE-CONSTRUCTION-MINERAL INTERESTS CONVEYED.

An instrument or a lease gave the lessee the exclusive right and privilege of prospecting, examining, and searching for coal, ore, or other minerals, and for salt, oil, carbon oil, or other substances in and upon the described premises, and the right and privilege to dig, excavate, bore and sink pits and wells for any and all of the said coal, ore, oil, salt, and other minerals and substances and remove and take the same, and granted a release to the lessee of all interest of the lessor to the coal, ore, oil, carbon oil, or other minerals and substances for a small consideration named, and a further consideration of $500.00 to be paid out of the oil obtained on the premises for granting the privilege to explore, dig and excavate the minerals. The lease further provided that the lessee should have the free use of as much wood and coal as should be required to operate the machinery in sinking or pumping any and all wells that should be sunk by the parties on the premises. The latter provision construed in connection with the consideration named and the wording of the lease is sufficient to show that it was not intended to grant the coal in place or to be a grant in fee of the coal.

McMillin v. Titus, 222 Pa. St. 500, p. 508.

6. TITLE TO COAL-DETERMINATION OF ISSUE-PROOF OF ADVERSE POSSESSION. An issue was formed under this act to determine the title to coal under a certain tract of land. The plaintiff claimed it under a deed executed by the grantor in whose name the paper title stood. The defendant, a son of the plaintiff's grantor, showed by evidence that the father, the plaintiff's grantor, more than twenty years before the execution of the deed had given him the land in express, direct, positive and unambiguous language and had repeatedly acknowledged the fact; that pursuant to the gift the son went upon the property and made valuable improvements, and that his wife, on a statement from the father that the land was his, used her money in making valuable improvements upon the land, that the change of possession from father to son was notorious and that the son had maintained open, adverse and exclusive possession continuously for more than twenty-one years; that the reason the father, the plaintiff's grantor, denied the gift was because at the time it was made he did not know of the presence of valuable coal in the land. Such evidence is sufficient to sustain a verdict for the defendant under an issue formed.

Greenwich Coal & Coke Co. v. Learn, 234 Pa. St. 180, p. 186.

On an issue formed under this act to determine the title to coal under a certain tract of land it is sufficient to show a gift to the defendant and possession of the