13. TRESPASS FOR WRONGFUL MINING-MEASURE OF DAMAGES. The measure of damages in an action for trespass for wrongful mining and removing coal under the provisions of the act of April 25, 1850, is the fair value of the coal in place. But if the evidence fails to fix its value in place then the measure would be what it was worth at the pit's mouth or in a distant market, deducting therefrom the cost to put or take it there. Coleman's Appeal, 62 Pa. St. 252, p. 279. See Oak Ridge Coal Co. v. Rogers, 108 Pa. St. 147, p. 152. JOINT TENANTS-DETERMINATION OF RIGHTS-EXTENDING ACT. LAWS 1856, P. 502. APRIL 22, 1856. AN ACT to extend the equity jurisdiction of the courts of common pleas in certain cases. SEC 1. Be it enacted, etc.: That in addition to the rights granted to persons holding coal or iron-ore mines or minerals, as tenants in common, by the twenty-fourth section of the act of April 25, 1850, it is hereby further enacted that any person or persons claiming to be tenants in common, joint tenants, or otherwise interested in any coal or iron mines or other minerals, and which said tenancy, claim, or right shall be denied or resisted by any other person or persons claiming the same, it shall be lawful for such tenant in common, joint tenant, or other party in interest to apply by bill or petition in equity to the court of common pleas of the county in which the lands lie, setting forth the right or interest which such claimant has or claims to have in said iron ore, coal mine, or other mineral, and that the use, exercise, or existence of said right is denied by the persons claiming the same; whereupon the said court shall proceed to examine, adjudicate, and determine the rights of the several parties in the manner prescribed in the above recited section, and all parties in interest shall be made parties to such proceeding. SEC. 2. That in all cases arising under this act an appeal may be taken to the supreme court from the final decree of any of said courts of common pleas within one year from the date of said final decree and in all other respects upon the same terms and conditions as are provided in cases of appeal from the decrees of the court of common pleas for the city and county of Philadelphia. MINING IN RIVERS-WARRANTS ISSUED. LAWS 1848, P. 533. APRIL 11, 1848. AN ACT to encourage the further development of the mineral resources of the Common wealth of Pennsylvania. (Repealed and restored in part. See pp. 588.) SEC. 1. Be it enacted, etc.: That it shall be the duty of the surveyor general, on application to him made, to issue his warrant or warrants, for not exceeding in quantity one hundred acres to any one person who may apply for the same, to the deputy surveyor of any county, directing him to survey so much of the bed of any of the public navigable rivers of this Commonwealth, as may be called in said application, beginning at a point designated in the application, at low water mark on the bank of said river, and pursuing the course of said river at low water mark, as far as designated; then at right angles across said river to low water mark; thence along the shore of said river at low water mark, to a point opposite the place of beginning; and thence across said river to the place of beginning; the original of which to be filed in the office of the surveyor general, and a copy to be directed to his deputy of the proper county, whose duty it shall be to survey the same, and make return thereof as soon as possible. SEC. 2. That from and after the issuing of said warrant, the right to dig and mine for iron, coal, limestone, sand and gravel, fire clay and other minerals, shall vest and be in the party in whose favor the said warrant or warrants shall issue, his heirs or assigns: Provided, That he or they shall so exercise the said right as not in any way to interfere with the free navigation of said river, or with the rights of any person or persons holding property on the banks thereof: Provided also, That nothing contained in this act shall authorize any person to undermine the bed of any river, the navigation of which has been improved by the Commonwealth, or by any incorporated company, within one hundred yards from any dam, lock or other building necessary to said improvement, without the consent of the canal commissioners, or the board of managers of said company; and nothing contained in this proviso shall in any way be construed to extend to any works or mines now in operation, or to affect any rights now vested under existing laws: And provided also, That the Commonwealth shall have the right, after twenty years from this date, to revoke any such warrant or grant, on payment to the party, his heirs or assigns holding the same, the original purchase money, and the original costs of his works, engine, etc.; such power of revocation only to be in force where there is any improvement made. SEC. 3. That the person or persons so holding said warrant or warrants, his or their heirs or assigns, shall and may at any time within ten years from the date of the same, have and receive a patent for the said land, under the seal of the Commonwealth, in the usual form, granting to them, their heirs and assigns, the right to dig and mine iron, coal, limestone, sand and gravel, fire clay or any other mineral, on his or their paying into the treasury of the Commonwealth the usual price per acre of public lands, and the usual fees, with interest from the date of the said warrant, subject to the restrictions contained in the second section of this act: And provided, That nothing in this act shall prevent or be a bar to any indictment for any nuisance or injury done by any person or persons so exercising said rights, to any public or private property, or for any impediment to the full and free navigation of any of the said navigable rivers. ANNOTATIONS. MINING IN RIVERS. CONSTRUCTION OF ACT-ISLANDS NOT INCLUDED. The act of April 11, 1848 (P. L. 533), is general, applying to all navigable rivers, and on its face a warrantee is entitled to the minerals under the bed of a river without exception. It was not intended, however, that he should have a right to dig and mine and carry away the minerals in islands which had already been granted, as the presumption is against an intent to invade vested rights of property. The statute must be so construed that the bed of the river between the shores of the main land shall not include islands which had been previously granted to purchasers under the laws of the State. It is equally clear that by a like construction it shall not include islands which under prior existing laws were subject to application and sale. Pennsylvania Coal Co. v. Winchester, 109 Pa. St. 572 p. 577. LIMITATION ON RIGHTS SUPPLEMENT. LAWS 1849, P. 225. MARCH 24, 1849. ▲ SUPPLEMENT to an act, entitled "An act to encourage the further development of the mineral resources of the Commonwealth of Pennsylvania," passed April 11, 1848. SEC. 1. Be it enacted, etc. : That the act to which this is a supplement shall not be so construed as to grant any right or privilege whatsoever, to the surface of the bed of any river; but any rights acquired under said act shall be confined exclusively to sinking shafts and mining beneath the bed of such rivers, after having obtained the right so to do, in the manner provided by said act. LAWS 1849, P. 255. REPEALING ACT. MARCH 29, 1849. AN ACT to repeal an act passed the 11th day of April, 1848, entitled "An act to encourage the further development of the mineral resources of the Commonwealth of Pennsylvania." SEC. 1. Be it enacted, etc.: That the act entitled "An act to encourage the further development of the mineral resources of the Commonwealth of Pennsylvania," passed the 11th day of April, 1848, be and it is hereby repealed. ACT RESTORED AS TO ALLEGHENY COUNTY. LAWS 1856, P. 365. APRIL 16, 1856. AN ACT to restore an act to encourage the further development of the mineral resources of the Commonwealth of Pennsylvania, approved the 11th day of April, 1848, so far as relates to Allegheny County. SEC. 1. Be it enacted, etc.: That an act to repeal an act passed the 11th day of April, 1848, entitled “ An act to encourage the further development of the mineral resources of the Commonwealth of Pennsylvania, be and the same is hereby repealed, so far as relates to Allegheny County, and that the quantity included in any one warrant shall not exceed one hundred acres: Provided, That no person but the adjoining riparian owner shall have the right to any warrant until after one year from the date hereof. RESTORED AS TO FAYETTE COUNTY. LAWS 1864, P. 437. APRIL 18, 1864. AN ACT to revise and reenact an act to encourage the further development of the mineral resources of the Commonwealth of Pennsylvania, approved the 11th day of April, 1848, so far as to apply to, and embrace, the County of Fayette. SEC. 1. Be it enacted, etc.: That the several provisions of an act entitled "An act to encourage the further development of the mineral resources of the Commonwealth of Pennsyl vania," be and the same are hereby revised and reenacted, so far as to apply to, and embrace, the County of Fayette. DEVELOPMENT OF MINERAL RESOURCES. LAWS 1849, P. 52. FEBRUARY 12, 1849. AN ACT to incorporate the society to develop the mineral resources of the United States. SEC. 1. Be it enacted, etc.: That (certain named persons) and their successors, shall be and are hereby created a body politic and corporate, in deed and in law, by the name, style, and title of "The Society for the Development of the Mineral Resources of the United States." * SEC. 6. The objects, intents and purposes of the said corporation are hereby declared to be, to collect and preserve specimens of all the rocks and minerals of the United States, useful in agriculture, architecture, manufactures or the arts, to offer them for free inspection in such convenient place, at such convenient times, and under such reasonable restrictions, as the said officers shall think proper, to cause to be disseminated useful information upon economical, mineralogy and geology, and to introduce into use American mineral production; for which purposes the said corporation shall have power to appoint teachers and professors of mineralogy, geology, and mineralogical chemistry. SEC. 9. That in the disposition of duplicate specimens of minerals, the claims of members of the corporation shall always be preferred; and to all public lectures delivered before the corporation, members thereof who have paid their annual contribution for the time being, and their wives, shall be admitted without further charge. WASTE PREVENTION-WRIT OF ESTREPEMENT. LAWS 1832-33, P. 99. MARCH 27, 1838. AN ACT to facilitate appeals by guardians, from the judgments of justices of the peace, and from awards of arbitrators, and for other purposes. SEC. 1. Be it enacted, etc.: SEC. 3. And be it further enacted by the authority aforesaid, That quarrying and mining, and all such other acts as will do lasting injury to the premises, shall be considered as waste, under the provisions of the second section of the act entitled "A supplement to the act entitled 'An act to enable the justices of the supreme court to hold circuit courts within this Commonwealth,'" passed the second day of April, 1803: Provided, That no writ of estrepement shall be issued to prevent waste or injury by the working of quarries or mines, which were opened previous to the institution of the suit for recovering possession thereof, until the term next succeeding that to which the writ of ejectment was returnable, or until the plaintiff shall have filed, in the office of the prothonotary of the proper court, an affidavit that the title, or right of possession to the premises, or some part thereof, is vested in him, and until the attorney for the plaintiff shall have certified his opinion, that the title or right of possession is vested in the plaintiff as aforesaid: And provided further, That the court in which the action is pending shall have authority to dissolve the writ of estrepement, on the defendant giving security to indemnify the plaintiff against any damage or loss by the further working of the quarries or mines, or on such other terms and conditions as the court may consider equitable and just. ANNOTATIONS. WASTE IN MINING. 1. ACT EXTENDED TO MINING AND QUARRYING. 1. ACT EXTENDED TO MINING AND QUARRYING. This act extended the provisions of the act of April 2, 1803, restraining waste, to quarrying and mining, but a person possessing a right to dig ores is not guilty of committing waste when he takes out more ore than his contract or his rights call for. A court of equity will not restrain the mining of ore under such circumstances and where the account is a mere matter of charge for a certain number of tons of ore. Grubb's Appeal, 90 Pa. St. 228, p. 234. 2. WASTE LIFE TENANT WORKING OPEN MINES. The act of March 27, 1833, defines the words "waste and destruction" to mean quarrying or mining and all such other acts as will do lasting injury to the premises. But the proviso of the act expressly excepts the writ of estrepement as to quarries and mines opened before suit brought on condition of giving security for damages. Even after ejectment brought opened quarries and mines may be worked if the contingent interest of the complainant is guarded by security. But there is no limitation or restraint whatever imposed by the statute on a tenant for life working an opened mine. It is doubted whether the saving clauses do not empower a life tenant to open mines and quarries that he may have reasonable use and enjoyment of the premises. Irwin v. Covode, 24 Pa. St. 162, p. 166. See Rankin's Appeal, 1 Monoghan (Pa. Sup. Ct. Cas.) 308. Deffendbaugh v. Hess, 35 Pa. County Ct. Rep. 7. The working of open mines by a tenant for life is not waste, either at common law or under the statutes of this State. Irwin v. Covode, 24 Pa. St. 162, p. 165. See Westmoreland Coal Co.'s Appeal, 85 Pa. St. 344, p. 346. Shoemaker's Appeal, 106 Pa. St. 392, p. 394. 3. LIFE TENANT-RIGHT TO OPEN MINES-OIL WELLS. A tenant for life has no right to open oil and gas wells on land where none had been drilled prior to the beginning of the life tenancy; and a lessee of a life tenant takes no substantial rights or benefits under such a lease. Marshall v. Mellon, 17 Pa. County Ct. Rep. 366, p. 368. 4. OPERATIONS UNDER LEASE NOT WASTE. Quarrying and mining and other acts that do a lasting injury to the demised premises are by the act of March 27, 1833 (P. L. 99), declared to be waste; but they are not such when mining is the very purpose of a lease from the owner. Hiel v. Strong, 44 Pa. St. 264, p. 267. |