Girard Trust Co. v. Delaware & Hudson Co.

Citations

• 246 Pa. 161
• 92 A. 129
• 1914 Pa. LEXIS 488

Syllabus

<p>Mines and mining — Coal leases — Construction — Royalties — Equity — Accounting. ■</p> <p>1. Even where a lessor of coal by receipting in full for a lesser amount of coal than he claimed he-was entitled to receive, waives the right of- himsélf and his heirs to- recover the correct amount, his conduct can not be considered such an interpretation of the. lease as to prevent his descendants who are his legal representatives from asserting a different interpretation of the lease.</p> <p>2. In a suit in equity for an accounting for coal mined and removed by defendants from a certain tract of coal lands, where the issue was the right of the plaintiff to recover for coal so small as to pass through a five-eighth-inch mesh, and where it appeared that plaintiff’s ancestor had been the tenant in common of such lands with a coal company, that in 1871 the coal company granted to defendant the right to mine coal from the land so held by it as tenant in common with plaintiff’s ancestor, with the consent of the latter; that defendant accounted to him every three months for coal mined from the premises but paid only for coal which passed over a five-eighth-ineh mesh; that in quarterly statements of tonnage mined rendered to him, no mention was made of the size of the coal mined and removed, nor was there any suggestion that the smaller size was not included in the total amount accounted for; that in 1878 he executed a further agreement, the primary purpose of which was to grant to the defendant the right to mine coal underlying a five-acre tract belonging to him in fee, under the express provision that “any coal which will pass through a five-eighth-inch mesh is not to be paid for,” which contract contained a further provision granting to defendant the right to continue to mine the coal from the land so held by the coal company and himself as tenants in common, paying to him, his heirs and assigns at the rate of twenty-five cents per ton for his proportion of the coal so mined a