Carnahan v. Brown

The opinion of the court was delivered, by Thompson, C. J. —In the view we take of this case, there is but a single question in it, and that relates to the nature and extent of the interest which the plaintiff acquired in the land of his brother William, under the will of his father. We state the question thus, because it is in relation to that portion of the estate of David Carnahan, that this controversy exists. I am strongly inclined to the opinion that the privilege extended to every part of the tract containing coal, which might be mined through the opening or entrance designated in the will as the coal-bank. This, however, is not material now. On the part of the plaintiff it was contended, so far at least as William’s share of the land was concerned, that the testator by his will, severed the coal from the surface lands and made two distinct estates out of it; that is to say, gave a several interest to William in the surface land, and an undivided interest in common with his brothers in the coal in place, under it. That he did not so mean to treat William’s, interest, is not reconcilable with the condition of things at the time. The opening or coal-bank was on the plaintiff’s share, and it is just as likely that what he intended in regard to the one, so far as the coal was concerned, he intended as to the others. But Alexander never admitted that his surface land was separated from the- Coal in it, for he sold to William some six or nine acres without restriction. [26] On the other hand, the defendant contends that the will was a devise of a mere privilege and easement, an incorporeal hereditament, a right in, or issuing out of, the land, and that ejectment is not a remedy for a deprivation or interruption of such a right or privilege. That this is so, there is no question, and we need only cite Johnstown Iron Co. v. The Cambria Iron Co., 8 Casey 241; Clement v. Youngman, 4 Wright 341; Gloninger v. The Franklin Coal Co., 5 P. F. Smith 9; and Grove v. Hodges, Id. 604, to prove it. The words of the will immediately bearing on the question, after devises amongst his sons in severalty by description, are “ And further, I devise and give to my said sons each an equal privilege (not share) for ever of the coal bank now opened, and the ground on the ridge adjacent, so far as may be necessary for digging and taking coal.” This was obviously but a grant or devise of a privilege in the coal-hank, not a share or portion of the coal, and an easement in the adjacent land necessary to its enjoyment. We do not consider it necessary in this opinion to give or refer to the many instances in the -books, where like conclusions have followed devises and grants similar to the devise just quoted. This has been done in the cases of The Johnstown Iron Co. v. The Cambria Iron Co., and in Clement et al. v. Masser et al., supra. They fully sustain the conclusion we have arrived at, that nothing but a privilege was conferred by the devise in question; and it follows that ejectment will not lie for its interruption. It is plain that the testator meant that each of his sons might take coal from the opened mine for his own use, or otherwise, without the expense of making any new opening on his own land. Perhaps, too, he may not have known that there was coal to be found almost everywhere over the tract, as it turned out, and thus was desirous that each son should have the convenience of free fuel to be procured at that place, rather than to. procure it elsewhere by purchase. Neither the words nor intent deducible from the consideration of the whole, or any part of the will, lead to any other than this as the proper conclusion, as to what was meant by this clause of the will, and this conclusively determines the case against the plaintiff. The question of estoppel is out of the controversy in this view of it, so far as the action of ejectment is concerned at least. Whether there be, or be not grounds for it, it is not necessary to consider, for ejectment as a remedy fails, and we will not discuss that point. For the reasons given the judgment is affirmed.