158 A.2d 782
Supreme Court of Pennsylvania.January 8, 1960.
March 15, 1960.
Real property — Coal lands — Separate estates — Right of support — Possession exceeding twenty years — Evidence — Presumptions — Presumption of payment — Presumption of grant.
In this action of trespass quare clausum fregit in which it appeared that in 1884 plaintiffs’ predecessor in title leased the coal in certain lands to exhaustion, that in 1886 the defendant constructed a double track railroad across the surface of the land but there was no record of it acquiring title to the surface, and that in 1951 the plaintiffs acquired title to the remaining coal; and plaintiffs contended that defendant was trespassing upon the surface of the land and by doing so was depriving the plaintiffs of the coal; it wa Held that (1) in view of the passage of more than twenty years since the entry of the defendant on the surface of the land there was an unrebutted presumption that defendant had paid for the right of way, and (2) an unrebutted presumption that defendant had received by grant a conveyance of the right of way, and (3) the defendant’s estates in the surface of the land and in the right of support did not interfere with the separate estate in the coal and did not deprive plaintiffs of their right to remove any of the remaining coal.
Mr. Justice BENJAMIN R. JONES took no part in the consideration or decision of this case.
Argued January 8, 1960. Before JONES, C. J., BELL, MUSMANNO, COHEN, BOK and EAGEN, JJ.
Appeal, No. 195, Jan. T., 1959, from judgment of Court of Common Pleas of Luzerne County, May T., 1955, No. 852, in case of Daniel M. Coxe et al. v. Lehigh Valley Railroad Company. Judgment affirmed.
Page 425
Same case in court below: 20 Pa. D. C.2d 111.
Trespass. Before APONICK, P. J.
Defendant’s motion for binding instructions granted, plaintiffs’ motion for judgment non obstante veredicto and for new trial denied, and judgment entered on the verdict. Plaintiffs appealed.
Richard M. Hughes, II and R. Lawrence Coughlin, with the Coughlin and Hughes, for appellants.
Joseph F. Gallagher, with him John C. Phillips, for appellee.
OPINION PER CURIAM, March 15, 1960:
The judgment for defendant entered on the verdict directed by the trial judge is affirmed on the opinion of President Judge APONICK for the court en banc, reported in 20 Pa. D. C.2d 111.
Mr. Justice BENJAMIN R. JONES took no part in the consideration or decision of this case.