The Scranton tribune. [volume] (Scranton, Pa.) 1891-1910, 1897-10-29

company, 100 Pa 4s3.
WELL BEATEN PATH.
SO far in our inquiry we have well
beaten path to travel, but from this point
forward we are without any definite land
mark to guide us. The real question Is,
may there be a severance of the mineral
estate from the surface by the acts Of the
owners OF the original freehold? And IL
So, may there be notice i'm fact of such
severance to other persons that will af-
feet them in the same manner as the con-
structive notice arising from the record
ing of a deed? 1t is very clear, as we
have seen, that If the deed to the plain
tiff had been for the coal under the 'Por-
ter tract" oaly, the entry of Mcdonald
upon the surface and his enclosure of a
part of it would have no effect upon tle
lower estate. The rule is well settled by
the cases cited above. The reason of the
rule is that the sale of the coal severed 1t
from the surface and the recording OF the
deed gave constructive notice to Nc
Donald of such severance whether he mad
knowledge of 1t or not. But the plain
tiifs decd was for the whole of the land
including the soil and the minerals. The
company had the right, however, to de-
velop and operate the mineral estate
alone, II that was to ITS interest, and
leave the surface untitled and unCieared.
1t elected to do so. 1t erected its break
er, opened its mines, extended its gidg-
ways, arranged its tracks and sidings,
and began the production of coal for the
market from beneath the surface of the
Porter tract" and it's adjoining lands.
In this manner it entered upon the actual
possession of its mineral estate. For
more than sixty years it has continued
its possession without interruption in a
manner that has been obvious to all per-
sons in the neighborhood No person
could pass, or enter upon the land, with
out being confronted with the unmistak-
able proofs of the possession and active
operations of the plaintiff in this its sub
terranean estate. These proofs, includ-
ing the structures, the Culm pile, the pre-
pared COaI the movements of men and
cars about the pits mouth, brought the
knowledge of plaintiffs operations to even
the most casual observer in much more
effective and satisfactory manner than il
could have been done by the mere exist
ence of a recorded deed. Why should it
not have the same legal effect?
ANOTHER ELEMENT.
In this case there is still another ele-
ment of notice; for the defendant not only
made his entry upCn the surface with full
knowledge from the acts of the owner, of
His severance and the occupancy of the
lower estate by it, but he was in its en-
ploy assisting in its mining operations.
He was one of the persons by whose la
Dor the Plaintiff preserved its possession
and kept its flag flying. Surely notice
could go no farther than this. The re-
cording of a deed is notice notwithstand-
ing the party to be affected by it may
never have known of its existence or of
the severance wrought by it, because he
might have krown if he had exercised
the vigilance the law requires OF him and
examined the record. So, it is well set
tied, possession is notice although the per-
son affected did not know of it. 1t was
his duty to take notice of the possession
as well as of the record, and if he failed
to do it, it was his folly. He is held to
know, because he might have known, if
he had made the examination which it
was his duty to make. Here the possess
sion of the owner was known. The estate
in which it was at work was known; and
the defendant was in it's service contrib
uting by his own labor to the development
of the mineral estate and to the main
tenanCo of his employers possession. This
was notice by, and because of, the clear
est knowledge of all the facts. Mcdonald
had this knowledge when he first entered
upon the surface, and he was affected by
it. He knew of the actual severance of
the estates in the Porter tract. lie knew
the owners were in the exclusive possess
sion of the lower one, and himself assist
ed as an cmploye in the work that pos
session was made visible and notorious.
He never did anything to challenge their
possession of the mineral estate. ON the
contrary, all he did, aside from the erec-
tion of shelter on the surface was as
servant of the owner, under its direction
and in the clearest recognition of, ard
subserviency to, It's title.
COULD NOT CLUTCH MINERALS.
Under such circumstances it is plain
that if he acquired a title to the surface
of the six acres he claims he could not
clutch also the mineral estate, or any
part of it, that lay below the surface. 1t
would be inequtable and unjust to hold
otherwise in this case. He had stolen
i'm upon the surface while at work for the
company that owned both ii and the coal.
He knew of the severance in fact of these
estates, and aided in the general work
that made the severance evident to the
world. If entering upon such circum-
stances he could acquire the surface he
is limited to ii. Knowing all the facts he
was bound If he desired to acquire title
to his employers mine or any part of it
to enter upon the mineral estate at some
point, take possession, hold it openly and
| adversely for twenty-one years, so that
his position and claim could have been
known to the owner.
Any different holding would lead to very
| absurd results. 1t would require us to
hold that constructive notice is better
than actual notice. Even this is short of
a full statement Of the result Of the con-
trary doctrine, for in reality it would re-
quire us to hold that notice in fact had TO
| significance and bound to no one. If Me-
Donald was not bound by the complete
knowledge he possessed and by the op-
| portunity for inquiry which his relations
to the owner afforded him, it would fol-
low that actual knowledge did not so
much as put him upon inquiry
1t would be more reasonable to strike
! down the constructive notice which the
| law raises from the recording of a deed
than thus to put it out Of the power Of an
| owner to protect himself by the clearest
| disclosure of his possession of his estate,
| and its purpose, to one of his own en-
| plOyes. But it is said that the company
was not engaged in mining Immediately
| under the six acres of surface by Nc
| Donald and that there was considerable
unmined coal in place directly below his
enclosure Mcdonald entered upon the
| surface of the Porter tract knowing Of the
/ severance of the coal under il from the
| surface. The plaintiffs mineral estate
| was protected as fully by this actual
| knowledge as it would have been by con-
| structive notice; and no title by the stat
| ute Of limitations could be acquired with
in the limits Of that estate without an en-
| try upon it,
CAN HAVE NO EFFECT.
An entry upon another estate, that
upon the surface, can have no ef-
| feet outside the estate entered. II
| there is no severance an entry upon the
surface will extend downward and draw
| to it a title to the underlying minerals; so
| that he who possesses another and ac-
/ quires title by the statute of limlta-
| tions, will succeed to the estate of him
| upon whose possession he has entered.
| But II a severance is made before mis- ell
| try, and he has notice of that severance,
| either by the record, or by the state #