Thompson v. Mattern

Mr. Justice Gordon

delivered the opinion of the court, March 14th, 1887.

We are entirely satisfied with the rulings of the learned judge of the court below on the main points involved in this ease. That the Board of Property made a mistake in awarding the patent to the defendants, we have no doubt, for the fee to the body of the land in controversy was clearly in the plaintiffs. Nevertheless, we think there was an error in directing a general verdict for the plaintiffs without a reservation of the defendants’ ore right. That right is found in the deed of Irvin and the Thompsons to the Matterns, dated August 22d, 1857. The language of the reservation is, inter alia, as follows: “ They also reserve the entire privilege of all ore on said premises. To have permission to enter upon said premises to mine, clean and take away the same without let or *513 hindrance from the said parties of the second part, their heirs or assigns.”

The learned president of the Common Pleas held that this reservation left in the vendors an incorporeal hereditament only, and that the verdict, though general, would have no effect upon it. But, without passing positively upon the question, we very much doubt the incorporeal character of the reservation. in the case of Whitaker v. Brown, 46 Pa., 197 , where a reservation, very nearly like the one before us, was considered, it was held, that it must be construed as an exception, and that, as a consequence, the fee in the reserved mineral remained in the vendor. Moreover, according to the case of French v. Seeley, 6 Watts, 292 , the issuing of the patent, the necessary result of the present verdict and judgment, will cut off all rights which the defendants heretofore may have had in the land, one of which, undoubtedly, is the right of entry for the purpose of removing the ore. We are of opinion, therefore, that the defendants’ right should have been reserved by the verdict, for thus only can it be recognized in the patent. As this court, as well as the Common Pleas, has the power to amend verdicts in ejectments, especially those of an equitable kind, such as the one before us, and as it would be to no purpose to send the case back for re-trial, we direct air amendment of the verdict as follows: After the words “they find for the plaintiffs the land described in the writ,” add, “ reserving to the defendants their rights to the ore that may be in and upon said land, together with the right of entry, as described and limited in the deed of James Irvin, Moses Thompson and Mary, his wife, and John I. Thompson and Mary, his wife, to John Mattern, John Mattern, Jr., & George Mattern, dated 22d of August, 1857.”

With this amendment the judgment is affirmed