J-A12032-15

                                  2015 PA Super 184

ALBERT M. VOSBURG, III,                           IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

NBC SEVENTH REALTY CORP., AND
PITTSTON AREA INDUSTRIAL
DEVELOPMENT CORP.,

APPEAL OF: NBC SEVENTH REALTY
CORP.

                                                      No. 1552 MDA 2014


                  Appeal from the Order Entered June 3, 2014
                In the Court of Common Pleas of Luzerne County
                        Civil Division at No(s): 91-E-2002


BEFORE: BOWES, DONOHUE AND ALLEN, JJ.

OPINION BY BOWES, J.:                            FILED SEPTEMBER 02, 2015

       NBC Seventh Realty Corporation (“NBC”) appeals from the trial court’s

order denying its motion to vacate the trial court’s order granting partial

summary judgment1 in favor of the heirs of Albert and Katherine Vosburg



____________________________________________


1
  By order dated June 27, 2014, the trial court denied NBC’s motion to
determine finality, or in the alternative, certify the interlocutory order for
appeal. NBC filed a petition for review to this Court seeking review of an
uncertified, interlocutory order pursuant to Pa.R.A.P. 341(c)(4), which
authorizes the filing of a petition for review within thirty days of the order
denying the application for a determination of finality. This Court granted
the petition for review on September 18, 2014.
J-A12032-15



(collectively the “Vosburgs”)2 and its own motion for summary judgment.

We reverse and remand for the entry of summary judgment in favor of NBC.

       This litigation involves property in Luzerne County that was conveyed

by Albert M. and Katherine Vosburg to Anthony Fritz by deed (“Deed”) dated

May 11, 1951. The Deed conveyed

       all that certain piece or parcel of land situate in the Township of
       Pittston . . . bounded and described as follows, to wit:

       BEGINNING at a corner of land now or late of Norman Lampman
       in the east line of David Young Warrant; thence along said
       Warrant line North seventy and eight-tenths (70.8) rods to a
       stone corner; thence, East two-hundred twenty-six (226) rods to
       a stone corner; . . .

       EXCEPTING AND RESERVING all coal and other mineral
       beneath the surface of said described land, with the right
       to mine and remove the same by subterrane mining.

       IT IS UNDERSTOOD AND AGREED that no buildings
       erected on said land, or field under cultivation, will be
       disturbed by said mining.

       Being the same land described in a deed from Burr B. Vosburg,
       single to Albert M. Vosburg, male grantor herein, dated 18 th of
       February, 1930, and recorded in the office of Recorder of Deeds
       in and for Luzerne County in Deed Book No. 1066, Page 631.

Deed, 5/11/51, at 1 (emphases supplied).
____________________________________________


2
    This action was originally commenced by Albert M. Vosburg III, who
claimed sole ownership of the coal and mineral rights reserved in the 1951
Deed. He subsequently renounced his claim to sole ownership of the
reserved mineral estate and filed a third amended complaint in June 2003 in
which he acknowledged other heirs of Albert M. and Katherine Vosburg as
parties with an interest in the mineral estate and joined them as plaintiffs.
The caption does not reflect their joinder.



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J-A12032-15



       The Fritz parcel was subsequently sold to the Pittston Area Industrial

Development Corporation (“PAID”).3             In 2002, NBC Realty purchased 105

acres of land from PAID to build a commercial distribution center.

Approximately fifty of those acres consisted of the Fritz parcel, which was

subject to the foregoing mineral rights reservation.          Construction of the

building, parking areas, and access roads necessarily involved excavation

and regrading of the surface to accommodate this use. The contractors used

crushed rock from the site and procured additional material from an off-site

source as fill.

       On October 11, 2002, Albert Vosburg III filed a complaint against NBC

and PAID alleging that the aforementioned excavation and processing of

rock on the site constituted trespass and conversion of the mineral rights

estate.   Specifically, he alleged that NBC and PAID exceeded their surface

rights when they excavated hardened shale on the Fritz parcel to a depth of

approximately fifty feet and removed and processed the rock for use as sub-

base and fill for the construction of the warehouse on the property.          He




____________________________________________


3
  PAID did not file a notice of appeal and thus is not participating in the
within appeal.




                                           -3-
J-A12032-15



contended that the hardened shale was a mineral under Pennsylvania law

with a minimum value of $3.00 per ton.4

       NBC denied that it removed any rock from the Fritz Parcel.           It

contended further that the rock herein was not a mineral because it was not

metallic. Finally, NBC maintained that the rock herein, located on and near

the surface, was not contemplated within the mineral reservation since it

was not extractible by underground mining.

       On June 10, 2010,5 the Vosburgs moved for partial summary judgment

on two issues. First, they asked the court to rule that they are the owners of

the mineral estate.6       Second, they sought a determination that PAID and

NBC’s use of the property constituted a trespass of their mineral estate and

conversion of the minerals located therein.       The trial court applied the

scientific definition of a mineral and held as a matter of law that rock was a

mineral.    It then concluded that the cut and fill work of NBC and PAID
____________________________________________


4
   The nature of the rock remains disputed. The Vosburgs refer to the
extracted material as hardened shale, sandstone, and rock. NBC offered the
results of test borings that revealed that the Fritz Parcel consisted of sand,
silt, gravel, and disintegrated rock in the top five feet of the strata, and
“moderately to slightly fractured” sandstone below that depth. However,
that factual dispute is not material to our disposition of this appeal.
5
   The record reveals that there were extensive periods when the Vosburgs
failed to actively prosecute this action.
6
  The court’s ruling that the Vosburgs are owners of the mineral reservation
is not challenged on appeal. The controversy before us turns on whether
rock is included within that mineral reservation.



                                           -4-
J-A12032-15



constituted a trespass of the mineral rights reservation, and the crushing of

the rock for use as fill and support was a conversion. On December 3, 2010,

the court granted partial summary judgment in favor of the Vosburgs.

      On March 11, 2014, NBC sought to vacate the trial court’s December

3, 2010 order and moved for summary judgment in its favor based upon the

Supreme Court’s decision in Butler v. Charles Powers Estate, 65 A.3d

885, 898 (Pa. 2013).      Following oral argument, the trial court denied the

motion to vacate. This Court granted NBC’s petition for review of the order

on September 18, 2014, resulting in the instant appeal. NBC presents two

issues for our review:

      1. Is it error under Pennsylvania law for a trial court to construe
         the term “mineral” in a private deed reservation to include
         rock on the basis that rock is within the scientific
         understanding of “mineral”?

      2. Is it error under Pennsylvania law for a trial court to hold that
         a plaintiff owns rock based upon a private deed reservation
         for “coal and other mineral” where the parties to the deed did
         not include “rock” in the text of the deed and the plaintiff did
         not plead or produce clear and convincing proof that the
         parties to the deed intended to include rock within the
         reservation?

Appellant’s brief at 2.

      Both of NBC’s issues implicate the propriety of the trial court’s grant of

partial summary judgment in favor of the Vosburgs.

            Our scope of review . . . of summary judgment orders . . .
      is plenary. We apply the same standard as the trial court,
      reviewing all the evidence of record to determine whether there
      exists a genuine issue of material fact. We view the record in

                                     -5-
J-A12032-15



      the light most favorable to the non-moving party, and all doubts
      as to the existence of a genuine issue of material fact must be
      resolved against the moving party. Only where there is no
      genuine issue as to any material fact and it is clear that the
      moving party is entitled to judgment as a matter of law will
      summary judgment be entered.

            Motions for summary judgment necessarily and directly
      implicate the plaintiff’s proof of the elements of his cause of
      action. Summary judgment is proper if, after the completion of
      discovery relevant to the motion, including the production of
      expert reports, an adverse party who will bear the burden of
      proof at trial has failed to produce evidence of facts essential to
      the cause of action or defense which in a jury trial would require
      the issues to be submitted to a jury. Thus a record that
      supports summary judgment will either (1) show the material
      facts are undisputed or (2) contain insufficient evidence of facts
      to make out a prima facie cause of action or defense and,
      therefore, there is no issue to be submitted to the jury. Upon
      appellate review we are not bound by the trial court’s
      conclusions of law, but may reach our own conclusions. The
      appellate Court may disturb the trial court’s order only upon an
      error of law or an abuse of discretion.

Alexander v. City of Meadville, 61 A.3d 218, 221 (Pa.Super. 2012)

(internal citations omitted).

      NBC contends first that the trial court erred as a matter of law in

holding that rock is a mineral based solely upon the scientific definition of

mineral. It argues that our Supreme Court in Butler rejected the scientific

definition when construing the meaning of minerals in reservations in private

deeds and confirmed that the meaning is “to be determined not by principles

of science, but by common experience directed to the discovery of

intention.” Butler, 65 A.3d at 898. According to NBC, in reaffirming that a

reservation of “coal and other mineral” in a private deed presumptively does

                                     -6-
J-A12032-15



not include natural gas and oil, the Butler Court acknowledged that the

common layperson’s understanding of “mineral” encompasses only materials

that are metallic in nature, such as gold, silver, iron, copper, and lead. See

Gibson, 5 Watts 34 (Pa. 1836); Dunham v. Kirkpatrick, 101 Pa. 36

(1882). NBC relies upon this language in Butler in support of its contention

that the non-metallic rock at issue is presumptively not a mineral.

      Additionally, NBC contends that it is clear from the language of the

Deed reservation that only coal and minerals beneath the surface that could

be removed and mined “subterrane” were included in the reservation. Rock

that could only be quarried rather than deep-mined was not contemplated

within the mineral reservation.

      Our courts have wrestled for almost two centuries with the meaning of

the term “mineral” in private deeds and conveyances. In Dunham, supra,

the Court acknowledged that virtually all inorganic materials are minerals in

the general sense, but that the meaning of the word as used in a deed

reservation or grant had to be limited in order to leave something for the

other party. The Dunham Court reasoned:

            It is true that petroleum is a mineral; no discussion is
      needed to prove this fact. But salt and other waters,
      impregnated or combined with mineral substances, are minerals;
      so are rocks, clays and sand; anything dug from mines or
      quarries; in fine, all inorganic substances are classed under the
      general name of minerals: Bou. L. Dic.; Wor. Dic.; Dana's
      Geology; Grey's Botany. But if the reservation embraces all
      these things, it is as extensive as the grant, and therefore void.



                                    -7-
J-A12032-15



      If, then, anything at all is to be retained for the vendor, we
      must, by some means, limit the meaning of the word "minerals."

Dunham at 44.

      In Gibson, one of the early cases to address the issue, the question

was whether a reservation in a deed of “all mineral or magnesia of any

kind”. . . “and all bricks and blocks of soapstone," included chrome. Gibson,

at 41. The Court noted at the outset that agreements should be construed

according to the meaning and understanding of the parties at the time they

entered into them.     While recognizing that minerals were usually of a

“metallic nature, such as gold, silver, iron, copper, lead,” the Court noted

that one of the parties to the conveyance testified that at the time of the

reservation, chrome was thought to be a metal of some kind, and perceived

as containing some gold or silver.    Id.   The Court found that the mineral

reservation included chrome.     Years later, in distinguishing the holding in

Gibson, the Dunham Court explained that while chrome would not

ordinarily have been included in the common sense of the term mineral, “the

parol evidence showed very clearly that the term "mineral" was introduced

into the exception for the express purpose of embracing the chrome.”

Dunham, supra at 44.

      Dunham involved a reservation “Excepting and reserving all the

timber suitable for sawing; also, all minerals; also, the right of way to take

off such timber and minerals."    Dunham, supra at 43.       Pursuant to that



                                     -8-
J-A12032-15



reservation, the defendants erected a derrick and drilled for oil. The issue

before the Court was whether petroleum was included in the exception for

"all minerals." The Dunham Court conceded that “the word ‘minerals’ in its

most comprehensive signification includes petroleum.”        Id.   However, the

question remained whether the parties to the agreement and deed used the

word in the expansive or restricted sense. The Court concluded that when

the contract was made, the parties did not intend to reserve the oil that

would subsequently be found or they would have expressed that “in no

doubtful terms.” Id. at 44. It posited that the parties were likely unaware

of the presence of oil at the time of conveyance or, if they knew of it, they

were mistaken in hoping to reserve it under the general term mineral, which

was not the common understanding of oil at the time. The Court held that

petroleum was not included within the reservation. This holding has become

a rule of property known as the Dunham Rule: the rebuttable presumption

that “if, in connection with a conveyance of land, there is a reservation or an

exception of ‘minerals’ without any specific mention of natural gas or oil, . . .

the word ‘minerals’ was not intended by the parties to include natural gas or

oil.” Butler, supra at 886.

      Much of the litigation surrounding the term mineral involves natural

gas or oil. However, in Hendler v. Lehigh Valley R.R. Co., 58 A. 486 (Pa.

1904), the issue before the court was whether “or other mineral” language

in a deed included sand. Hendler sold a fifty-foot right-of-way over his land

                                      -9-
J-A12032-15



to permit construction of a railroad. When the railroad used a large quantity

of sand taken from outside of the right-of-way, he sued in trespass to

recover damages for its excavation and taking.      At issue was whether the

reservation "excepting and reserving, however . . . . all the coal and other

minerals in, under, or upon said lot of land, and also reserving, as aforesaid,

the unrestricted right and privilege of mining and removing all of said coal

and minerals, or any part thereof” included sand.         Id. at 487.     In a

subsequent deed, there was a further exception for “all the gravel necessary

for any fill or ballast for the railroad.” Id.

      The Court noted that in the broadest sense, sand was a mineral. In

the scientific sense, its composition determined whether it was a mineral. It

concluded, however, that it was clear from the deed itself that the parties

did not use the word mineral in either of those senses because, under either

definition, gravel would have been included and there would have been no

need for a special exception.       The Hendler Court posited that perhaps

mineral should be viewed in the commercial sense and include inorganic

substances that are mined or quarried which have sufficient value when

separated from the land, “to induce the expense and labor of severance for

their own sakes.”     Id.   The Court suggested that a vein of fine marble,

granite, limestone or other building material, or pure white quartz sand used

in the production of glass, might fall within the reservation, but common

mixed sand used as grading material did not. Although the sand was not a

                                       - 10 -
J-A12032-15



mineral within the meaning of the reservation, the Hendler Court upheld

the award for the plaintiff on the alternative basis that the railroad took the

sand from the plaintiff’s property, carried it away, and used it on other

property.

      In Silver v. Bush, 62 A. 832 (Pa. 1906), the issue was whether a

reservation of mineral rights included natural gas.     Noting that the word

mineral was a word of general language and “presumably is intended in the

ordinary popular sense[,]” the Court recognized that in a particular case it

may have a different meaning.      Viewing the issue as one of contract, the

Court concluded that different meaning “should clearly appear as intended

by the parties.” Id. at 833.

      The Vosburgs direct our attention to a recent federal district court

decision in PAPCO Inc. v. United States Forest Serv., 814 F.Supp. 2d

477, 495 (W.D. Pa. 2011), addressing whether sandstone was included in a

reservation of “all the . . . minerals of every kind and description

whatsoever” in a 1931 deed. That court concluded, based on Hendler, that

the intention was to reserve all commercially valuable minerals, and since

the parties knew of the presence of sandstone and were likely aware of its

value, it was within the scope of the reservation.

      The Vosburgs cite PAPCO in support of the trial court’s conclusion that

commercially valuable rock is a mineral. However, the conclusion in PAPCO

was that the parties intended to reserve all commercially valuable

                                    - 11 -
J-A12032-15



minerals, limestone being one of those minerals. NBC contends that the trial

court herein did not determine the intent of the parties but merely relied

upon the scientific and geological definitions of a mineral in concluding that

the rock was included within the reservation as a matter of law.

       We agree with NBC that our courts, most recently Butler, have

repeatedly rejected the notion that the scientific or dictionary definition of

mineral is controlling when construing a coal and mineral reservation in a

deed. Butler reaffirmed the long-held belief that, generally, we must look

to the popular and common use of the word and the intent of the parties at

the time of the reservation or grant in construing its meaning.     Thus, the

trial court erred in relying upon the scientific definition of mineral as the

basis for its entry of partial summary judgment.

       However, in citing Butler for the proposition that there is a

presumption that the word “mineral” includes only ores and metals, not

rock, NBC misses the mark.            Language in Butler regarding the common

perception of minerals as metals did not create a Dunham-like rule with

regard to non-metallic rock.7 With the exception of oil and gas, where the

Dunham Rule applies in construing a mineral rights reservation, our primary
____________________________________________


7
  Butler reaffirmed the Dunham Rule, which provides that in a reservation
or an exception of 'minerals' in a conveyance of land, where there is no
specific mention of natural gas or oil, there is a rebuttable presumption that
the term “minerals” was not intended by the parties to include natural gas or
oil.



                                          - 12 -
J-A12032-15



object must be to ascertain and effectuate what the parties themselves

intended.   Mackall v. Fleegle, 801 A.2d 577, 581 (Pa.Super. 2002).         In

doing so, we must look first to the language of the deed.

     Rules for construing a reservation in a private deed were developed in

Brookbank v. Benedum-Trees Oil Company, 131 A.2d 103 (Pa. 1957)

and Yuscavage v. Hamlin, 137 A.2d 242 (Pa. 1958), and summarized in

Highland v Commonwealth, 161 A.2d 390, 398 (Pa. 1957):

     Among such rules are those providing: (1) the nature and
     quantity of the interest conveyed must be ascertained from the
     instrument itself and cannot be orally shown in the absence of
     fraud, accident or mistake and we seek to ascertain not what the
     parties may have intended by the language but what is the
     meaning of the words; (2) effect must be given to all the
     language of the instrument and no part shall be rejected if it can
     be given a meaning; (3) the language of the deed shall be
     interpreted in the light of the subject matter, the apparent object
     or purpose of the parties and the conditions existing when it was
     executed.

Id.; see also Ralston v. Ralston, 55 A.3d 736 (Pa.Super. 2012).             In

addition, reservations in deeds are to be construed against the grantor.

Wilkes-Barre Township School Dist. v. Corgan, 170 A.2d 97 (Pa. 1961).

     With these principles in mind, we examine the Deed at issue. We note

that there is no reference to rock, shale, or stone in the Deed.       In the

description of the property, stone corners denote boundaries, suggesting

that boulders were visible on the surface. Thus, we can assume from the

Deed itself that the parties knew about the presence of rock or stone and

that any reservation would reflect their intentions in this regard.        The

                                   - 13 -
J-A12032-15



reservation, however, makes no specific mention of rock, stone, or

quarrying.

     Furthermore, the Grantors did not reserve all coal and minerals, but

only coal and minerals beneath the surface. In addition, rather than reserve

all methods of extracting the coal and minerals, they reserved only one

method: “subterrane” mining, meaning underground mining. Moreover, the

Deed contains the parties’ agreement that no buildings or crops on the

surface would be disturbed by the subterrane mining, which evidences their

intent to preserve the surface and subjacent support for the benefit of the

surface owner.

     NBC contends that it is clear from the language of the Deed that only

coal and minerals beneath the surface that could be removed and mined

“subterrane” were included within the reservation. The Vosburgs maintained

throughout that, to the contrary, their predecessors’ reservation of minerals

“included by implication the right to enter upon the Fritz Parcel and to

remove coal and minerals where ever [sic] located subject to Defendants’

right of support.”   Plaintiff’s Answer to Defendants’ Preliminary Objections

[to amended Complaint], 2/26/03, at ¶11 (emphasis supplied).             This

included by implication the right to quarry on the property. In support of

that position, they point to the fact that the parties to the Deed were

involved in quarrying; Albert Vosburg owned a quarry on nearby property

and Anthony Fritz worked at the quarry.

                                    - 14 -
J-A12032-15



      We find merit in NBC’s construction of the language in the Deed. The

plain language of the reservation did not reserve to the Grantors the right to

all coal and mineral, but only to the coal and mineral beneath the surface

that could be underground mined.      We acknowledge that a reservation of

mineral rights generally confers reasonable use of the surface to access

those minerals, but reasonable access herein would be that necessary to

underground mine, not to open pit quarry or strip mine.

      We find no support in either the Deed or Pennsylvania law for the

Vosburgs’ contention that the reservation included the right to quarry on the

property.   Rochez Bros., Inc. v Duricka, 97 A.2d 825 (Pa. 1953), is

instructive in this regard.   Therein, the plaintiff became the owner of the

rights to two coal reservations in deeds. One reservation included the coal

underlying several acres, together with the right to mine and carry away all

of the coal, including draining and ventilating, without providing for the

support of the surface. The other reservation preserved “[t]he full, free, and

exclusive right to enter in, upon, and under, the lands hereby conveyed for

the purpose of exploring, drilling for, testing, and digging, mining, draining,

storing, shipping, transporting and operating said reserved coal, . . . without

liability for damages to the surface.” Id. at 825. The issue before the Court

was whether the reservations permitted the plaintiff company to remove

coal through strip mining methods or whether it was restricted to shaft

mining.

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J-A12032-15



       Our Supreme Court found that since strip mining stripped away the

surface and horizontally withdrew the mineral deposits, “as a can opener

lays bare the contents of a box of sardines,” no land owner or purchaser

would casually treat such rights. Id. at 826. The Court held that the right

to enter “in, upon and under the lands” for mining purposes contained no

right to remove the overlying surface. Id. Additionally, it noted that if the

grant was intended to include strip mining, the immunity for damages to the

surface would be meaningless and the right to ventilate would be

superfluous.     Our High Court construed the reservations as including only

underground mining, not the right to strip the surface by strip mining. See

also Wilkes-Barre Twp. Sch. Dist., supra (relying upon Rochez Bros.,

supra in interpreting coal reservation as including only right to vertically

mine, not strip mine); Stewart v. Chernicky, supra (The right to mine and

remove coal by deeds conveying land in language peculiarly applicable to

underground mining does not include the right to remove such coal by strip

mining methods.).8

____________________________________________


8
 Other jurisdictions have reached the same conclusion on similar facts. In
Beury v. Shelton, 144 SE 629 (Va. 1928), the court reasoned that if the
parties had intended to reserve limestone and the right to quarry, which
would have made the surface grant ineffectual, they would have done so
explicitly in the instrument. The court construed the proviso that the
"mining, digging and removing" of the minerals and metals "shall be done
with as little injury to the growing crops as conveniently and reasonably may
be," as indicating that the parties did not contemplate limestone, which
(Footnote Continued Next Page)


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J-A12032-15



      Since rock at or near the surface cannot feasibly be removed via deep

mining, and quarrying destroys the surface even more than strip mining, the

“subterrane    mining”       limitation    is    powerful   evidence    that   Vosburgs’

predecessors did not retain any right to quarry the rock or to the rock itself.

The obligation of the mineral rights owner to deep mine in a manner that

would not disturb buildings and surface crops is further proof that the right

to surface mine or quarry was not reserved.

      Nor are we persuaded by the Vosburgs’ assumption that because the

parties were     involved in quarrying,             quarrying was      the   purpose   for

reservation. There is no indication that the Grantors intended to reserve the

right to quarry on the property. Indeed, one would expect that if quarrying

was contemplated, the Grantors would have retained ownership of the

surface or specifically reserved the right to surface mine or quarry. They did

                       _______________________
(Footnote Continued)

could be obtained only by the quarry or open-pit method and concomitant
destruction of the surface, within the reservation.

      In Acker v. Guinn, 464 S.W.2d 348 (Tex. 1971), in determining
whether iron ore was a mineral within the meaning of the deed reservation,
the Court held that such a reservation should not be construed to include a
substance that must be removed by methods that will deplete the surface
estate, unless a contrary intention is clearly expressed.

      Since bauxite could only be removed via open pit-mining, and the
surface owner purchased the property for a home and farm, the court held
bauxite was not in the contemplation of the parties to the contract when this
reservation of mineral rights was made. Carson v. Missouri P. R. Co., 209
S.W.2d 97 (Ark. 1948).



                                           - 17 -
J-A12032-15



neither.9   One would have to question why Mr. Fritz would have paid any

sum for property that the Vosburgs would destroy by quarrying.

       Our reading of the Deed gives effect to “the apparent object or

purpose of the parties and the conditions existing when it was executed.”

Highland, supra at 398.             The Vosburgs’ proposed construction of the

reservation fails to give effect to the language limiting mineral rights to

those beneath the surface. One would also have to ignore the proviso that

access was limited to underground mining.          Additionally, since quarrying

destroys the surface, it is inconsistent with the contemplated use of the

surface for buildings or crops.

       Construing the reservation against the Grantors as we are compelled

to do, we find that the Grantors’ restriction of their reservation to coal and

mineral beneath the surface and removable via subsurface mining only

revealed no intention to include the rock herein, which was removable by

quarrying only.      This interpretation is ascertainable from the instrument

itself and gives effect to all of its language.



____________________________________________


9
   The Vosburgs aver that their predecessors entered the Fritz parcel by way
of a township road and “conducted open pit quarrying of hardened shale
located upon the Fritz Parcel before and after the conveyance of the surface
of the Fritz Parcel.” Plaintiffs’ Answer to Defendants’ Preliminary Objections,
1/5/03, at ¶9. Such a claim, even if substantiated, does not alter the plain
language of the reservation.



                                          - 18 -
J-A12032-15



       By construing the reservation in the 1951 Deed as excepting only coal

and mineral beneath the surface and extractible by deep mining, we

conclude that the rock herein was not included within the mineral

reservation.10 Thus, it necessarily follows that there was no trespass to the

reserved mineral rights of the Vosburgs, and the processing and crushing of

the rock did not constitute a conversion. For these reasons, we reverse the

grant of partial summary judgment in favor of the Vosburgs and remand for

the entry of summary judgment in favor of NBC.

       Order granting partial summary judgment reversed. Case remanded

for entry of summary judgment in favor of NBC. Jurisdiction relinquished.

       Judge Donohue joins this opinion.

       Judge Allen files a dissenting opinion.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/2/2015



____________________________________________


10
  Since we determined that the parties did not intend to include rock within
the mineral rights reservation, it was unnecessary to decide whether the
rock herein constituted a mineral.



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