Argued May 26, 1932. The ancestors of appellants in 1873 leased an anthracite coal property for the term of five years. In 1876 this lease was cancelled and a new though similar lease was substituted for it by appellee, who had acquired the premises from the previous owner and lessor. The new lease was for the term of ten years. Both leases gave the lessees the right to "deposit the slate, dirt, and other refuse, either from the breaker or from the mine, in such convenient places as the party of the first part, or their engineer or agents, might direct."
When the first lease was made, there was in existence a large bank where prior operators had deposited refuse from the mine since 1837. Appellants' predecessors, during the thirteen years of their operation, continued to use the same bank. At the expiration of their last lease, or in 1886, the lessees quit the premises and appellee thereafter operated the mine, during which time it continued to cast refuse from its operation over and upon the same bank.
In addition to the refuse and debris, there had also been deposited what was then considered unmarketable and unsalable coal. In 1904, appellee being in possession, reclaimed some of the coal from the bank, and in 1917 continued to reclaim it on a larger scale. Appellants being the heirs of the lessees of 1876, claimed this coal and, in 1922, instituted this action in trespass on the theory that as the title to it was still in them, the action of appellee amounted to a conversion of their property, which was estimated at 1,500,000 tons, of a value of $3,000,000. The court below directed a compulsory nonsuit, and in refusing to take it off stated: "At the time of such deposit, it is clear there was no thought of subsequent reclamation of coal from these banks, and such material, when cast thereon, and as cast thereon, was intentionally and purposely abandoned."
Abandonment includes both the intention and the external act by which the intention is carried into effect; *Page 502 intention may and indeed often must be inferred from acts. Ordinarily abandonment is a question of fact to be determined by the jury, under all the circumstances of the case. It is only where all the essential facts on which it is based and the inferences drawn therefrom establish the fact with reasonable certainty, free from doubt, that the question can be withdrawn from the jury, and abandonment be declared by the court as a matter of law. See Patterson v. Williams, 52 Pa. Super. 299. When considering the question of abandonment the nature of the property, and the conduct of the one who claims it, must be given due weight: Russel v. Stratton, 201 Pa. 277.
There is no doubt but that appellants could have recovered the coal if they remained lessees of appellee's property, but at the expiration of their lease, having surrendered the property without reserving or even mentioning any claim to any part of the material left in the bank, under these facts a different question is presented. Appellants and those under whom they claimed not only completely relinquished control, but their acts show an intentional abandonment of that property remaining on appellee's premises. While coal, when severed from the earth, becomes personal property, it may be abandoned as such when it is left on the land of another with the intention of abandoning it. It will be noted that the paragraph reserving the right to deposit slate, dirt, and refuse does not include unmerchantable coal unless it was then considered as refuse and dirt, and when so considered appellants' contention loses much force, for it would seem by the mere act of casting away dirt or refuse they waived any further claim to it.
Here the coal had remained on the premises in the possession of appellee since 1886; during all of the time until the bringing of suit in 1922, these appellants did nothing to assert their right, if they had any. Prior to 1904 they stood by without protest and knowingly permitted appellee to dump the same materials over what *Page 503 they now claim as their property. In that year appellee, in reclaiming the coal from the bank, asserted a right to the property left by appellants that could not be reconciled with appellants' claim of ownership. It was the notice to them that the appellee claimed to own the coal. Whether the coal in contest be regarded as personalty or realty because of its nature, character and location, is immaterial; appellee's continued, open, notorious, adverse possession of the bank from 1886 to 1922 placed the matter at rest. Appellants' ancestors made no assertion of any right to the bank and exercised no claim to ownership over it and of all persons they should have known what they owned. When they quit the premises, they sold to appellee all of their personal property, which included all the loose coal that had been mined inside the workings. The lessees and their heirs continued the policy of noninterference for forty years while appellee was continuously asserting rights therein. This so conclusively established an abandonment that no jury should have been permitted to guess to the contrary.
We need not discuss the question further as this case is ruled by Fidelity-Phila. Trust Co. v. Lehigh Valley Coal Co.,294 Pa. 47. What is there said controls all the material elements in this case. The cases cited by appellants were clearly distinguished in the Fidelity Case, and they do not have any application to the case at bar. We are not undertaking to decide that a landlord may appropriate the property of a tenant to his own use after the latter moves from the premises.
Judgment of the court below is affirmed. *Page 504