Lazarus v. Lehigh & Wilkes-Barre Coal Co.

Mr. Justice Elkin,

Dissenting Opinion by July 1, 1914:

I am not familiar with any rule of law which gives a lessor the right to lease and receive royalties for coal owned by someone else. If the averments of the affidavit of defense are true, and this is a question of fact under the pleadings, the coal in dispute herd belongs to defendant, and if this be true, the lessors will be permitted to recover royalties for coal to which they have no title, and the lessee will be required to pay parties without title for coal mined and removed from its own premises. The technicalities of the law should not be permitted to make such a result possible. In Lazarus v. L. & W. B. Coal Co., 228 Pa. 532, the affidavit of defense was held to be insufficient, but this was put upon the ground that the averments of the affidavit did not show chain of title out of the Commonwealth, or how the title became vested in defendant. It was held to be deficient for this reason. In the case at bar the affidavit avers ownership of the coal in question to be in defendant and sets up chain of title from the Commonwealth. This corrects the deficiency suggested in the case above cited.

I would hold the affidavit to be sufficient so that the case could be tried upon its merits.