Opinion by
Morrison,This is an action of trespass brought by the plaintiffs to recover damages from the defendant caused by the construction and operation of a railroad over the surface of certain lands owned by the plaintiffs, they having conveyed to the defendant all of the coal underlying the same with the rights and privileges contained in the following clause in the deed : “ Together with the free and uninterrupted right of way into, upon and under said land at such points and in such manner as may be proper and necessary for the purpose of digging, mining, coking, ventilating, draining and carrying away said coal, etc., (hereby waiving all surface damages, or damages of any sort arising therefrom, or from the removal of all of said coal), together with the privilege of mining and removing through said described premises other coal belonging to said party of the second part, its successors and assigns, or which hereafter may be acquired.”
After issue joined the parties waived a jury trial and referred *292the cause to the court under the act of April 22, 1874, P. L. 109 agreeing that if the court shall, upon trying said case, render judgment for the plaintiff, the damages shall be assessed at the sum of $1,000, and judgment entered for that sum with costs.
The learned court upon careful findings of fact and conclusions of law and an elaborate discussion of the questions involved, held that the clause above quoted did not grant to the defendant the right to construct and maintain the railroad in question and that by such construction and operation of the railroad the defendant was a trespasser, and entered judgment in favor of the plaintiffs and thereupon the defendant appealed to this court.
At the argument it was contended that the learned court was in error, and that the clause in question, with certain parol evidence, entitled the defendant to construct and operate the railroad in question. First: On proper construction of the language above quoted, helped out by certain parol evidence of the construction put upon it by the parties at the time.the agreement and deed were executed; and second: That the evidence was sufficient to establish a parol license in the defendant to construct and operate the railroad. But upon careful consideration of the evidence, the findings of fact, conclusions of law and arguments of the respective counsel, we are of opinion that the learned court reached a correct conclusion.
As to the parol testimony, we think it is not sufficient to control the construction of the written covenant. Moreover, the .court declined to find as a fact that S. C. Farrar agreed with the representatives of the defendant at the time the deed was executed, that the defendant might use the surface of the lands for constructing and maintaining a railroad for the transportation of coal from other lands. As to the parol license, an examination of the testimony convinces us that tbe case was not tried on that theory. It may be conceded that, if it had been so tried and that question raised, the learned court might have found in favor of or against such parol license, the testimony on that point being in dispute.
The court found as a fact that S. C. Farrar had authority, as agent for his brother, to make the sale and agreement for the conveyance of the coal, which was subsequently consum*293mated by tbe deed executed by both of the Farrars. But a serious question would arise as to the power of S. C. Farrar to bind John Farrar, by parol agreement, that the defendant company might construct railroads across the Farrar farm for the transportation of coal from other lands.
The parties put their agreement and conveyance in writing and we are of opinion that the learned court was fully warranted, under all of the evidence, in the construction put upon the deed. It seems to us that, in view of the importance of the transaction and the fact that eminent counsel were consulted, the right to construct and operate the railroad would have been plainly provided for in the writings, if the same had been in the contemplation of the parties. It is not contended, in the very able argument for the appellant, that anything was left out of the agreement and deed by fraud, accident or mistake. Nor is it contended that the writings were executed on the faith of any parol agreement without which they would not have been executed.
In view of the discussion of the questions involved and'the citation of authorities by the learned court below, we do not consider it necessary to enter into a further discussion of the questions raised in this record. Ve are satisfied with the decision of the court below and think the reasons given sustain the judgment.
The assignments of error are all dismissed and the judgment is affirmed.