dissenting:
The majority has failed to address the inequity of allowing land to stay unproductive in the hands of a lessee when there are profitable and beneficial uses available to the lessor. I must, therefore, respectfully dissent.
The majority decides that the trial court should not have regarded the southern parcel as a separate block of land because it paid consideration for the lease of the whole property, the use of the parcel for other purposes was an expressly stated benefit of the lease, and the lease did not contemplate subdivision of the land. I disagree. In Frenchak v. Sunbeam Coal Corp., 344 Pa.Super. 37, 44, 495 A.2d 1385, 1389 (1985), this court stated that “ ‘[i]t is against the policy of the law to unduly restrict the use of land so that the owner is deprived of the usual rights, privileges, and incidents of ownership and possession.’ ” Id, 344 Pa.Superior Ct. at 41, 495 A.2d at 1387.
I think this policy is applicable to the instant case. Were the lease not terminated the resultant non-use of the land would be wasteful and unproductive. If mining the southern tract is no longer economical or practical, allowing the coal mining lease to continue with respect to that parcel would severely circumscribe other profitable and beneficial uses of the land. Frenchak, supra. We must always be mindful that equity abhors a forfeiture. However, we must also consider that when a forfeiture does equity, as it would in this case, the interest in using the land productively outweighs the nonessential and inefficient uses of the tract. *36See Frenchak, 344 Pa.Super. at 43, 495 A.2d at 1389. Therefore, the trial court’s decision to treat the tracts separately was not, in my opinion, erroneous. Interstate 80, a limited access highway, effectively separated the two parcels, severely limiting the access between the two parcels. Furthermore, the record reveals that the two tracts had separate mining permits and were run as two separate operations. I would conclude, therefore, that the trial court did not abuse its discretion or commit an error of law in deciding that the original tract should be divided into two parcels. Federal Kemper Ins. Co. v. Neary, 366 Pa.Super. 135, 139, 530 A.2d 929, 930-31 (1987); Lombardo v. DeMarco, 350 Pa.Super. 490, 495, 504 A.2d 1256, 1258 (1985).
The majority also concludes that, where a lease provides for permissible uses such as constructing and operating roads for mining purposes, keeping machinery and other equipment on the land, hauling coal over the premises from other lands, and using the land as a coal yard, the lease should not terminate simply because the coal mining has ended. This discussion fails to recognize the present nature of the land in question. The parcel has been intersected by a limited access interstate highway. This highway impedes travel and access to the southern parcel and thus frustrates the benefit of the additional uses provided for in the lease.
Therefore, I would apply the general rule used to examine coal leases. A coal lease grants the lessee the right to remove the coal beneath the surface; however, when that coal supply is exhausted or unmerchantable, “all of the estate is consumed or reverts back to the owner of the surface.” United States Steel Corporation v. Commonwealth, Dept. of Environmental Resources, 17 Pa.Commw. 594, 333 A.2d 486, 488 (1975). The trial court found that the coal of merchantable quality and quantity from the parcel had been exhausted. Since the trial court determined that the lease, by its own terms, provided for termination upon the exhaustion of the coal, the trial court correctly terminated the lease. The other uses for the land that Shawville contends should require the lease to remain *37intact with respect to the southern parcel are all peripheral, secondary uses stemming from its right to mine coal.1 As stated earlier, the southern parcel is now a separate and distinct parcel of land. Permitting Shawville to retain the unprofitable southern tract while the coal in the northern parcel is mined would permit Shawville to hold the unused tract perpetually. See Hutchison, 513 Pa. at 202 n. 5, 519 A.2d at 390 n. 5 (“a lease will not be construed to create a perpetual term unless the intention is expressed in clear and unequivocal terms”).
After a complete review of the trial court’s decision, I find that the trial court committed no error of law or abuse of discretion and that its decision was supported by competent evidence. See Federal Kemper, supra; Lombardo, supra. Therefore, I must respectfully dissent.
. Furthermore, denying Shawville the tangential uses of the southern tract should have no affect on its operations as Shawville worked the two tracts separately.