<!"3estate.htm!"> PA 3rd Estate

Pennsylvania's "Third Estate" in Land

The 1878 deed from the Pennsylvania Coal Company to Alexander Craig, future father-in-law of Plaitiff H.J. Mahon, Esquire, provided, in part, as follows:

Excepting and reserving to the said Pennsylvania Coal Company, their successors and assigns all the coal and other minerals under, in or upon said lot of land. And also the right and privilege of mining and removing all the coal and other minerals under and upon said lot of land and of making and driving tunnels, passages and ways under the surface of said lot of land for the purpose of mining any coal owned by the said Pennsylvania Coal Company, their successors and assigns on said land or any adjoining lands as fully and entirely as if the said Pennsylvania Coal Company, their successors and assigns remained the owners in fee of said surface or right of soil, the said Pennsylvania Coal Company, not to transport the coal and other minerals hereby reserved upon the surface of said lot, but in all other respects to be at liberty to mine and remove the same and to make and drive tunnels, passages and ways under said surface of said lot without objection or hindrance, and not to be liable to the said Alexander Craig, his heirs or assigns to or for any injury or damages that may occur by reason of mining and removing said coal or other minerals or by reason of making and driving said tunnels, passages or ways. And it is hereby expressly understood by the party of the second part, that the said party of the first part have before the date of this conveyance and before the date of the agreement in the presence of which this deed is made mined coal upon and under said lot and that the said party of the second part takes said lot as the same now is with all the risks attendant therefrom and waives all claim upon the party of the first part or their successors for any injury or damage that may hereafter arise from the mining out of said coal under said lot.

Pennsylvania Coal Co. v. Mahon, Record at 6-9.

This language reserved to the Coal Company an estate in the land known as the "third estate." The following quotation from Smith v. Glen Alden Coal Co., 347 Pa. 290, 304, 32 A.2d 227, 234-5 (1943), is frequently cited for Pennsylvania's unique view. "It is well recognized in Pennsylvania that there may be three estates in land, namely, coal, surface, and right of support, so that one person may own the coal, another the surface, and the third the right of support. Charnetski v. Miner's Mills Coal Min. Co., 270 Pa. 459, 113 A. 683 [(1921)]."

In Penman v. Jones, 256 Pa. 416, 100 A. 1043 (1917) and Charnetski, surface owners were denied recovery for subsidence damage to their properties from mining. A third party, not the mineral estate owner, owned the estate in support. In effect, the Pennsylvania court recognized that a prior owner in the chain of title to the minerals and surface had retained the estate in support when conveying each of the other estates. This position has been soundly criticized. Montgomery, "The Development of the Right of Subjacent Support and the 'Third Estate' in Pennsylvania," 25 TEMPLE L. REV. 1 (1951). Nevertheless, the Pennsylvania courts continue to describe the right of support as an "estate in land." Hetrick v. Apollo Gas. Co., 415 Pa. Supererior Ct. 189, 608 A.2d 1074 (Pa. Superior Ct. 1992); Captline v. County of Allegheny, 74 Pa. Cmwlth. Ct. 85, 91, 459 A.2d 1298, 1301 (1983), cert. denied, 466 U.S. 904 (1984), appeal after remand, ___ Pa. Cmwlth. Ct. ____, 662 A.2d 691 (1995).

Pennsylvania is unlike any other state in that, here, the right of a overlying strata of land, if owned as an estate separate from the strata below it, to receive support from lower strata can have the dignity of a fee simple estate in land. In all other states, the right to receive support from lower lying strata is treated as a servitude or a natural right of the upper strata. In these other states, the owner of the upper strata may waive this right of support by contract, of course. But that right of support can not exist independently of the upper strata's ownership. For a full treatment of the right of support in Pennsylvania and other eastern states, see Henry McC. Ingram, Regulation of Mine Subsidence Legal Issues Raised by Government Intervention in Historically Private Arrangements, 5 EASTERN MIN. L. INST. ch. 6 (1984).

C. A. Fox

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