
    EVERHART VS. SHOEMAKER.
    In partition It is incumbent upon the party instituting the proceedings, if practicable, to embrace in the action all the undivided property within the jurisdiction- of the Court.
    Findings of fact in the Court below, foreign to the specific issue raised by the pleadings, will be stricken out, so that the parties are not prejudiced by them, in other litigation respecting the title to the land.
    Error to Common Pleas of Luzerne County, No. 468 January Term, 1885.
    This was an action of partition brought by Lazarus D. Shoemaker against Benjamin M. Everhart, James B. Everhart, John R. Everhart, Thomasine M. Everhart and Mary T. Everhart.
    . The case was tried before the Court without a jury, and the Court awarded partition to. the plaintiff below • in the following ■Opinion, per:
    Rice, P. J.
    This is an action of partition,, which was tried before the Court without a jury, in accordance with the provisions of the Act of April 22, 1874. (P. L. 109.)
    The plaintiff’ filed his declaration. October 29, 1883, in which Tie alleged, inter alia, that, “the said plaintiff and defendants hold together and undivided a certain parcel or tract of land, consisting of a certain coal bed or stratum of coal already opened, being, lying, and situate on a ran or small stream near the house where Andrew Mock formerly lived, and underlying such a part of lot numbered ten originally in the third division of lots in Wilkesbarre Township, Luzerne County, Pennsylvania, now Plains Township, in said County, as was owned by said Andrew Mock, on the fifth day of March, 1827, amounting to eighty acres or thereabouts, the surface of which is thus described : Beginning at a corner in line between lots numbered nine and ten, where lands heretofore belonging to Charles Miner adjoined those of Andrew Mock ; thence north sixty-one degrees west, about four hundred perches, to a corner of land formerly of Henry Courtright; thence south thirty-two degrees west, about thirty-two perches, to a corner in line dividing lots numbered ten and eleven ; thence south sixty-one degrees east, along said dividing line between lots ten and eleven, about four hundred perches, to a corner on line of land heretofore belonging to Charles Miner; and thence north twenty-nine degrees east, about thirty-two perches, to the place of beginning.” The declaration contains the further allegation that the plaintiff “is the exclusive owner in fee simple of the surface of said tract of land herein-before described, as well as of all the coal and other minerals underlying the said surface, and the said coal bed or stratum of coal.”
    On February 12,1884, the defendants entered the plea formally, “non tenent insimul.” It was agreed upon the trial that if judgment quod partitio fiat should be entered, the interests of the defendants, as between themselves, should remain undivided, the same as if they had filed an election to that effect in accordance with the terms of the proviso in Section 1 of the Act of February 5,1821 (7'Sm. L. 358.)
    For purposes of convenience we have annexed hereto a copy of the map of the surface of the premises, and wherever the same is hereafter referred to it is made a part of these findings. Without further preliminary remarks, the following findings of fact and conclusions of law are stated:
    I. The premises in suit constitute part of certified lot No. 10, 3d division, Wilkesbarre (now Plains) Township, in said County.
    
      The titles under which the parties hold are derived from George Gore, to whom the land was patented March 12, 1811. The overlying surface'of the premises in suit embraces those portions of the land thus patented, which are designated on the accompanying map as “A” and “B.”
    II. "Without reciting the several conveyances, it suffices to say, that in 1815 the title to the surface of “A” and “B,” the title to all the coal under “A,” and the title to an undivided one-half part of all the coal under “B” became vested in Andrew Mock.
    III. The title to the other undivided one-half part of the coal under “B” was, on the date last mentioned, vested in Cornelius Courtright.
    IY. The titles continued to be held as aforesaid until March 5,1827, when Andrew Mock and wife conveyed to Henry Court-right the following described property, namely (quoting the language of the deed): “The one equal undivided half part of a certain coal bed or body of coal being and lying on lot No. 10 in the third division of lots of Wilkesbarre Township, commonly called back lots, situate on a fun or small stream near the house where I, the said Mock, formerly lived ; and I do hereby fully bargain, sell, release and confirm unto the said Henry Courtright, his heirs and assigns, the one equal undivided half part of the above described coal bed as -far as it is or may extend on lot No. 10, together with the privilege of a road to and from said coal bed where it may be most convenient for said Courtright to freely use it any time without molestation or hindrance.”
    Y. On April 2,1830, Henry Courtright and wife conveyed the property last described to William Everhart, and upon the death of William Everhart the title thereto became vested in the defendants, who are his heirs.
    YI. By deed, dated September 13, 1850, L. D. Shoemaker, the plaintiff, acquired all the remaining interest and title of Andrew Mock in the land, both surface and coal, and on December 17, 1855, by sundry other conveyances, he acquired the title to that undivided one-half part of all the coal under “B,” which had been vested in Cornelius Courtright in 1815, as aforesaid.
    
      VII. Eor a period of ten or twelve years, commencing about tbe date of his purchase in 1815, Andrew Mock lived upon the tract, his house being situated on “B,” at or near the point indicated on the accompanying map.
    VIII. Before Andrew Mock’s occupancy of the land, an opening for coal had been made thereon, at a distance of about thirty rods from the site of his house, and on the left bank (ascending) of a small stream which crosses the tract. This opening, is located on “B it is still to be seen, and is designated on the accompanying map as the “Mock coal bed.” In 1827 there was, and had' been, no other opening for coal upon the tract.
    IX. Coal had been taken from this opening before Andrew Mock’s occupancy of the land. Also, during his occupancy, and since, coal was dug therefrom by him and some of the neighboring families, but the bed has never been mined to any considerable extent.
    X. The foregoing facts (VII., VIII., IX.) are explanatory of the description in the deed from Andrew Mock to Henry Court-right, dated March 5, 1827, under which the desendants hold and show, as we conclude, that, in fact, the coal bed referred to in the deed was that which had been opened as above described, and which underlies “A” and “B” on the accompanying draft.
    XI. ’Without at this time entering into a discussion as to the materiality of this fact in the present issue, or as to the conclusiveness of the finding in any subsequent issue between the parties, we also find, from the parol testimony introduced by the plaintiff, that in 1827, when the deed last mentioned was executed, the term coal bed signified, according to local usage, a deposit of anthracite interposed between upper and lower measures of fire clay, slate, or rock of sufficient stability to admit of the mining out of that deposit.
    Our conclusions of law are as follows :
    I. By virtue of the foregoing conveyances, the said plaintiff and defendants became entitled to and now hold together and undivided as tenants in common, all that certain coal bed or stratum of coal which had been opened, as stated in the foregoing findings of fact, and which underlies the surface of the tract of land described on the accompanying draft as “A” and “13,” the same being the coal bed or stratum of coal described in the declaration.
    II. The said plaintiff has the title to one equal undivided half part of said coal bed or stratum of coal, and the defendants have the title to the other undivided one-half part thereof.
    III. The said plaintiff is entitled to judgment, and a writ to make partition whereby his proportion or purpart, as aforesaid, shall be set out to him in severalty.
    And now, March, 1885, it is ordered that notice of the foregoing decision be given to the parties or their attorneys and if no exceptions thereto are filed within the time allowed by law, that then judgment be entered by the Prothonotary in accordance with this decision.
    The Everharts then took a writ of error assigning as error inter alia: “The learned judge erred in entering the judgment in the Court below, because such judgment, if unreversed, may be pleaded in bar as res adjudícala against any claim which the plaintiffs in error may hereafter make to any share of any other coal underlying the tract aforesaid, excepting only that within the seam or stratum showing at the old Mock opening as it was attempted by the result of this'action to preclude them from making such further claim.” They also complained of the tenth and eleventh conclusions of fact and the conclusions of law.
    
      A. Farnham, Henry M. Hoyt and J. B. Townsend, Esqs., for plaintiffs in error
    argued that partition cannot be made when the interest of the parties is not certain ; Mountjoys Case, Coke on Littleton, page 165 A.; Miller on Partition, 45 & 46, Freeman on Partition, Sect. 438; Miller vs. Miller, 13 Pick 237. The judgment of the Court below if not corrected will preclude the plaintiffs in error from asserting their claim -to other veins of coal in the same tract. Parol testimony was not admissable ; the interests of the parties depended upon the wording of the deed; Christine vs. Whitehill, 16 S. & R. 98; Buck vs. Fisher, 4 Wharton 516; Collam vs. Hocker, 1 R. 108; Bertsch vs. Lehigh Coal & Nav. Co., 4 R. 130; Penna. & N. Y. C. & R. R. Co., 1 W. N. C. 368; Caldwell vs. Fulton, 31 Pa. 475.
    
      
      H. W. Palmer, J. McGahren and G. M. Harding, Esqs. contra,
    
    argued that parol evidence is admissable to explain latent ambiguities, local terms, and terms of art in writings; Noonan vs. Lee, 2 Black U. S. 499; Iddings vs. Iddings, 7 S. & R. 111; Vernor vs. Henry, 3 Watts, 385; Brown vs. Brooks, 25 Pa. 210; Barnhart vs. Riddle, 39 Pa. 92; Aldridge vs. Eshleman, 46 Pa. 420. A “bed” of coal means -one seam or stratum, and not all the coal, when there are more than one seam; Turner vs. Reynolds, 23 Pa. 200; Gloninger vs. Franklin Coal Co., 55 Pa. 9.
   The Supreme Court struck out the tenth and eleventh findings of fact and modified, and then affirmed the judgment of the Common Pleas on May 29, 1885, in the following opinion, per:

Clark, J.

The proceedings in this case were instituted to effect the partition of a certain specific stratum or seam of coal, which, it is averred in the declaration, the plaintiff and the defendants hold together and undivided, beneath the surface of a tract of eighty .acres of land in the County of Luzerne. This particular averment is not now denied, nor is the finding of the Court to that ■effect assigned for error. The plaintiff’ further avers, however, that he is the owner.in severalty and fee of all the surface land •and of all other superincumbent strata or seams of coal which may be found on the said land, and this averment the defendants do deny. The defendants’ claim would seem to be for the one undivided half of all the coal which may be found to underlie •the surface. ■ The extent and validity of the respective claims of the parties depend upon the proper construction of the deed of ■conveyance, dated March 5th, 1815, from Andrew Mock to Henry 'Courtright, under which the defendants derive their title ; but the construction of this deed is, we think, not essential to the proper determination of the issue raised by the pleadings. The issue is exclusively upon the title of the seam or stratum specified, the ownership in common of which is averred in the declaration and denied in the plea ; and as nothing can be covered by •the adjudication whicü is not involved in the issue thus presented, •we do not think that the defendants’ rights can in any way be ^prejudiced by the mere averment of a matter, the truth or falsity of which is not determined by the judgment.

This averment was doubtless inserted, out of abundant caution, as matter of description or of identification, and to direct the proceedings with certainty to the precise seam or bed of coal intended.

In partition, however, whether in the Common Pleas or in' the Orphans’ Court, it is without doubt incumbent on the party instituting the proceedings, if practicable, to embrace the whole of the undivided realty within the jurisdiction or power of the Court. There cannot be inquisitions upon it, by parcels, such a course of proceeding would, through the exercise of the right of election, as fixed by law, give unfair and unjust advantage to-those first entitled. There should, in general, when the title and possession' is certain and determined, be but one inquisition, embracing all the lands, tenements and hereditament held and possessed by the parties, together and undivided, within the reach of the writ; and the record in all cases will, upon proper application, be made to conform to and commensurate with the rights of the parties. We do not say that the omission of any of the-parcels from the partition would upon any principle of estoppel, or otherwise, affect the estate or title of the parties, or of either of them, but we do say that it is the right of both to have the whole embraced in the proceedings, if that right is not waived.

In this case, however, no application to extend the proceedings has been made; we do not understand the defendants to be objecting to the judgment entered in the Court below, quodpartitio fiat, if by that judgment they are not prejudiced in their further claim, to the remaining strata, if any such there be; and the ¡case is certainly novel and exceptional, in that it does not certainly appear that there are, in fact, any other strata or seams of coal upon which the contention of the parties may operate. The learned judge of the Court below has stated his conclusions of fact and of law in separate and distinct paragraphs, and, for convenience of reference, we may, in alluding to them, use the numerals by which they have been respectively designated in ■ his report.

The conclusions of fact at paragraphs X and XI are findings which are foreign to the specific issue presented by the pleadings, and, in view of the doubts expressed by counsel, and entertained by some of the members of this Court, as to the legal effect of a judgment entered thereon, we are of opinion that these findings •■should be stricken from the referee’s report. No matter of this importance should be left doubtful upon the record.

Therefore, the finding of the Court contained in paragraphs X .and XI are stricken out, and it is further adjudged that the judgment entered in this case is without prejudice to the i-ights and interests of either party, as respects the title and ownership •of such seams of coa.1 as may be found to underlie the surface of the said tract of land other than the proper seam described in the declaration; and, with this modification, the judgment is affirmed. . ■  