
    No. 557
    PASKELL et v. YANNELLI
    No. 19768.
    Supreme Court
    On motion to certify.
    Dock. April 12, 1926.
    765. MINES AND MINING — Where coal is granted with the right to mine and remove the same with “so much of the surface as may be necessary in mining and removing of said coal - - - - and no more,” may the grantee put an opening in the front yard of the holder of the fee when it is not absolutely necessary but merely convenient?
    Attorneys — Meyer & Crossan, Zanesville, and J. E. Powell for Paskell; J. L. Meenan for Yannelli; all of New Lexington.
   Charles Yannelli was granted the following property in certain land in which John Paskell and Mary Paskell later was granted the fee:

“All the coal therein and thereunder of every variety, with the right to mine and remove the same in perpetuity, together with so much of the surface as may be necessary in mining and removing of said coal,----and no more.

There is no physical reason why all of this coal could not have been mined from one opening. The owners of the coal made four openings on this small tract of land, to this coal, and now propose to make the fifth opening in Paskell’s front yard. To this fifth opening, Paskell objected and Yannelli obtained an injunction restraining all interference while he dug such opening.

The Perry County Common Pleas refused to grant the injunction but the Appeals granted a permanent injunction as prayed for.

Paskell, in the Supreme Court, contends:

1. That since the evidence shows that all of the coal can be taken from openings now on the premises it is a question of law whether Yannelli having elected to take the coal from openings on the north and northeast side, can exercise the right of further openings, without showing some necessity therefor.

2. That under 39 OS. 70 the following rules applies: “Where the terms of a grant are general and indefinite, its location and use by the grantee acquiesced in by the grant- or, will have the same legal effect as if it had been fully described by the terms of the grant.”  