OPINION BY MUSMANNO, J.:

Texas Eastern Transmission, LP ("Texas Eastern") appeals from the Order granting partial summary judgment against it and in favor of Pennsylvania Services Corporation, trading as Emerald Coal Resources, LP, and Pennsylvania Land Holdings Company, LLC (collectively, "Emerald"), and declaring the parties' rights as to the support estate underlying gas transmission pipelines owned by Texas Eastern.1 We affirm.

Emerald operates a full extraction coal mine in Greene County, Pennsylvania. Texas Eastern operates five interstate pipelines, which traverse property above Emerald's mine. Four of the five Pipelines are active, and all are buried several feet below the surface.

The Pennsylvania Department of Environmental Protection ("the Department"), in 2010, issued a permit ("Permit") authorizing Emerald to conduct full extraction mining operations, by longwall system,2 in an area of the mine known as "D District." The Permit included the following condition:

Complaint, Exhibit A. Emerald and Texas Eastern were unable to reach an agreement regarding mitigation measures.

On July 14, 2011, Emerald filed a five-count Complaint against Texas Eastern, seeking declaratory relief. Emerald averred that it could not fully extract its coal underlying Texas Eastern's Pipelines, by longwall system,

Complaint, ¶ 3. Emerald claimed that Texas Eastern interfered with Emerald's superior property rights by its refusal to plan for, implement and pay for appropriate mitigation measures. Complaint, ¶ 5. Emerald's Complaint sought a declaration recognizing its superior property rights, and interference of those rights by Texas Eastern's inaction. Complaint, ¶¶ 74-79. Emerald also sought injunctive relief

Complaint, at p. 16. Emerald pled additional counts sounding in trespass (Count IV) and private nuisance (Count V).

On August 19, 2011, Texas Eastern removed the case to federal court on the ground that the "complete preemption doctrine" confers federal-question jurisdiction.3 The federal court disagreed, holding that

Pa. Servs. Corp. v. Tex. E. Transmission, LP, 2011 U.S. Dist. LEXIS 117559, at *3-*4 (W.D.Pa.2011). On that basis, the federal court remanded to the Court of Common Pleas of Greene County for disposition of the matter under Pennsylvania law. Id. at *4.

Before the common pleas court, Texas Eastern filed Preliminary Objections to Emerald's Complaint, which the trial court denied. Trial Court Order, 1/10/12. Thereafter, Texas Eastern filed its Answer, New Matter and Counterclaims. Texas Eastern's counterclaims sought declaratory and injunctive relief. Texas Eastern averred that the Pipelines were constructed prior to 1967; the predecessors of Emerald knew or had reason to know of the Pipelines above their coal estates; and the Pipelines would be materially damaged as a result of Emerald's intended mining. Counterclaims, ¶¶ 17, 19. Texas claimed that the right of Emerald (and its predecessors) to seek just compensation for the coal estates in D District accrued not later than when the Pipelines were constructed, and the statute of limitations for any such action has expired. Id., ¶¶ 23-24. Texas Eastern further claimed that the waivers of support, relied upon by Emerald, do not permit the removal of subjacent support for the Pipelines through the type of mining planned by Emerald. Id., ¶ 29. Texas Eastern claimed ownership of the right to subjacent support of the Pipelines; that it had acquired the right to subjacent support by means of a de facto taking or through adverse possession/prescriptive easement; and that Emerald was liable to Texas Eastern for trespass, negligence and unjust enrichment. Id., ¶¶ 33-70.

Emerald filed a Motion for Preliminary Injunction on May 17, 2013. Emerald sought injunctive relief requiring Texas Eastern to plan and complete mitigation measures, and to pay for those measures. After the close of discovery, Emerald filed a Motion for Partial Summary Judgment in its declaratory judgment action, seeking a declaration that Emerald owns the coal estate, support estate and mining rights underlying the surface of D District by way of deeds severing the coal estate ("Coal Severance Deeds") executed in the early 1900s. Texas Eastern filed its own Motion for Partial Summary Judgment seeking declaratory relief, claiming ownership of the support estate by deed, inverse condemnation (a de facto taking) and/or adverse possession.

After a hearing, the trial court entered an Order granting Emerald's Motion for Partial Summary Judgment, denying Texas Eastern's Motion for Partial Summary Judgment, and declaring the rights of the parties as to the mining of coal under the Pipelines. Thereafter, Texas Eastern filed the instant timely appeal, followed by a court-ordered Pa.R.A.P. 1925(b) Concise Statement of Matters Complained of on Appeal.

Texas Eastern now presents the following claims for our review:

Brief for Appellant at 5-6 (issues renumbered).

Initially, we observe our standard of review:

DeArmitt v. New York Life Ins. Co., 73 A.3d 578, 585-86 (Pa.Super.2013) (citations and quotation marks omitted).

Texas Eastern first claims that

Brief for Appellant at 29. Texas Eastern claims that the conveyance of coal in a deed does not necessary amount to a waiver of the right to subjacent support by the grantor. Id. at 30-31. Citing Penman v. Jones, 256 Pa. 416, 100 A. 1043 (1917), Texas Eastern asserts that the conveyance of "all the estate, right title, interest, benefit, property, claim and demand whatsoever," does not constitute a conveyance of the right to subjacent support. Brief for Appellant at 31. According to Texas Eastern, the deeds in Emerald's chain of title did not waive the right of subjacent support for the surface overlying D District. Id.

Pennsylvania recognizes three discrete estates in land: the surface estate, the mineral estate, and the right to subjacent (surface) support. Hetrick v. Apollo Gas Co., 415 Pa.Super. 189, 608 A.2d 1074, 1077 (1992). Because these estates are severable, different owners may hold title to separate and distinct estates in the same land. Id. "Where there is a separation of the minerals from the surface, the owner of the mineral estate owes a servitude of sufficient support to the superincumbent estate." Smith v. Glen Alden Coal Co., 347 Pa. 290, 32 A.2d 227, 235 (1943). However, this servitude of subjacent support is a separate estate in land, and is sometimes referred to as the "third" estate. Id. While "[i]t is well established under Pennsylvania law that it is the owner of the surface land who has the proprietary right to support of the surface[,] ... [i]t is equally well settled that this right may be waived either expressly or by implication."4 Consolidation Coal Co. v. White, 875 A.2d 318, 327 (Pa.Super.2005). Thus, we look to the deeds in the parties' chains of title to ascertain whether the right to support of the surface has been waived.

When construing a deed,

Id. at 326-27 (citations omitted).

Our review of the record discloses that in the early 1900s, the owners of the real estate overlying D District executed the Coal Severance Deeds. Each of the Coal Severance Deeds conveyed to the grantee "[a]ll the Pittsburgh or River vein of coal in and under that tract of land in Franklin Township, Greene County, Pennsylvania...." Deed (Pratt to Lackey), 1/29/1900 (emphasis added); accord Deed (Taylor to Patterson), 3/3/1900. The Coal Severance Deeds conveyed the coal estate,

Deed (Pratt to Lackey), 1/29/1900, at 2 (emphasis added); accord Deed (Taylor to Patterson), 3/3/1900, at 1-2 (emphasis added). The Coal Severance Deeds conveyed to Emerald the right to mine "all" coal underlying the surface, and expressly waived all liability for damages, including damages to the surface, caused by the removal of said coal. Through this language, the Coal Severance Deeds expressly waived the right of support of the surface estate.

This interpretation is further supported by subsequent deeds in Emerald's chain of title. For example, while conveying the rights secured through a Coal Severance Deed from the Administrators of the Estate of Ezra M. Sayers ("Sayers") to J.D.C. Miller ("Miller"), the subsequent deed conveyed to Miller

Deed (Sayers to Miller), 5/24/1920.

In summary, unlike the deed in Penman, the Coal Severance Deeds conveyed the right to "all" coal underlying the surface and expressly waived all liability for damages caused by the extraction of said coal. By their terms, the Coal Severance Deeds waived the right of support of the surface estate. Accordingly, we conclude that Texas Eastern's claim in this regard lacks merit.

Texas Eastern next claims "in light of eminent domain principles," it owns and controls the support estate underlying Line 2. Brief for Appellant at 12. Texas Eastern argues that its predecessor-in-title, Defense Plant Corporation ("DPC"), was "an entity created to aid the government of the United States in its National Defense Program." Id. at 10. Texas Eastern asserts that when DPC acquired the surface rights, it acquired the right to subjacent support through a de facto taking. Id. 12-13. Specifically, Texas Eastern argues that when an entity clothed with the power of eminent domain, i.e., DPC, acquired the right-of-way, any preexisting contractual waiver to the right of support was transferred to the United States, in order to protect the public interest. Id. at 14. Because Texas Eastern is the United States' successor in interest, it argues, it is legally entitled to continue use of the support estate. Id.

In support, Texas Eastern directs our attention to case law holding that the right of eminent domain cannot be abridged or defeated by contracts between private owners, and that an entry by the state upon the surface constitutes an entry upon the subjacent strata so far as necessary to support the surface for, inter alia, pipelines. Id. at 14-15 (citing Penn Gas Coal Co. v. Versailles Fuel Gas Co., 131 Pa. 522, 19 A. 933, 933 (1890)). Texas Eastern argues that the trial court erred in concluding that the holding in Penn Gas Coal is limited to those cases where entry is made under the right of eminent domain. Brief for Appellant at 16. Additionally, Texas Eastern, relying upon Griggs v. Allegheny County, 369 U.S. 84, 82 S.Ct. 531, 7 L.Ed.2d 585 (1962), argues that the government need not formally condemn property to acquire the support estate. Thus, Texas Eastern claims, the United States effectuated a de facto taking of the support estate. Brief for Appellant at 17.

"A de facto taking under either the 1964 or current Eminent Domain Code occurs when an entity with eminent domain powers substantially deprives property owners of the use and enjoyment of their property." Williams v. Borough of Blakely, 25 A.3d 458, 464-65 (Pa.Cmwlth. 2011). There are three elements required to establish a de facto taking. In re Condemnation by Dep't of Transp. of Right-of-Way for State Route 0079, Section 290, a Limited Access Highway in Township of Cranberry, 805 A.2d 59, 68 (Pa.Cmwlth. 2002) ("Cranberry"). "First, the condemnor must have the power to condemn the property." Id. Second, the proponent must establish that there are "exceptional circumstances" that substantially deprived the property owner of the beneficial use and enjoyment of the property. Id.; see also Conroy-Prugh Glass Co. v. Dep't of Transp., 456 Pa. 384, 321 A.2d 598, 599 (1974). Third, the proponent must demonstrate that the deprivation is "the immediate, necessary and unavoidable consequence of the exercise of the power to condemn." Cranberry, 805 A.2d at 68.

Here, Texas Eastern failed to demonstrate that DPC's purchase of the surface overlying Emerald's mine, where the right of support had been severed, effectuated a de facto taking of the support estate. The evidence does not disclose "exceptional circumstances" that substantially deprived Emerald of the beneficial use and enjoyment of its property. There is no evidence that Emerald was precluded from mining under the property of DPC upon its acquisition of the surface estate. Further, there is no evidence that any deprivation was the "immediate, necessary and unavoidable consequence of" DPC's purported right to condemn. See Cranberry, 805 A.2d at 68.

Texas Eastern's reliance upon Penn Gas Coal is unavailing. In Penn Gas Coal, the Pennsylvania Supreme Court explained that,

Penn Gas Coal, 19 A. at 933 (emphasis added). Under Penn Gas Coal, to acquire both the surface and support estate, the Commonwealth must acquire the property "by virtue of the title paramount residing in the sovereign[,]" i.e., through the exercise of the power of eminent domain. Id.

It is particularly notable that DPC did not exercise its "paramount title resting in the sovereign," if any, to acquire or compensate for the coal necessary to provide surface support. To acquire the coal necessary to support the surface, DPC was required to convene a State Mining Commission.

Pursuant to 52 P.S. § 1501, the State Mining Commission is vested with exclusive jurisdiction to determine, inter alia, "the amount of coal to be left in place for support purposes and to assess the damages suffered by the owner of the coal[.]" Moffat Appeal, 400 Pa. 123, 161 A.2d 352, 354-55 (1960). If DPC, acting on behalf of the United States, had sought to acquire the support estate, it could have convened a State Mining Commission within six years of its acquisition of the surface estate. See H.C. Frick Coke Company Appeal, 352 Pa. 269, 42 A.2d 532 (1945) (prior to the enactment of the Judicial Code, providing that an application to convene a State Mining Commission had to be filed within six years of the declaration of taking); see also 42 Pa.C.S.A. § 5527 (providing that "[t]he following actions and proceedings must be commenced within six years ... (6) Any civil action or proceeding which is neither subject to another limitation specified by this subchapter nor excluded from the application of the period of limitation by section 5531 (relating to no limitation)."). Here, DPC did not convene a State Mining Commission to acquire the support necessary for the Pipeline. Thus, our review reflects no evidence that DPC had acquired the support estate. Further, the lack of a State Mining Commission proceedings supports Emerald's interpretation of the Coal Severance Deeds as waiving the right of support of the surface.

Similarly, the United States Supreme Court's decision in Griggs, relied upon by Texas Eastern, provides no support. In Griggs, the Supreme Court recognized that "the use of land presupposes the use of some of the airspace above it.... An invasion of the superadjacent airspace will often affect the use of the surface of the land itself." Griggs, 369 U.S. at 89, 82 S.Ct. 531 (citation and internal quotation marks omitted). The "invasion," or "exceptional circumstances" that substantially deprived the property owner of the beneficial use and enjoyment of his property, was described by the Supreme Court as follows:

Id. at 87, 82 S.Ct. 531.

Unlike in Griggs, in the instant case, there is no evidence of an interference with Emerald's beneficial use and enjoyment of its mining rights by DPC, upon the construction or use of the Pipelines. There is no evidence that, by constructing the Pipelines, Emerald was immediately and unavoidably precluded from using all other mining methods to remove its coal. Simply put, there simply is no evidence that DPC or its successor, Texas Eastern, effectuated a de facto taking of the support estate.

Texas Eastern next argues that it acquired title to subjacent support of the Pipelines through adverse possession. Brief for Appellant at 19. Texas Eastern argues that, for over 50 years, and without interruption, "it has operated the Pipelines above the D District and physically supported them — from below — by continually occupying and using the support estate to protect its interstate Pipelines." Id. Texas Eastern asserts that Emerald has been on reasonable notice of this occupation. Id. According to Texas Eastern, the trial court erred in holding that the support estate cannot be acquired through adverse possession. Id. Texas Eastern disputes the trial court's rationale that Emerald did not lose the support estate simply because it refrained from making use of it. Id. at 20. Rather, Texas Eastern claimed that it acquired the right to subjacent support because it had been making active, hostile use of the support estate for over 50 years. Id. at 19.

"Adverse possession is an extraordinary doctrine which permits one to achieve ownership of another's property by operation of law. Accordingly, the grant of this extraordinary privilege should be based upon clear evidence." Flannery v. Stump, 786 A.2d 255, 258 (Pa.Super.2001). "One who claims title by adverse possession must prove actual, continuous, exclusive, visible, notorious, distinct and hostile possession of the land for twenty-one years." Johnson v. Tele-Media Co., 90 A.3d 736, 740-41 (Pa.Super.2014). "Each of these elements must exist; otherwise, the possession will not confer title." Id. Similarly, "[t]o establish a property right by prescription, the use upon which it is based must be adverse to the rights of the owner of the land." Flannery, 786 A.2d at 258.

Texas Eastern cites Cochran Coal Co. v. Municipal Management Co., 380 Pa. 397, 110 A.2d 345 (1955), to support its contention that it has continuously and adversely trespassed upon the support estate for over 50 years. However, the circumstances in Cochran Coal Co. are far different from those in the instant case.

In Cochran Coal Co., a coal company filed a cause of action in trespass to recover damages from a municipal water authority and management company ("the defendants"). Id. at 346. The coal company's complaint averred that the defendants had constructed a dam, filtration plant and pipelines "on lands in which the [coal company] has the right to use the surface[.]" Id. Further, the complaint averred that water had escaped, through fissures and underground crevices, into the mine, depriving the coal company of the use of the coal under the dam. Id. Even though the authority was vested with the power of eminent domain, the Pennsylvania Supreme Court held that the coal company could assert a cause of action in trespass, based upon the defendants' "deprivation of the [c]oal [c]ompany's use and enjoyment of its property[.]" Id. at 347.

Here, there is no such trespass by Texas Eastern, or open, hostile or adverse actions, of Emerald's coal comprising the subjacent support estate. There is nothing of record suggesting that Emerald would be held liable for damages caused by the mining of coal under Texas Eastern's Pipelines. Further, there was no action or activity, undertaken by Texas Eastern, that deprived Emerald of its coal interests underlying the surface of D District. As such, Texas Eastern's claim of title to the subjacent support estate, through adverse possession, fails.

For the above-stated reasons, we deny Emerald's Motion to Quash, and affirm the Order of the trial court.

Motion to Quash denied; Order affirmed.

DONOHUE, J., joins the opinion.

OTT, J., files a concurring statement in which DONOHUE, J., joins.

CONCURRING STATEMENT BY OTT, J.:

In the instant case, I agree with the majority that the trial court's order granting Emerald's motion for partial summary judgment, and denying Texas Eastern's motion for partial summary judgment, is immediately appealable as a final order pursuant to 42 Pa.C.S. § 7532.1 In this regard, I find persuasive Texas Eastern's argument in opposition to Emerald's motion to quash.2 Nonetheless, I am compelled to note that the cogent arguments of the parties highlight the tension between the Pennsylvania Supreme Court's decisions in Nationwide Insurance Company v. Wickett, 563 Pa. 595, 763 A.2d 813 (2000), and Pennsylvania Bankers Ass'n v. Pennsylvania Dept. of Banking, 597 Pa. 1, 948 A.2d 790 (2008).

As discussed by the majority, Emerald filed a five-count complaint against Texas Eastern, seeking declaratory relief, specifically, a declaration recognizing its superior property rights, and interference of those rights by Texas Eastern's inaction. In addition, Emerald's complaint sought injunctive relief, and asserted claims of violation of easement/real covenant, trespass and private nuisance. Texas Eastern filed an answer with new matter and counterclaims for declaratory and injunctive relief, breach of contract, trespass, negligence and unjust enrichment. Following the close of discovery, both parties filed motions for partial summary judgment seeking declaratory relief, and the court, after a hearing, issued the order underlying this appeal. The court's order stated, in part, "Emerald has the right to extract all of the coal in the D District, without leaving any coal to support [Texas Eastern's] pipelines," and "[Texas Eastern] has an obligation to plan for, implement and pay for appropriate and timely measures to mitigate potential subsidence damage to the pipeline so as not to interfere with Emerald's right to mine." Order, 8/9/2013, ¶¶ 1-2.

Texas Eastern maintains that the order at issue is appealable pursuant to Pennsylvania Rule of Appellate Procedure 341(b)(2),3 Section 7532 of the Declaratory Judgments Act, and Wickett, supra. In Wickett, the Pennsylvania Supreme Court held that, pursuant to Section 7532, "an order in a declaratory judgment action that either affirmatively or negatively declares the rights and duties of the parties constitutes a final order." Id., 763 A.2d at 818. Emerald, in support of its motion to quash, contends that the Pennsylvania Supreme Court has clarified its holding in Wickett, and found it inapplicable to cases such as this one.

Emerald relies on Pennsylvania Bankers, supra,4 wherein the Supreme Court held that Wickett did not apply to a Commonwealth Court order that "did not have the effect of declaring the parties' rights within the meaning of § 7532, but merely narrowed the scope of the [appellants'] broader declaratory judgment action." Pennsylvania Bankers, 948 A.2d at 798. Emerald asserts that the Supreme Court's holding "was `rooted in th[e] Court's well-documented efforts of avoiding piecemeal litigation[,]'" and that "the Supreme Court distinguished Wickett, noting that the trial court's order in Wickett `put certain defendants out of court by dismissing all of the plaintiff's claims against them,' and in so doing `prevented the plaintiffs from obtaining any relief against those parties.'" See Emerald's Brief at 8-9, citing Pennsylvania Bankers, 948 A.2d at 798-799.

Moreover, Emerald asserts that the Supreme Court further clarified Wickett in United States Orgs. for Bankruptcy Alternatives, Inc. v. Dept. of Banking, 611 Pa. 370, 26 A.3d 474 (2011),5 wherein it stated "an order in a declaratory judgment action, which merely dismisses one or several alternative theories for relief without ultimately deciding the case, is not appealable under Rule 341." Id. at 478, citing Pennsylvania Bankers, supra, 948 A.2d at 798. See Emerald's Brief at 4-5, 9. Emerald states that in Bankruptcy Alternatives, although the trial court's decision was in the form of a declaratory judgment, the Supreme Court held the order was not immediately appealable under the Declaratory Judgments Act. See Emerald's Brief at 9.

Texas Eastern counters that, in Pennsylvania Bankers, supra, the Supreme Court "determined that the rule of Wickett is inapplicable to an order that `merely narrow[s] the scope' of the declaratory judgment claims in an action." Texas Eastern's Reply Brief at 4 (emphasis in original), citing Pennsylvania Bankers, 948 A.2d at 798 (lower court's order "merely narrowed the scope of the Banks' broader declaratory judgment action, which raised several alternative theories of relief"). Texas Eastern similarly distinguishes Bankruptcy Alternatives, and argues against "Emerald's suggestion that... the [Supreme Court] used `alternative theories' to mean theories that are asserted in support of requests for types of relief other than a declaratory judgment[.]" Texas Eastern's Reply Brief at 5 (emphasis in original). Texas Eastern emphasizes that, in the present case, the trial court's order "fully resolved the parties' competing requests for a declaratory judgment concerning the subjacent support for the [p]ipelines," and "[n]o theory that either party pled in support of any declaratory judgment claim, nor any individual component of any declaratory judgment claim, remains pending before the [trial court]." Id. at 6.

Reviewing the arguments of the parties in light of the record, I agree with Texas Eastern that Wickett is controlling because the court's order in this case fully resolved the parties' competing declaratory judgment claims, and the claims that remain pending are non-declaratory judgment claims. As discussed by the majority, this case arose from the parties' stalemate over the Department's precondition for approval of Emerald's mining, namely, that Emerald reach an agreement with Texas Eastern regarding performance of mitigation measures for the pipelines. The overarching issue in this case — which party owns and controls the right to subjacent support — was raised in the requests for declaratory judgment relief set forth in Emerald's complaint and Texas Eastern's answer with new matter and counterclaims, and presented to the court in the cross motions for partial summary judgment. The court's order did not merely narrow the scope of the declaratory judgment claims, but rather settled the parties' dispute.

In this respect, the present case is distinguishable from Pennsylvania Bankers and Bankruptcy Alternatives, which followed Pennsylvania Bankers, explaining:

Bankruptcy Alternatives, supra, 26 A.3d at 480 (emphasis supplied).

Finally, I note that in Pennsylvania Bankers, the Supreme Court expressly declined to overrule Wickett "at this juncture." Pennsylvania Bankers, supra, 948 A.2d at 799 n. 15.

In sum, I conclude that Wickett applies here, and not the Supreme Court's decisions in Pennsylvania Bankers and Bankruptcy Alternatives. Therefore, I join the Majority's decision to deny Emerald's Motion to Quash and further join the Majority's decision to affirm the order of the trial court.