Duncan v. H. & G. Iron Works

136 Pa. 478 | Pennsylvania Court of Common Pleas, Blair County | 1890

Opinion,

Mr. Justice Sterrett :

The bill sets forth, inter alia, that Dr. Peter Shoenberger died in 1854, having by his last will and testament devised certain lands called Bloomfield, and other lands adjacent thereto, to his daughter Martha Duncan for the term of her natural life, and, upon her decease, to her surviving children as tenants in common, reserving and excepting “ the right and privilege hereinbefore and hereinafter devised to the owners of Rebecca Furnace, Sarah Furnace, and Gap Furnace, for to mine and take away iron ore from any of the afore-mentioned or described lands enough to supply one furnace at Rebecca, one furnace at Sarah, and one furnace at Gap works; but the said right and privilege is not to be so exercised as to interfere with the operations of said Bloomfield Furnace and Maria Forges.”

That, while the right and privilege aforesaid is devised to the owners of Rebecca Furnace and Sarah Furnace, no such right is devised in any part of said will to the owners of Gap Furnace. That by the first and fifth codicils to his will the testator devised Gap Forge and Furnace to trustees for Edwin F. Shoenberger, whose title the defendants claim that they acquired by certain conveyances unknown to the plaintiffs. That the defendants are constantly, continuously, and daily trespassing on complainants’ lands, pretending that they have a right to do so under the above-recited provision in the devise of Bloomfield to these complainants, and that they further claim a right to take away iron ore sufficient to supply not only the Gap Furnace, which existed at the time of testator’s devise, but an entirely new furnace which they have erected, requiring five times as much iron ore as the former one. That the claims of the defendants are without foundation; for, if any such right or privilege was devised in any way, it was devised to testator’s daughter, Sarah McCormick, and not to Edwin F. Shoenberger, the defendants’ predecessor in title; and that, even if otherwise, the said right was personal in said Edwin F. Shoenberger, and, if any right existed, the amounts of ore taken were wholly inordinate and excessive. The prayers of the bill' are, 1. for discovery of defendants’ title ; 2. for an injunction ; and 3. for an account corresponding with the rights of the defendants, if any they have, as the same may be determined by the court. The amended bill avers that if the defendants have any rights at all in the premises, they must, under the express terms of the devise, be exercised in such manner as not to interfere with complainants ’ works and the operation of their mines, etc.

In their answers, the defendants aver that by divers conveyances the right and title to Gap Forge and Furnace became vested in them; that, by his last will and testament, Dr. Shoenberger devised to the owners of Gap Furnace, and as appurtenant thereto, the right to take iron ore from Bloomfield mines sufficient to supply one furnace at Gap; that the right to take ore, as aforesaid, from Bloomfield mines, as an appurtenant of Gap Furnace, has always been recognized, and was never questioned until the same was denied by the plaintiffs in their bill. The defendants also deny that they are restricted in the- quantity of ore to be taken from Bloomfield, to the size and capacity of the original structure of Gap Furnace.

It appears from the record that the claim of the defendants to mine and take ore from the Bloomfield lands is grounded on their alleged legal right to do so. That right is not only expressly denied by the plaintiffs, but they also deny that the defendants have any title to the Gap Furnace and Forge, and call upon them to set out in their answer an abstract of their title. The legal right of the defendants to do the acts complained of, was thus the controlling question in the case. In view of that, the learned master rightly held that the plaintiffs had mistaken their remedy, and in a clear and exhaustive opinion, fully sustained by reason as well as authority, he recommended' that the bill be dismissed. Exceptions to his report were overruled by the court, and the bill was dismissed.

The familiar principle recognized in the cases cited by the learned master and court below is, that, where the case hinges upon a disputed legal title, that title must be first settled in an action at law. As was said in North Penna. Coal Co. v. Snowden, 42 Pa. 488: “The right of the plaintiff must be acknowledged, or established at law, before he can resort to a chancellor.” In Grubb’s App., 90 Pa. 229, the right of a party to take ore from the land of another was disputed, and depended on the construction of a deed, etc. The bill for an account was dismissed, on the ground that the question was a legal one, properly belonging to a court of law. Again, in Ferguson’s App., 117 Pa. 426, the principle is thus stated by the present Chief Justice: “Where rights which are legal are asserted on one side and denied on the other, the remedies are at law. They cannot be settled under equity forms.”

It is not our purpose to elaborate the principle on which the court acted in adopting the recommendation of the master and dismissing the bill. - That has. been sufficiently done in the report of the learned master, and in the opinion of the court below.

Decree affirmed, and appeal dismissed, at the costs of appellants.