143 A. 474 | Pa. | 1928
Argued April 17, 1928. William T. Carter died in 1893, owner of the Coleraine mining property in Carbon County, and in the same year his executors, the late Wayne McVeagh and the Fidelity-Phila. Trust Co., the latter now sole surviving executor, sold the land, comprising 327 acres, with two coal mines thereon, together with the buildings and one large culm bank, known, in these proceedings, where it figures only incidentally, as No. 2 bank and occupying space on the land sold. No other property was included in the sale. In 1905, twelve years after the death of Carter and the sale of his holdings, the executors received information from Charles Carter, son of deceased, that the Carter Estate claimed title to another large culm bank, here designated as No. 1, located on land adjoining the Carter property, formerly owned by Coxe Brothers Co., also coal operators, but afterwards acquired by purchase by the Lehigh Valley Coal Company, appellant. Three years later, in 1908, the executors formally asserted, in written communications to appellant company, title to the No. 1 bank as executors under decedent's will, declaring that the bank had been formed by deposits of mine refuse from Carter's No. 1 mine, between the years 1862 and 1876. Appellant company refused to recognize the claim, asserted in its turn legal title to the culm, and in 1908 proceeded, by means of washery operations, to reclaim the small sized coal mixed with the culm, and, as admitted, realized a profit of $75,251.34 from the sale of the coal thus reclaimed. In the same year, 1908, an action of trespass was instituted against appellant by Carter's surviving executor, the Fidelity-Philadelphia Trust Company, to recover the sum of $462,312, which it claims was the market value of the coal and which, as it alleges, was wrongfully converted by appellant to its own use. By agreement the case was referred for determination *52 to a referee under the Act of May 14, 1874, P. L. 166. Because of the difficulty in obtaining testimony of witnesses who had personal knowledge of conditions in and about the Coleraine mines at the time and after Carter took possession in 1862, the hearings before the referee were prolonged to January, 1922. The case was later argued before the referee and on November 18, 1926, he filed his report, awarding damages to plaintiff in the sum of $144,920.49. Exceptions to the report were filed by defendant; these were overruled by the referee, and in a brief opinion the lower court confirmed the report and entered judgment for plaintiff in the sum of $154,968.30, which amount included interest on the sum awarded by the referee and $5,000 as his fee. From this judgment the coal company appealed.
On July 1, 1862, Carter and his then partner, Schoener, took possession of the collieries and breakers No. 1 and No. 2, under an assignment of a lease from Ralston and Johnson, the then operators. During their working of the mines, from 1862 to 1876, the culm therefrom, consisting of dirt, slate and small sized coal, then not usable and of no market value, was deposited upon two different locations, the culm from No. 2 breaker being dumped on a pile situated on the Carter land, while the culm from No. 1 breaker was deposited on a spot close to that breaker, but on land then owned by Coxe Brothers Company and later acquired by appellant. It is the latter culm bank, located on this adjoining land, we have in dispute here. The evidence as to the material question of the time of the origin of the culm heap is conflicting, plaintiff claiming it was started in 1861 by Ralston and Johnston, while appellant asserts that the first deposits were made at least previous to 1856. In 1876, No. 1 mine with its breaker was abandoned by Carter and thereafter no more culm was dumped on that particular pile. At the time the sale of Carter's property was made in 1893 no mention of the culm bank was made and there was no attempt to include *53 it in the conveyance, for the reason, as given in plaintiff's statement of claim, that the executors "remained in ignorance of said decedent's right and title to the aforesaid deposits of culm which, as averred, stood on adjacent ground not owned by decedent, and therefore not conveyed by plaintiffs."
The main answer of defendant is that Carter, neither at the time of his death nor at any time previous, had any right or title of ownership to the culm, for the reasons, among others, that when he deposited it on land not his own he intermingled it with culm previously placed on the same location by his predecessors during the time they operated the Coleraine Collieries; that he used this manner and place for getting rid of what was then regarded throughout the anthracite coal mining regions as a thing of no value, an annoyance troublesome to dispose of; that he knew he was depositing the culm on land to which he had no title; that he never exercised any act of dominion over it or asserted title to it; that through a long course of years vast quantities of culm were taken and carried away by persons when and how they desired without compensation to Carter; and that under these facts and circumstances Carter intended to relinquish and abandon any legal interest he may have had in the culm and that he did in fact abandon the culm and all claim of title to it.
The referee found, inter alia, that the immediate predecessors of Carter, Ralston and Johnson, were the originators of the culm bank in 1861; that they abandoned the culm when their lease of the Coleraine property was assigned to Carter and his associate in the following year; that Carter appropriated this abandoned culm upon taking charge of the mines; that there was insufficient evidence to warrant a definite finding that Carter knew he was depositing the culm on land not his own, and that he had not abandoned it or his claim of title to it. *54
We have with minute attention examined the evidence in the record before us, and while reluctant to disturb the conclusions of the referee, we are constrained to hold that certain of his findings are far from being supported by the facts established by the evidence and should not have been found proper for confirmation by the learned court below. The controversy involves mainly questions of fact and accordingly, as we said in Gordon v. Petty,
Appellant's first assignment of error is to the action of the court in overruling the exception to the referee's eighth finding of fact to the effect that "there is not sufficient evidence to warrant a definite finding on the question whether or not Carter in fact knew he was depositing the culm outside the boundary line of the Coleraine land." This, of course, involves the question as to *55
whether Carter was aware of the location of the boundary line which separated his land from the adjoining property on which stood the culm pile in dispute. Both the referee and counsel for plaintiff regard this phase of the case as immaterial. We are of directly opposite opinion. We quote with approval the words of appellant's counsel in their printed argument: "It seems to us that this is one of the most material facts bearing on the question of abandonment. If Carter did not know he was depositing culm on land which he did not own, this fact would certainly go a long way toward negativing any inference of abandonment. But, conversely, if he did know this fact, coupled with the fact that the culm was of no value, he simply followed this course as the most convenient way of getting rid of what was then generally regarded as a source of annoyance and expense." He was thus, as appellant contends, throwing away upon another man's land useless and valueless refuse from his mine and thereby relinquishing at once all title and interest in it. It seems then perfectly essential that we discover definitely, as far as the evidence reveals, whether or not Carter knew it was not his land upon which he was placing the culm. In fact, the importance of a specific finding, one way or the other, was so thoroughly recognized at the hearings before the referee that both parties asked for it. These requests of themselves carry weight as to the necessity of reaching a conclusion. We are referred by appellee's counsel to Phila. Co. v. United Gas Improvement Co., supra, as an instance in which we refused to set aside a referee's report where he failed to make a specific finding on one phase of the controversy. In that case, however, we agreed with the referee that the finding he declined to make was not a material question, nor had it been requested by counsel, and we said: "A sufficient answer to this is that he was not asked to make any such specific finding. If therefore his general findings are equivalent thereto, the plaintiff has not just cause for complaint." *56
That is not the situation in the case before us. Here we have requests from both sides for such finding, which requests were ignored, and our examination of the referee's report does not, in our opinion, reveal that his general findings are equivalent to a definite finding as to whether or not Carter was aware he was throwing his culm on land not his own. He has simply found that "there is not sufficient evidence to warrant a definite finding." We cannot accept that conclusion in the face of the record before us, and we therefore decide that the referee manifested error by not giving due weight to the proofs. In Worrall's App.,
It is essential, to clear up this phase of the case, to first find from the evidence at what period the culm bank in dispute actually originated; that is, when and by whom the first deposits of culm from No. 1 breaker were made on the ground occupied by the heap and owned by Coxe Brothers. In disposing of this point, — the time of the origin of the culm bank, — we shall reach a reversal of the referee's third finding to the effect that the originators of the bank were Ralston and Johnson, who operated *57
No. 1 mine and breaker immediately preceding Carter. Unquestionably they threw their culm on this spot, but there is direct evidence that not only were they placing it there in 1856, five years before the date set by the referee as the time of the origin of the culm bank, but that the pile was actually started previous to 1856 by deposits of culm on the same ground by operators who worked the mines before Ralston and Johnson took charge. A witness, Lawrence Boyce, born in 1847, who lived close to the Coleraine property, testified he had worked as a breaker boy for Ralston and Johnson in 1856 and that No. 1 breaker was standing at that time. Asked if he remembered who operated the mine previous to the latter firm, he said: "I have a recollection of two parties. They were Clevery and Currington." Another witness, Stephen Farrow, a justice of the peace at the time he testified, who was born in 1847 and lived a great part of his life in the vicinity of the mines, when asked if he knew who preceded Ralston and Johnson, said: "We boys said Cleaver McKnight. Q. They were there before Ralston and Johnson? A. Yes, sir?" Still another witness, John Martyn, nearly eighty years old, and a brother-in-law of Carter, and for whom he was mine superintendent in 1862, testified as follows: "Q. Did you ever hear of a man by the name of Cleaver in connection with the operation? A. Yes, sir. Q. What connection did he have? A. I don't know; he was there before I came. I know he was in Coleraine as an operator for a while." It was also testified by James Hughes, seventy-six years old, who worked for Ralston and Johnson in the breaker in 1857, that the culm was being deposited on the same site at that time. We find no warrant for discarding this testimony, as the referee has done and as he should not have done. The witnesses who gave it were certainly as worthy of credit as any of the others heard; and plaintiff presents no evidence which affects the reliability or weakens the force of their statements. It is thus evident, as shown by testimony *58
on both sides, that the culm heap had reached, in 1862, when Carter began to operate the mines, quite large proportions and these proportions had not been attained by deposits by Ralston and Johnson alone, but also by those of the operators who preceded them. Since, then, as we find, the culm heap was in existence at least six years before Carter began operations in 1862, did he know when he dumped the culm from his mine on the existing heap that he was not placing it on his own land? Such lack of knowledge as to a boundary line could of course be possible; but the evidence clearly proves it was not possible in the present case. The principle is applicable here that an owner is presumed to know the boundaries of his own land; and assuredly Carter had ample opportunity, — opportunity in fact thrust upon him, — to have this knowledge with respect to the Coleraine property. He was familiar with the region in which his mines were located, accustomed to examine and watch over all details pertaining to his mining interests and in his acquisition of the Coleraine colleries was guided by the legal advice of one of the eminent lawyers of that time. It is not then to be reasonably presumed that so careful and prudent a man as he was shown to be by the numerous witnesses who knew him personally, would be satisfied to pay no attention to such an important matter as the exact extent of the land he first leased and then, in 1864 with his associate, acquired by purchase for the price of $150,000. The conveyances in these transactions contained full information as to the boundary and they were at hand to examine. He must have examined them. "It is a clear elementary principle, that the law imputes to a purchaser a knowledge of every fact of which the exercise of ordinary diligence would have put him in possession": (Alexander v. Kerr, 2 Rawle 83, 89); and a recital in a deed is notice to the purchaser of the fact recited: Jennings v. Bloomfield,
The referee concluded in his findings of fact that Carter never abandoned the culm and also found as a conclusion of law that "the legal presumption of continued ownership by Carter of the culm in the banks was not, overcome by sufficient testimony to justify a finding that the title thereto was lost by abandonment." Against these conclusions appellant's second and third assignments are directed. Our examination of the evidence leads us to the conviction that here again the referee is in manifest error. It is not the contention of appellant, as we understand it, that Carter abandoned the culm at any intervening period between the time he first began *61 depositing the culm in 1862 and the date of his death in 1893. The contention is that the act of intentional and actual abandonment was coincident with the first dumping of the culm on the adjoining land and that the subsequent deposits were but a continuing process of that abandonment. We agree with the finding of the referee that the culm deposited by Ralston and Johnson, Carter's immediate predecessors, was abandoned by them when they ceased control of the mines in 1862; and certainly the record discloses nothing to break the presumption that the culm they found there when they started to work the mines had been similarly abandoned by their predecessors. The latter selected a convenient spot on the adjoining Coxe land, for which the owners appeared to have no use, it being, in the words of the referee, in a "wild and uncultivated state," and simply dumped their culm there to get rid of it; and, so far as the evidence enlightens us, never paid further attention to it or made claim of ownership; and this was precisely the attitude of Ralston and Johnson toward the culm bank when they relinquished control of the mines to Carter. In fact, so nonexistent in the minds of everybody was a claim of title that when the owners of the mines leased and then sold them to Carter and his associate the culm bank did not figure in the lease or any of the conveyances.
Did Carter appropriate the culm left by his predecessors? To appropriate, in the sense required here, is to exercise dominion over an object to the extent and for the purpose of making it subservient to one's proper use and pleasure; to take to oneself to the exclusion of others: 4 C. J. 1457. It is evident that Carter made no bargain or other arrangement with Coxe Brothers with respect to a continued use of the culm heap as a dumping ground, nor did he even go to the bother of directing his employees to place culm there. When he began operations they simply went ahead, without cessation of operations, and deposited the refuse from the breaker upon the old location, commingling it with what was *62 there at the time. Carter might have dumped the culm on his own land close to the breaker. There is no evidence to show that he placed it upon the neighboring property as a matter of necessity or that there was not sufficient space on his own land near the mine upon which to deposit it. In fact, it appeared so much as a matter of course to Carter and his employees that the existing pile was the most convenient spot on which to place the culm they were producing; all he did was to continue the practice of former operators of throwing the refuse upon what seems to have been considered a kind of common dump pile for such useless material. Neither Carter nor his superintendents gave directions as to where to put the culm. John Martyn, Carter's brother-in-law and his mine superintendent in 1862, gave direct evidence to that effect. He said: "There was no cessation of work by Ralston Johnson going out and Carter coming in, — these workings went every day when I came there; they continued to haul dirt the next day as the day before, there was no direction about it, — there was the truck and there was the dump car"; and he added that he himself never gave any directions, as to the disposal of the culm. It was therefore a matter of convenience. The original pile was close at hand; a trestle built by his predecessors enabled Carter to take the culm from his breaker to the bank, as had always been done before him, and he thus escaped the necessity of encumbering his own land with refuse of that character. For fourteen years this was the place and manner by which Carter got rid of culm. We think the most liberal interpretation of Carter's attitude toward the existing culm bank does not at all warrant the claim of appropriation. There was no act or declaration by him that he was appropriating the culm as his own, or that he assumed title to it or indication from him that he intended to preserve the culm for use or sale. "There was the truck and there was the dump car," and Carter's employees used both as a means of hauling away and dumping upon the *63 most convenient and accessible spot, which happened to be on contiguous land, great quantities of refuse for which there was no use or sale.
We said in Russell v. Stratton,
The course pursued by Carter with respect to the culm bank through the latter part of his life bears out the theory of abandonment to the utmost point. To his adult son, who survived him and was a beneficiary under his will, Carter at no time made a single intimation of a claim of title to the culm. After his father's death the son and a representative of the executors examined the Coleraine property, saw the culm on the Coxe land and wholly ignored it; and at the time the executors sold the Carter holdings there was no reference made to the culm bank and of course it was not included in the conveyance.
We come now to the declarations Carter is said to have made, which, as claimed by appellee's counsel, reveal a continuous and permanent intention not to abandon the culm. The referee concludes in his eleventh finding of fact, assigned as error by appellant, that these were declarations "indicating his claim of ownership of the banks and his belief in their value." The referee, evidently not greatly impressed with their weight as testimony, could go no further than to accept them as "indicating" Carter's attitude toward the culm bank. We cannot go that far, for we do not discover in them anything more than a mere expression of an indication to do something that was never done, or attempted to be done, and a vague prediction that in the indefinite future the culm might attain a value. The first of these declarations, said to have been uttered some five years after Carter began to operate the mines, was: "Some day these banks will be very valuable." Somewhere between 1876 and 1879, he is said to have remarked: "I intend to preserve them for my children's children." Yet it was in the year 1876 that he bought out his partner Schoener, thus becoming sole owner of the Coleraine property, and, in the deed conveying to him that interest, there is not the slightest reference to the culm and it certainly did not figure as a part of the property he then acquired. Another remark made about thirty-one years *67 after he took control of the collieries was an intimation that he was "going to place $100,000 in the concern and he was going to look after the banks so he could ship more," but, added the witness, "he did not particularly refer to the banks." Clearly these declarations denote nothing as to a claim of title, much less prove anything supporting such interest. It is true that, after thirty-one years the small sized coal mixed with the culm had attained a limited marketable value. But it may not be claimed that Carter, learning of this recent creation of value, after many years of actual abandonment of the culm, could regain legal possession and control over it by the utterance of vaguely expressed ideas as to the probable future value of it and indefinite suggestions as to what he might do with it in years to come. The culm or refuse of a mine is the property of the mine owner. This property he may abandon, either by carting it away or by suffering it to go where it will be undisturbed. When once abandoned, any one may appropriate it, provided it is not reclaimed before such appropriation: Barringer and Adams' Law of Mines and Mining, 608.
The case of Sturdevant v. Thomson,
We sustain appellant's first, second, third and seventh assignments of error, and hold that the culm in dispute here became vested in to appellant, owner of the land upon which it had been deposited. Consideration of the remaining assignments becomes unnecessary.
Judgment reversed. *69