257 Pa. 432 | Pa. | 1917
Opinion by
This was an action of trespass brought by Edmund R. Griffin et al. against the Delaware & Hudson Company, to recover damages for the entry by defendant on land of which plaintiffs claimed ownership, and for mining coal and taking it from such land. It is averred in plaintiffs’ statement of claim that 100,000 tons of coal were unlawfully removed by defendant between the year 1867 and the date of suit. The pleas were, not guilty and the statute of limitations.
By agreement of the parties the case was referred to Hon. R. W. Aechbald, who, after a full hearing, filed a report, with findings of fact and law, in which he held that the plaintiffs never had actual or constructive possession of the coal in controversy, and were not, therefore, in a position to maintain this action, and that judgment should be entered for defendant. Exceptions were filed to the report, whereupon the case was opened, additional testimony was taken, and the findings reconsidered by the referee. He then filed a supplemental report, with new findings of fact and law, in which he .re
According to the referee’s findings, the material facts were substantially as follows: The coal in controversy underlay a tract of land in Providence Township, Lackawanna (formerly Luzerne) County, which is now part of the City of Scranton, and comprised three acres and fifty-six perches of ground. This land was included in a larger tract for which a patent was granted on June 15, 1828, by the Commonwealth to Thomas Griffin Prior to that date, on February 10, 1828, Isaac Griffin, a son of the subsequent patentee, had made and delivered to Silas B. Robinson a general warranty deed for a portion of the land patented by his father, and Robinson took possession under such deed. A year later, on February 6, 1829, Thomas Griffin made and delivered to Isaac Griffin a deed for the same land that Isaac had already conveyed to Robinson.
The deed of Isaac Griffin to Robinson was identical with that of Thomas Griffin to Isaac Griffin, with the exception of the length of the north line of the tract, and it is from that difference that the controversy in this case arises. The land conveyed by Isaac Griffin to Robinson began at the Lackawanna river, and extended thence northwest, for a distance of 246 perches, while in the deed from Thomas Griffin to Isaac Griffin, the tract was described as beginning at the same point, and extending by the same course, a distance of 264% perches, being 18% perches longer than the corresponding line in the deed from Isaac Griffin to Robinson. The difference appears clearly from the diagrams in the referee’s supplemental report. The courses and distances on the west and south were the same in both deeds, but in
• Plaintiffs are the heirs at law of Isaac Griffin, and claim to be the owners of the westernmost end of the tract, which they allege was not included in the deed of their ancestor to Silas B. Robinson. The portion which they claim, extends from a point distant 246 perches from the river,, to a point 264% perches distant therefrom, being 18% by 30 perches in area, containing, as stated, three acres and fifty-six perches. In the eighteenth finding of fact, the referee found that, “Silas B. Robinson, after the conveyance to him by Isaac Griffin and wife, entered into the actual possession of the fifty-two acres and fifty-eight perches with the allowance of three per cent., and he and those claiming under him in line of title have fenced and lived upon and occupied the said land, using it for farming purposes, cultivating the same, pasturing cattle thereon, cutting timber therefrom, .mining and removing coal, plotted it into building lots, sold building lots covering a portion of the land in dispute, and parties purchasing the said lots have built houses and other buildings thereon and are now in the actual, open, notorious possession of the same.”
In his first report the referee found as a fact: “The plaintiffs have never been in the actual possession of the land in dispute and have not severed the coal from the surface. The Robinsons and Griffins and VonStorchs have been in the actual possession of the whole tract of land running from the Lackawanna river back two' hundred and sixty-four and one-half rods to a point about thirty feet beyond the Keyser Valley Branch and to the corner of what is known as the Philip G. Griffin tract, and being so in possession leased the coal to the Delaware & Hudson Canal Company in 1867, and the possession of the Griffins and the Delaware & Hudson company has continued from that time to the present and has been open, notorious and visible.” In the supple
The defendant company, under a claim of ownership through leases given to them by the successors in title of Silas B. Robinson, has mined and removed the coal from the tract claimed by plaintiffs, and it was to recover damages for this alleged trespass that the present suit was brought.
Four grounds of defense were set up. (1) A valid paper title to the coal in question. (2) Title by adverse possession. (3) That plaintiffs were never in possession of the locus in quo, and, therefore, were not entitled to maintain an action of trespass quare clausum fregit for the removal of the coal. (4) That any right claimed by plaintiffs was barred by the statute of limitations. Upon the third question, the right of plaintiffs to maintain the action, the referee reversed himself. In his original report he said: “On the whole case therefore, whatever the state of the title, the plaintiffs as I view it are not in a position to maintain the action, never having had actual or constructive possession of the coal in controversy. This is decisive of the case and judgment must, therefore, be entered for the defendant.” But in his supplemental report the referee reached the conclusion that plaintiffs had constructive possession of the coal, whatever may have been the situation as to the surface, and that, therefore, they might maintain their action.
It is conceded that plaintiffs were never in actual physical possession of the tract of land here in question. The referee affirmed without qualification defendant’s seventh, thirty-first and thirty-seventh- requests for findings of fact which were to that effect, and no exception was taken to such affirmance.
It is admitted that the common law action of trespass quare clausum fregit could not be maintained by one not in possession of the land. But it is contended that this rule was changed by the Practice Act of May 25, 1887,
In Weisfield v. Beale, 231 Pa. 39, we said (p. 42) : “Under the Act of May 25, 1887, Sec. 3, P. L. 271, all actions ex delicto, whether trespass, trover, or trespass on the case, are now brought under the one name of trespass. The distinction, therefore, between trespass quare clausum fregit, in which actual or constructive possession in the plaintiff was necessary, and trespass on the case, in which it was not, is no longer of importance.” That related, however, only to the form of procedure. It was intended to point out that, under the statute, recovery might be had in an action of trespass, where formerly upon the facts the only remedy would have been in an action upon the case. But the fundamental requirements upon which the right to recover rests, have not been changed. The Act of 1887 “was intended to dispense with formality, but to insist upon matters of substance, indispensable to an intelligent and just judgment between the parties”: Winkleblake v. Van Dyke, 161 Pa. 5.
In the case at bar plaintiffs claim direct damages for an unlawful and forcible entry upon their premises and removal of the coal therefrom. In their statement they aver that they were in possession of the premises and that defendant did “with force and arms enter upon and into the said parcel of land beneath the surface thereof” from its own land adjoining and did mine a large quantity of coal therefrom and convert it to its own use. If plaintiffs can recover at all, it must be in an action in the nature of quare clausum fregit. The authorities are clear that, in order to maintain such an action, a plaintiff must have been in possession, either actual or constructive, at the time the trespass was committed : Greber v. Kleckner, 2 Pa. 289; King v. Baker, 25 Pa. 186; Collins v. Beatty, 148 Pa. 65; Wilkinson v. Connell, 158 Pa. 126; Busch v. Calhoun, 14 Pa. Superior Ct. 578; Vanderslice v. Donner, 26 Pa. Superior Ct. 319.
We think the referee very properly determined, in his first report, that, as plaintiffs had neither actual nor constructive possession of the coal in dispute, they were not in a position to maintain this action. As this is decisive of the case, it becomes unnecessary to consider other questions raised. ' It is, however, by no means clear that under a fair and reasonable construction of the deed from Isaac Griffin to Silas B. Robinson, the de
The judgment is reversed, and is here entered for defendant.