This is an action of trespass brought by executors to recover damages for coal taken from land devised by their testator. The facts are agreed upon in a case stated, and, as they there appear, the executors are not in possession of the land. It is averred in the case stated that John L. Riggs has been in possession of the tract of land since the death of Mahlon Riggs the testator, and that the defendants are in possession and mined coal prior to July 28,1892, to the value of $1,500, as of that date;
The case stated leaves us in doubt however as to the right in which John L. Riggs is, and has been, in possession. If as executor, he may maintain trespass. If in his own right and adversely to the executors, then the plaintiffs have no possession and have had none. The ease stated should have given us definite information upon this subject. As it does not, we cannot intelligently dispose of the case, but must quash the stated case for want of a distinct presentation of the facts necessary to a judgment.
The case stated is quashed and record remitted for further proceedings.