210 Pa. 145 | Pa. | 1904
Opinion by
This is an ejectment which plaintiff brings to recover possession of the coal underlying 164 acres and fifty-two perches of land in Green county. Both parties trace title to the same source, one Simon R. Huss to whom a larger tract of 275 acres including the land in dispute was conveyed by deeds from the heirs of John Leonard deceased in the year 1854. These deeds from the heirs of John Leonard to Huss put in Huss the ab
This, as the learned judge of the court below correctly held, was a complete severance of the coal from the surface. While at the date of this deed 1859, the power to separate land horizontally into two or more estates by deed was not generally recognized and acted upon by the profession, although the power had long been settled in England as well as the construction to be given the instruments of severance, yet just about the date of this deed October, 1858, this court held in Caldwell v. Fulton, 31 Pa. 475 : “ Coal and minerals in place are land. It is no longer to be doubted that they are subject to conveyance as such.” The tendency had been in many cases theretofore, to twist the right to the mineral into an incorporeal hereditament, a right issuing out of the land, instead of the land itself. In about a year afterwards, this case was followed by Caldwell v. Copeland, 37 Pa. 427, in which was said: “ Mines are land and subject to the same laws of possession and conveyance.” This has been the settled law consistently followed by us since. When then,
These are the general principles which should have governed the court and jury in the trial of the issue in the court below. Were they adhered to? Appellant has preferred twenty-four assignments of error, many of them, in substance, to the charge of the court. We shall content ourselves with only noticing those which in our opinion are decisive of the issue. Bearing in mind then, on the general legal principles governing the rights of owners to the under stratum of coal land, Huss, when he conveyed to Long on November 11, 1861, had the undoubted title to this estate and carefully reserved it, so that it was not affected by that deed; did he afterwards, in the interval between that date and March 2, 1900, when he conveyed to this plaintiff omit to do something he ought to have done or do something he ought not to have done by which his right to possession of his laud has been divested ?
In their seventh written point defendants requested the court to instruct the jury that: “ The occupation of real estate for twenty-one years, in an open, visible, notorious, exclusive, continuous and hostile manner creates an indefeasible title and against the holder of the legal title and against all other persons making claim thereto who are not under legal disabilities.” Answer : Affirmed. This in the abstract was not error, but it was followed immediately by affirmative instructions on defendants’ eighth point. The defendants called one John H. Hoge as a witness, a man past sixty-eight years of age and of exceedingly infirm memory,- who said he had known Simon R.
As to neglect to pay taxes by the owner, that has never been held to give title to a trespasser; if there be color of title in a
And this was the nature of the trespass: the vein was a small one near the surface not averaging over two feet in height; the mining in all the drifts was only a few feet from daylight; the coal was dug, shoveled on a wheelbarrow and loaded on a common wagon by the farmers and those in the neighborhood, who in the fall made full provision for the winter. There was no persistent continuence in the mining business at a single one of the several shallow banks; the owner of the surface exercised no exclusive ownership over the mining; not a single mine rail was laid, not a single mine oar put in any bank. To hold this adverse is a perversion of every definition of adverse possession such as is necessary to give title to a trespasser under the statute of limitations. The
But this evidence of abandonment and hostile possession was submitted to the jury under the seventh, eighth and ninth points along with the testimony claimed to show an estoppel by matter in pais. It is an established legal maxim that: “ He that does not speak when he ought to speak will not be heard when he ought to keep silent.” We have already spoken of Hoge’s testimony as to what took place when an agreement was made between Long, Simon R. Huss’ vendee, and Abijah Huss the vendee of Long. It was entirely too vague; the jury could not find from it as a fact, that Simon did not then speak of his reservation or that Abijah did not then know of it. But defendants rely further upon the testimony of William Rinehart of Simon R. Huss’s declaration to him, as showing an estoppel. These are Rinehart’s words: “We were down in the road and were talking a day or two before he went West,
The plaintiff has a clear and most undoubted legal title to her estate; for many years it has been spread upon a prrblic record to be read and seen by all who had any interest in knowing what it was. It would be a gross wrong to her to allow it to be destroyed by insufficient evidence. To preserve such a title the law does not require physical possession by the owner, that he should live in a coal mine. He has that constructive possession which the law declares his deed gives him and that under the facts of the case is enough. The judgment is reversed.