245 Pa. 402 | Pa. | 1914
Opinion bx
This is an appeal from the order of the court below, sitting in equity, certifying the case to the law side of the court under the Act of June 7, 1907, P. L. 440. The bill avers, inter alia, the plaintiff’s ownership in fee of certain lands in Columbia County, containing valuable deposits of coal; that the defendant, an adjoining owner of coal land, has, in disregard of the plaintiff’s right, threatened to enter upon plaintiff’s land and to mine and remove the coal; that the defendant is engaged in driving an underground passageway that is directed towards and is intended to penetrate the deposit of coal; and that the plaintiff will suffer irreparable injury if the defendant is not restrained from committing the threatened trespass. The bill prays that the defendant be restrained from entering or trespassing upon the plaintiff’s land.
The defendant filed an answer denying the material allegations of the bill and averring that the court is without jurisdiction to entertain the bill, because it is an ejectment bill; that the defendant owns in fee the coal which the plaintiff seeks-to restrain the defendant from mining and removing and is in possession of the same and has been continuously since 1890.
A preliminary injunction was granted which was subsequently dissolved by the court, and on motion of defendant’s counsel the case was certified to the law side of the court. This is the error complained of on this appeal.
The learned court was clearly right in certifying the
If, however, we turn to the answer we see far less reason for a court of equity adjudicating the question at issue and depriving the defendant of a trial by jury. It denies the jurisdiction of the court, avers possession of the premises in the defendant, and sets up other matters of defense which raise questions of fact for a jury. The controlling question here, as appears by the bill, is one of title to the disputed premises which, of course, should be settled on the law side of the court. It is claimed and strenuously urged by the plaintiff that the question of title' must be determined by the interpretation of the
The order certifying the case is affirmed.