179 Pa. 470 | Pa. | 1897
Opinion by
On August 12, 1863, John McGowan, of Mifflin township, Allegheny county, died intestate, leaving a widow, this plaintiff, and thirteen children. At his death he was the owner of, and resided with his family on, a farm of about sixty-six acres, more than half of which was'underlaid with coal. After his death the widow continued to live on the farm down to the commencement of this suitthe ’other children conveyed'their interests to their three brothers, James, John and William, who by deed of August 3, 1868, with clause of general warranty, conveyed by metes and bounds all the coal under forty acres to John O’Neil, and his title became vested in these defendants by deed October 26, 1880. At the date of John McGowan’s death, there were two opened coal banks on the farm. In July, 1884, these defendants entered, put up valuable improvements, commenced mining and removing the coal and continued their operations down to the commencement of this suit. On October 20, 1893, the widow filed her bill against defendants, averring she was entitled to her statutory dower of one third of the rents and profits of the coal, and praying an account. Defendants by answer denied her- right of dower in the coal, and averred she had received'her dower find' support'from'the surface of the farm; further, that she knew of the conveyance by her sons and of defendants’ mining operations, yet prior to the suit, had made no demand for dower, nor had she offered to contribute any part of the expenses of mining; they further set up the plea of the statute of limitations. There were several pleas partaking of the nature of demurrers, such as want of jurisdiction, nonjoinder of children of John McGowan, and nonjoinder of
All of appellants’ assignments of error bear upon two points, viz., the master’s findings of fact as to quantity of coal mined, and his conclusion as to the basis of computation; both, it is argued, are not watranted by the evidence or the law. The master’s finding of quantity mined was as follows: Area mined, 35 acres; quantity per acre, 105,000 bushels; number of bushels lump coal mined 3,675,000; slack coal mined 40,000 bushels per acre; total slack, 1,400,000 bushels. The defendants having other banks on adjoining land from which they were mining coal, it was impossible for the master to ascertain the exact output from this land by inspection of shipping or sales books; but the cubic feet mined, shows with proximate accuracy the quantity, and that method was adopted. The plaintiff claimed she was a tenant in dower, and was deforced of her dower by defendants, therefore they must account as trespassers.
It is not worth while to discuss the precise nature of the widow’s interest in this farm of which her husband died seized, and of which there had been neither appraisement nor partition, and give to it a name capable of a strict-legal definition. The act of assembly of 1833 declares: “Where such intestate shall leave a widow and issue, the widow shall be entitled to one third part of the real estate for the term of her life.” While it remains in this situation, no matter what the estate may be called after appraisement or partition, it is a freehold estate in the land, and this she enjoys in common with the children of her husband, whose interest is the remaining two thirds. There is no hostility in the ,estates which gives the right of enjoyment to either to the exclusion of the other. The land descending from a common source, the intestate husband and father, the statute declares the quantum of the estate, and plainly intends
Here, both parties had an interest in the land; the defendants being one of the tenants in common, and as is said by Sharswood, J., in Coleman’s Appeal, 62 Pa. 252: “ A tenant in common exercises his undoubted right to take the common property, and he has no other means of obtaining his own just share than by taking at the same tim'e the shares of his com
The master in this case determined that plaintiff was entitled to one third the value of the coal in place, and in this conclusion we concur. He further found that value was 40 cents per hundred bushels. The evidence before him justified the finding. He adopted as the quantity mined, the number of bushels of lump coal, making no allowance for slack coal. He bases this finding on the evidence that what is universally understood in that coal region or neighborhood by bank leave or coal leave, is lump coal only, the slack being worth but little, is never accounted for by the operator, nor payment exacted for it by the owner; that it is considered a by-product, and goes with the lump coal sold. While we do not adopt this conclusion as a rule' applicable to all cases of account between cotenants of coal mines, we think no injustice was done by invoking it in this case. For years, plaintiff asked no account, nor made demand for her share; it is a fair presumption she did not intend to exact more than was paid by other owners of coal in that region; if she intended to make an unusual demand, she should have asserted it sooner.
As to defendants’ plea of the statute of limitations, it cannot prevail. True, the three sons conveyed to O’Neil the predecessors of defendants in title the coal without reservation of their mother’s estate, in 1868, and the deed was put of record; but that was no assertion of a right hostile to her of which she was bound to take notice. As long as her possession was undisturbed, the paper title, even of record, did not impair her right, while the'same possession, being in the direct line of their title, was notice to defendants, that as to her third, her claim was unequivocal and unabated. It was not until July, 1884, that defendants entered upon the land and commenced mining the coal. Being in the undisturbed possession, no right of action could accrue until her cotenants’ liability to account for her share of the coal began; by reason of their relation in estate to her they had a right to mine and receive the money for all the'