200 A. 652 | Pa. | 1938
The facts in this case are the same as those in Miller v.Lutheran Conference and Camp Association,
As the land under the water into which the dock protruded was in the lawful possession of Katherine D. Miller under the 99-years' lease, to the ownership of which she had succeeded, the construction of the dock in the lake was, to that extent, a trespass on the part of Hugh McCauley Miller, and defendants were justified in demolishing such part of it. As to the part built on the dry land, the court held that its destruction was an act of trespass by defendants, but that damages therefor could be recovered in an action at law. Accordingly the court dismissed the bill.
The main question involved, as in the case of Miller v.Lutheran Conference and Camp Association, is in regard to the easements of boating, bathing and fishing. For the reasons there stated the executors of the estate of Rufus W. Miller could not validly license Hugh McCauley Miller to use these rights. There is one prayer in the present bill, however, which apparently was overlooked in the court below, namely, that seeking an accounting. As far as the record discloses, no accounts have been interchanged since the one adjudicated inMiller v. Miller,
The decree of the court below is reversed and the bill is reinstated for the purpose indicated; costs to abide the result of the accounting.