275 Pa. 431 | Pa. | 1923
Opinion by
This is an action of trespass for mesne profits. The plaintiff, Emra L. Titus, in 1901, being the owner of a tract of land in Monongahela Township, Greene County, conveyed the Pittsburgh vein of coal in one hundred and fifty acres thereof to J. Y. Thompson et al., but retained the same vein of coal in the remaining fifteen acres of the tract. Thereafter the title to the one hundred and fifty acres of coal became vested in the Poland Coal Company, defendant, a Pennsylvania corporation, as did the title to the same vein of coal in some nine hundred and fifty
Appellant states the questions involved as follows, viz: “ (1) Question of the true measure of damage in trespass and for mesne profits, following a recovery in ejectment. (2) What constitutes a coal mine or colliery; and what are‘trade fixtures’connected therewith? (3) Questions of the propriety of sending out with the jury ‘calculations’ prepared by the parties, in cases of tort, and where the evidence is conflicting and uncertain.” Plaintiff’s
In the establishment and prosecution of its mining operation defendant used and destroyed a considerable quantity of plaintiff’s timber and five hundred tons of his coal, for which he was entitled to recover the fair value of the timber upon the stump and of the coal in place, and the jury were so instructed. On the affirmance of the ejectment suit, defendant vacated the premises, which it had occupied for over six years, and plaintiff was entitled to recover the fair rental value thereof during that time, as the jury were further instructed.
In the construction of its railway, etc., defendant had removed quantities of plaintiff’s soil and had caused some to be washed away by water from the mine; it also left upon his premises large quantities of refuse, called “gob piles,” etc., and the trial judge instructed the jury to allow plaintiff the expense of restoring the soil and removing the refuse, etc., not to exceed the value of the land. This follows Hershey v. H. S. Kerbaugh, 242 Pa. 227; Stevenson v. Coal Co., 201 Pa. 112; same case, 203 Pa. 316; Eshleman v. Martic Township, 152 Pa. 68; Lentz v. Carnegie, 145 Pa. 612; Welliver v. Penna. Canal Co.., 23 Pa. Superior Ct. 79; Herron v. Jones and Laughlin Co., Ltd., 23 Pa. Superior Ct. 226; Glasgow v. City of Altoona, 27 Pa. Superior Ct. 55, 60.
The statute under which defendant sought to take the land in question being unconstitutional, was void (6 B. C. L. p. 117) and it follows that defendant was a mere trespasser upon plaintiff’s land, and title to the buildings, fixtures, etc., it placed thereon vested at once in the owner of the land, as a gift, whether appellant so intended it or not: Huebschmann v. McHenry, 29 Wis. 655, 659. “The maxim quicquid plantatur solo, solo
At the same time defendant removed a large number of pit cars used on the tram railway and also the electric motors by which the cars were operated. The trial judge submitted to the jury the question as to whether they were so related to the mine and highly necessary to its operation as to be fixtures within the meaning of that term as he properly explained it, and, unless they so found,, plaintiff could not recover therefor. This was all appellant could rightly ask. The Pennsylvania rule is that a chattel placed in an industrial establishment for permanent use, and necessary to the operation of the plant, becomes a fixture and as such a part of the real estate, although not physically attached thereto; in other words, if the article, whether fast or loose, be indispensable in carrying on the specific business, it be
Where a chattel has become a fixture in a plant it does not lose its character as such by being taken elsewhere for a temporary purpose: 26 C. J. p. 691, section 67. For the benefit of trade a tenant may, during his possession of the demised premises, remove a fixture he has placed thereon (Overton v. Williston, 31 Pa. 155; Seeger v. Pettit, 77 Pa. 437), but defendant was not a tenant.
The rule that a structure placed upon land by a trespasser belongs to the owner of the land does not apply
Appellant’s contention that the value of the land should be fixed as of 1912 when the trespass began, is untenable. It was not until the trespass ended in 1919 that the cost of restoration could be ascertained and the question necessarily was whether it exceeded the value of the land at that time. Defendant being a trespasser was, of course, not entitled to compensation for the buildings it placed upon the land: Davidson v. Barclay, 63 Pa. 406.
What appellant did on plaintiff’s premises certainly constituted a coal mine (Westmoreland Coal Co.’s App., 85 Pa. 344), or a coal mining operation, and what we have said sufficiently covers the question of trade fixtures as connected therewith.
Each side prepared and sent out with the jury a written statement setting forth a claim as to the various items and amounts of damages, according to its version of the evidence. This was done without objection or exception; hence, appellant has no standing now to complain of the action of the trial court in permitting plaintiff’s statement to go out with the jury: Little Schuylkill Navigation Co. v. Richard’s Adm’r, 57 Pa. 142, 148; Kline v. Gundrum, 11 Pa. 242, 253; Welliver v. Penna. Canal Co., supra. The trial judge cautioned the jury, in effect, that these statements, while calling their attention to the various items and showing the contentions of the respective parties, were not proof and should only be considered when supported by a preponderance of the evidence as found after a careful examination (see Person & Riegel Co. v. Lipps, 219 Pa. 99) ; furthermore, there was no objection made or exception taken to this explanation, and only a general exception taken to the charge.
The case was well and carefully tried and the judgment is affirmed.