151 Pa. 549 | Pa. | 1892
Opinion by
The principal question in this cause is one of- jurisdiction. The plaintiff averred that he was the owner in fee of a tract of land situate in Madison township, Clarion county, and had for certain considerations sold all the coal and minerals therein to one B. Heidrich or to B. Heidrich & Company, together with the right to enter upon the said lands to mine and remove the coal therefrom. He further charged that after a large amount of coal had been removed under and in pursuance of the said grant, mining operations had ceased, and that thereafter the defendants, claiming under B. Heidrich & Company, had entered and made a drift through and under his land into the coal in adjoining lands and laid down a tramway therein, and were, without his consent, carrying coal from the adjoining lands through and over his land; depositing thereon dirt and débris from mines in adjoining lands, and draining water from the said mines upon his laud. These acts were charged to be continuous and harassing, and to cause the plaintiff irreparable injury; and the prayers of the bill were for an injunction, and for an account of the damage sustained.
Upon the face of the bill the court had jurisdiction and the plaintiff was clearly entitled to the relief which he demanded.
It is, however, contended that the plaintiff’s right was denied by the answer, and that this denial ousted the jurisdiction. The plaintiff’s title. being purely legal, a denial of it would undoubtedly have the effect claimed, but an examination of the answer will show that it cannot be fairly said to put in issue any of the material averments of the bill. Con
The court having jurisdiction of the subject of the controversy there is but little difficulty in respect to the result which ought to have been reached. The agreement so far as it is in writing by which the defendants claim that their predecessors purchased the land is in respect to that matter nudum pactum. More than that, the blank in it indicates that it is incomplete ; that something had been omitted ■ either through inadvertence or because it had not been agreed upon. Manifestly, therefore, it is not self-sustaining, and without more no court would enforce specific performance of it. As against the purchasers, specific performance could not be decreed for the obvious reason that there is nothing upon the face of the paper from which it can be determined what the purchasers ought upon their part to perform : Soles v. Hickman, 20 Pa. 180. The defendants might, however, upon the authority of
The plaintiff’s right to an injunction being established, an account of the damages heretofore sustained follows as an incident, and to avoid a multiplicity of suits: McG-owin v. Remington, 12 Pa. 56; Souder’s Appeal, 57 Pa. 498; Allison’s Appeal, 77 Pa. 221. The master’s first report ought, therefore, to have been confirmed.
And now, Oct. 81, 1892, the decree of the court below is reversed and the plaintiff’s bill is reinstated, and it is ordered, adjudged and decreed that a perpetual injunction issue as prayed for in the plaintiff’s bill. And it is further ordered, adjudged and decreed, that the defendants pay to the plaintiff the sum of $179, being the damages found by the master in his first report, with interest thereon from the 14th day of April, 1890, together with the costs of suit, including the costs of this appeal, and that the record be remitted to the court below for the purpose of enforcing this decree.