author: Mb. Justice Dean,

text:
    Huss, Appellant v. Jacobs.

      Deed—Separation of surface from minerals—Reservation—Coal—Estate in fee simple—Adverse possession.

    Where a person conveys land, reserving to himself coal thereunder, the grantee takes an estate in fee simple in the surface, and the grantor reserves to himself an estate in fee simple in the coal. Notorious hostile possession kept up for twenty-one years against either will give title to an intruder, but no permissive intrusion nor mere unresented occasional trespasses will affect the stability of the title of either,

      Deed—Reservation of coal—Abandonment—Estoppel—Adverse possession.

      A person conveyed land reserving the coal thereunder. The deed was duly recorded. Some years afterwards the grantor left the state and never personally operated or mined the coal. No taxes were assessed separately against the coal, and whatever taxes were assessed were paid by the owners of the surface. The owners of the surface and other parties mined and took away wagonloads of coal, but this was done only at intervals, and there was never any continuous mining operations. There was some vague testimony by an aged witness that the owner of coal had witnessed an agreement of sale by his grantee without mentioning the fact of the existence of the reservation; but the agreement was not produced in evidence, and for all that appeared the reservation may have been noted in the agreement. Another witness testified that the owner of the coal had said before he left the state that all he had left in the county was a certain small lot and that this was claimed by another person. Held, that the evidence was insufficient to establish an estoppel, to show an abandonment, or to establish in anyone title by adverse possession against the owner of the coal.
    Argued Oct. 18, 1904.
    Appeal, No. 82, Oct. T., 1904, by-plaintiff, from judgment of C. P. Greene Co., Nov. T., 1901, No. 41, on verdict for defendant, in case of Mary Jane Huss, v. William R. Jacobs et al.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Thompson, JJ.
    Reversed.
    Ejectment for coal in Franklin and Jefferson counties. Before Craweord, P. J.
    The facts are stated in the opinion of the Supreme Court.
    The court charged in part as follows:
    [They say they have shown facts and circumstances which should convince the jury that Simon R. Huss, the original owner of this tract, has long since abandoned any claim or right of property in this particular coal in question, and that his acts and declarations detailed here by them, together with the other facts and circumstances in the case, showing the payment of taxes by subsequent parties who claim to hold the land in fee ; that all these facts taken together show he had abandoned any intention of claiming his right under this exception which appears in the deed from him to Richard Long. Or, in other words, he has acted and talked in such a way as to completely estop himself from setting up a claim to the coal, which ■was his by virtue of that exception in the deed from him to Long. And of course if such facts existed, the plaintiff, being his grantee under the deed of March 2, 1900, would have the same burden to bear. She would be estopped the same as Simon LI. Huss would be estopped if the facts go to show an estoppel.] [6]
    [It seems in 1875 Simon R. Huss, the original owner of this land, moved away from this county to Fairfield, Jefferson county, Iowa, and has been a resident of that place since that time. I believe he states in his testimony that he never has returned to his native county.
    He said that during his residence here he took coal from the coal banks or openings, where such openings occur on the premises, whenever he wanted to. The plaintiff cites that fact as showing some degree of active ownership on his part. Since he left in 1875 he has not undertaken to operate these mines, either through himself or any agent: he never has paid any taxes on the coal, and there never has been any assessment on the assessment rolls in the township where the coal is located assessing the coal to him. There is no dispute about that fact.] [7]
    You have heard the deposition of Mr. John II. Hoge read. It is offered on the part of the defendants to show that prior to the time the deed was made by Richard Long and wife to Abijah Huss, Simon R. Huss, the original owner and the one through whom this plaintiff claims the coal, had a conversation or meeting in which the matter of the transfer of the land from Richard Long to Abijah Huss was talked over.
    He was summoned from Waynesburg on November 11,1866, or a short time before that, when these parties entered into an article of agreement. The defendants argue from the testimony which they have read to you that Hoge stated that the matter was talked over at the time Richard Long made this article to Abijah Huss in the presence of Simon R. Huss. That he witnessed it as a witness, being present there and he states the matters were talked over and suggestions were made by all the parties and that no reservation of the character under which this plaintiff claims title here now was talked of there.
    The defendants say that from his acts and declarations there in connection with the other evidence in the case subsequently, his being away all this time and paying no taxes, having no agent to work the coal and making no claim of the parties who were working it, constitute what the law calls an estoppel.
    These facts are submitted to you to determine under all the evidence in the case whether there was an abandonment and whether his acts constitute an estoppel which would bar him or the parties claiming under him from coming in here to recover the coal from the parties who have possession of it and claim the possession of it by clear and indefeasible title.
    These are facts presented to you ; the plaintiff on her part argues that there are not sufficient facts in the testimony of Mr. Hoge going, to show that this matter was so understood at that time. You must decide the import of his acts and declarations with all the other facts in the case ; Mr. Huss’ conduct since that time, through all the years intervening from the time since the land passed out of his hands by the conveyance which he made. If he stood by at the time Long deeded the property to Abijah Huss knowing that Long undertook to convey to Abijah Huss the full and absolute possession of the land without any reservation or exception and without any mention of the rights of Simon R. Huss, which had been reserved to him by virtue of this deed from him to Long, it was his duty to speak then, he would be barred or estopped now, if those facts were talked over and he understood them in that way, because you will remember at that particular time his deed was not on record; in other words, there was no constructive notice at that time by which a purchaser or purchasers might know or could find facts to put him on notice. It was his duty to speak at that time if those matters were discussed and talked of at that time. If the testimony shows that was the intention to pass the complete title over to Huss and Huss had no notice-of the rights of Simon R. Huss, he should have spoken, and if his lips were sealed, Simon R. Huss and those claiming under him, would be estopped here.] [8]
    Plaintiff presented these points:
    1. Under all the evidence in this case the plaintiff is entitled to the land described in the writ. Answer: Refused. [9]
    8. The defendant surface owners could acquire no title or right of possession to the coal and coal rights described in the writ by actual possession of the surface for twenty-one years. and their mining of the coal made them from the beginning trespassers the same as though they were not owners and did not have possession of the surface, but total strangers to any part of the title to the land. Answer: The first part of that proposition is correct. That is, the mere possession of the surface of the land for twenty-one years without any acts of mining or without any taking of coal from under the surface would not give the party title, where there was a deed and the legal title for the coal remained in somebody else. That part of the point is correct. But we cannot affirm that point as it stands. We will have to refuse the other part of that point. [10]
    4. Continuous, adverse mining of the Waynesburg or outcropping vein of coal for the statutory period of twenty-one years would give defendants no title or right of possession to the so-called Pittsburg vein or stratum of coal, or to any other stratum or vein under the surface of the land described in the writ except said Waynesburg vein. Answer: I do not understand that you can distinguish in that way. That clause is clear as to all coal without any specification as to any one vein and we will have to refuse that point. If the plaintiff is entitled to the coal, she is entitled to all the coal. If she is not entitled to all the coal she is not entitled to any of the coal. [11]
    5. The only title and right of possession to coal underlying land described in writ claimed by William Rinehart, one of the defendants, is a verbal privilege granted to him by Simon R. Huss to mine the Waynesburg or outcropping vein, which privilege was abandoned by him in 1881, after which up until the present time he claimed under deed from Abijah Huss’ heirs for said vein; and the mining of coal by said Rinehart and his employees as testified to in this case, was not adverse to said Simon R. Huss or the plaintiff, and his mining from 1881 to 1887 under the deed from Abijah Huss’ heirs was not sufficient to give him any right of possession. Answer: It would be sufficient if the facts detailed by the defendants here are believed by you that there was an abandonment of the claim for the coal on the part of Simon R. Huss at the time Richard Long deeded this property to Abijah Huss. I don’t recall very distinctly all that was read from the deposition of William Rinehart, not being able to catch all the statements, perhaps ; but you will remember what his testimony was. But the point in the case is this, if Simon R. Huss had abandoned the coal or any claim to the coal, and had acquiesced in the conveyance of Long to Abijah Huss, it would not make much difference about this arrangement with William Rinehart. [12]
    6. The doctrine of abandonment has no bearing on this case as against plaintiff, as said plaintiff’s title to the coal land described in writ is perfect and complete of record. Answer : Refused. [18]
    7. That the recitals in the deed from Richard Long to Abijah Huss and in deed from said Long to Wm. P. Scott offered in evidence in this case are and were sufficient notice to grantees therein of the existence and entire contents of the deed of Simon R. Huss to Richard Long which contained an exception of the coal thereunder severing it from the surface ; and the subsequent recording of said deed of Simon R. Huss to Long was sufficient notice to all parties (including defendants) claiming under or through said Abijah Huss and Wm. P. Scott, if said Abijah Huss and Wm. P. Scott were in possession of said land described in said deeds from Long to them, at time said deed of Huss to Long (containing an exception of the coal) was recorded. Answer: That proposition might be correct under some circumstances, but I cannot affirm it just as it is stated there. The recital in the deed would not be very material matter if these other matters relied upon by the defendants are believed by you. If Simon R. Huss acquiesced in the conveyance or did things that estopped him there the recital in deeds subsequently would not be sufficient to put parties without knowledge of those facts on notice. But if you believe there was not sufficient testimony in that for an estoppel, that would be a point for you to consider, as to whether there was a sufficient notice in this deed by mere reference to it. What it would amount to in the way of positive evidence will be for you to say. [14]
    Defendant presented these points:
    1. Where an owner of land by positive act induces a party to purchase said land from a third person, and the transaction on the part of all concerned is in good faith, he is estopped and he cannot afterwards set up his title against the purchaser, or against those claiming under such purchaser. Answer: That proposition is affirmed. [15]

      8. If the jury believe from the evidence that Simon R. Huss was present when the article of agreement between Richard Long and Abijah Huss for the sale of 149 acres of the land sold by Simon R. Huss to said Richard Long was written by John H. Iloge and acquiesced in the said sale to Abijah Huss without coal reservation or exception, except a privilege to William Inghram or William Rinehart to take coal from the hanks for use on the other part of the Leonard land if said Inghram or Rinehart was entitled to any such privilege; that the deed dated April 20, 1866, from Richard Long to Abijah Huss for said 149 acres made pursuant to said article of agreement contained no coal reservation whatever but conveyed in fee simple the entire property, coal, minerals, etc., and further that the said Abijah Huss on April 21, 1866, had said deed recorded in the recorder’s office of Greene county, Pa., and at once entered into full possession of the premises conveyed claiming the entire property under said article and deed including the coal and coal banks, and that he and those claiming under him have since that date held and occupied the premises as farmers usually occupy their land and have mined the coal outcropping on said premises for family use and for sale from that time to the present in an open, visible, exclusive, continuous and hostile manner without objections from anyone until the bringing of this suit, paid the taxes during the entire period upon the entire premises, including the coal; then the said Simon R. Huss and Mary Jane Huss, the plaintiff, are estopped and cannot recover any of the coal, coal banks or privilege in and under the said 149 acres of land and the verdict of the jury should be for the defendants for the coal, coal banks and other minerals in and under said 149 acres of land. Answer: That proposition is correct. It comes back to the facts upon which they rely, and if you find in their favor, of course you will award them a verdict. [22]
    9. If the jury believe from the evidence that Simon R. IIuss in about the year 1875 and just before removing from Greene county to the state of Iowa, stated to William Rinehart that he (Simon R. Huss) owned none of the Leonard land nor anything else down there except the lot now owned by John Kelly and that lot was claimed by Solomon Gordon; that since said statement was made said Simon R. Huss has paid no taxes on the coal in and under any part of the Leonard land and has exercised no acts of ownership over said coal and coal banks, and has acquiesced in the possession of the defendants of all of the Leonard land including the coal and has acquiesced in the payment of the taxes by Richard Long and Abijali Huss and those claiming under them on the coal as well as the surface, and has suffered the said Richard Long and Abijah Huss and those claiming under them to mine coal for their own use and for sale in the market in an open, actual, visible, exclusive, continuous and hostile manner without objection until the bringing of this suit, the said Simon R. Huss and the plaintiff are estopped and cannot recover in this action any of the coal, coal banks or coal privileges in and under any of the land sold by said Simon R. Huss to Richard Long, and the verdict of the jury should be for the defendants. Answer: That pqint is correct and is affirmed. [23]
    Verdict and judgment for defendants. Plaintiff appealed.

      Errors assigned among others were (6-15, 22, 23) above instructions, quoting them.

      Simon R. Huss, with him George M. HosaeJc, James IngJiram and David R. Huss, Jr., for appellant.
    A declaration by an owner disclaiming ownership so long as he does not part with his title by writings and so long as the transaction is free from fraud, cannot affect title to real estate: Keating v. Orne, 77 Pa. 89.
    The court erred in instructing the jury that payment of taxes is evidence of title and possession in defendants: Hoffman v. Bell, 61 Pa. 444; Goodman v. Sanger, 85 Pa. 37; Kingsley v. Coal & Iron Co., 144 Pa. 613.
    The essential elements of an estoppel in pais have been completely disregarded in the consideration of. the testimony by the learned court below: Bright v. Allan, 203 Pa. 394 ; Miranville v. Silverthorn, 48 Pa. 147.
    Estoppel cannot be founded on inference or argument, but must be established by evidence of the clearest and most convincing character: Field’s Estate, 2 Rawle, 351; Fredenburg v. Lyon Lake Church, 37 Mich. 476; Thompson’s Appeal, 126 Pa. 367.

      Where there has been privity of title and possession there must be an ouster by unequivocal act: Long v. Mast, 11 Pa. 189; McCracken v. Roberts, 19 Pa. 390.
    The court seems to take the view throughout the case, clearly an erroneous one, that ownership and occupancy of the surface carries with it some right to mine the coal unless prevented by the legal owner thereof. The leading case of Armstrong v. Caldwell, 53 Pa. 284, defines the respective rights of surface owners and owners of the underlying coal. To the same effect are Plummer v. Coal & Iron Co., 160 Pa. 483 ; Finnegan v. Stineman, 5 Pa. Superior Ct. 124; Canal Co. v. Hughes, 183 Pa. 66, and cases there cited.
    A mere physical possession of one seam of coal does not of itself create a presumption of the possession of all the other seams of coal lying thereunder : Low Moor Co. v. Stanley Coal Co., 34 Law Times, 186.
    Abandonment applies only to an easement or license: Beech v. Kuder, 15 Pa. Superior Ct. 89.
    If a purchaser has notice of a deed in the line of his title he is charged with knowledge of all the facts it recites and is not protected from the consequences of not looking at it even by the most express representations on the part of the vendor that it contains nothing affecting the title. It was gross negligence uot to look at the deed: Patman v. Harland, L. R. 17 Chancery Div. 353; Knouff v. Thompson, 16 Pa. 357 ; American & English Ency. of Law (2d. Ed.), vol. 23, page 508; Ogden v. Porterfield, 34 Pa. 191; Boggs v. Varner, 6 Watts & Sergeant, 469; McKee v. Perchment, 69 Pa. 342; McCandless v. Blakely, 12 W. N. C. 510 ; Wertheimer v. Thomas, 168 Pa. 168 ; 4 Kent’s Commentaries, 179 ; Parke v. Neely, 9 W. N. C. 193; Mulliken v. Graham, 72 Pa. 484; Sugden on Vendors, vol. 2, page 775.

      A. F. Silveus, with him James F. Sayers, for appellees.
    Declarations against interest must be taken as true and to be construed most strongly against the declarant: Gabler’s App., 5 Cent. Repr. 314; Clarke v. Vankirk, 14 S. & R. 354.
    Simon R. Huss admits the coal was never assessed to him and that he never paid any taxes on it. It is admitted that coal in this section was assessed with the surface until about the year 1899, and from this it is evident that defendants and those under whom they claim have paid the taxes : Sailor v. Hertzogg, 10 Pa. 296.
    Assessment books and tax receipts cannot prove title, but they are some evidence of claim, and are more or less efficient as showing the extent of claim and possession: Irwin v. Patchen, 164 Pa. 51; Green v. Schrack, 16 Pa. Superior Ct. 26 ; McClure v. Jones, 121 Pa. 550 ; Vastbinder v. Wager, 6 Pa. 339.
    Silence will postpone a title when one knowing his own right should speak out. One lead by such silence ignorantly and innocently to rest on his title, believing it secure and to expend money and make improvement without timely warning will be protected by estoppel: Chapman v. Chapman, 59 Pa. 214; Putnam v. Tyler, 117 Pa. 570; Miller’s App., 84 Pa. 391; Thompson’s App., 126 Pa. 367; Logan v. Gardner, 136 Pa. 588; Com. v. Moltz, 10 Pa. 527 ; Vanleer’s App., 24 Pa. 224.
    Abandonment is a question of fact to be determined by the acts and intentions of the parties : Calhoon v. Neely, 201 Pa. 97 ; Raush v. Miller, 24 Pa. 277.
    Acts which tend to induce reliance and prevent examination of the records will create an estoppel as effectually as representations : Wynne v. Mason, 72 Miss. 424 (18 So. Repr. 422) ; e. g., if the owner actively encourages another to buy the property, he will be estopped from setting up his own title: Williamson v. Jones, 4 Am. & Eng. Dec. in Equity, 222, 324, and cases there cited : Rhawn v. Edge Hill Furnace Co., 201 Pa. 637; Chapman v. Chapman, 59 Pa. 214; Del. & Hudson Canal Co. v. Hughes, 183 Pa. 66 ; Sutton’s App., 112 Pa. 598 ; Wahl v. Pitts. & Western Ry. Co., 158 Pa. 257 ; Moreland v. Frick Coke Co., 170 Pa. 33; Gillespie v. Buffalo, etc., Ry. Co., 204 Pa. 107.
    December 31, 1904 :
   Opinion by

Mb. Justice Dean,

This is an ejectment which plaintiff brings to recover possession of the coal underlying 164 acres and fifty-two perches of land in Green county. Both parties trace title to the same source, one Simon R. Huss to whom a larger tract of 275 acres including the land in dispute was conveyed by deeds from the heirs of John Leonard deceased in the year 1854. These deeds from the heirs of John Leonard to Huss put in Huss the absolute estate in the land without reservation or restriction. Then Huss on August 5, 1859, conveyed by deed duly recorded to William Ingham an undivided interest in the whole tract which whole tract afterwards by a parol partition they divided between them, Huss retaining the 164 acres and fifty-two perches under which lies the coal now in dispute. From 1859, when Huss took title, he remained in possession of his part until November 11, 1861, when he conveyed it by deed joined by his wife to Richard Long, which deed was duly recorded December 5, 1866. It was well known to Huss while he owned the land and to others, that an upper vein of coal, called the Waynes burg vein, underlaid the land. While it was suspected that the Pittsburg vein was beneath this its existence had not at that time been proven by any actual tests. In the deed from Huss to Long is this reservation: “ And it is further covenanted and agreed that this deed does not convey any right title or interest to the party of the second part in coal or coal lands situated beneath the said property, but that the said parties of the first part shall still hold possession of said coal banks with the right of mining the same, and the right of way to said coal banks, the same as if this deed had never been executed, the first part has no privilege of selling coal at the banks.”

This, as the learned judge of the court below correctly held, was a complete severance of the coal from the surface. While at the date of this deed 1859, the power to separate land horizontally into two or more estates by deed was not generally recognized and acted upon by the profession, although the power had long been settled in England as well as the construction to be given the instruments of severance, yet just about the date of this deed October, 1858, this court held in Caldwell v. Fulton, 31 Pa. 475 : “ Coal and minerals in place are land. It is no longer to be doubted that they are subject to conveyance as such.” The tendency had been in many cases theretofore, to twist the right to the mineral into an incorporeal hereditament, a right issuing out of the land, instead of the land itself. In about a year afterwards, this case was followed by Caldwell v. Copeland, 37 Pa. 427, in which was said: “ Mines are land and subject to the same laws of possession and conveyance.” This has been the settled law consistently followed by us since. When then, Huss took his deed from Leonard’s heirs he took an absolute estate in fee simple in the land extending indefinitely downwards as well as upwards. When he made his deed to Long, by the reservation, he severed his estate horizontally, he did not convey the coal which he continued to hold under the Leonard deed, he did convey the surface to Long and that was his no longer; but the coal was his land thereafter just as much so as the surface was Long’s land. He could no more be divested of any right or title to this substratum of land than Long could be divested of his superstratum, the surface. Notorious hostile possession kept up for twenty-one years against either would give title to an intruder; but no permissive intrusion no mere unresented occasional trespasses would affect the stability of the title of either.

These are the general principles which should have governed the court and jury in the trial of the issue in the court below. Were they adhered to? Appellant has preferred twenty-four assignments of error, many of them, in substance, to the charge of the court. We shall content ourselves with only noticing those which in our opinion are decisive of the issue. Bearing in mind then, on the general legal principles governing the rights of owners to the under stratum of coal land, Huss, when he conveyed to Long on November 11, 1861, had the undoubted title to this estate and carefully reserved it, so that it was not affected by that deed; did he afterwards, in the interval between that date and March 2, 1900, when he conveyed to this plaintiff omit to do something he ought to have done or do something he ought not to have done by which his right to possession of his laud has been divested ?

In their seventh written point defendants requested the court to instruct the jury that: “ The occupation of real estate for twenty-one years, in an open, visible, notorious, exclusive, continuous and hostile manner creates an indefeasible title and against the holder of the legal title and against all other persons making claim thereto who are not under legal disabilities.” Answer : Affirmed. This in the abstract was not error, but it was followed immediately by affirmative instructions on defendants’ eighth point. The defendants called one John H. Hoge as a witness, a man past sixty-eight years of age and of exceedingly infirm memory,- who said he had known Simon R. Iiuss -when he lived, in Green county, but did not remember when he moved away; was acquainted with Richard Long in his lifetime; did not remember when he died; was acquainted with Abijah Huss, deceased, but did not remember when he died; whether before or after Long; he could not fix within four years the date that Long bought from Simon Huss, but knew Long sold to Abijah Huss about 149 acres of the same land. Then defendants offered to prove by the witness that he wrote an article of agreement between Long and Abijah Huss for the sale of this 149 acres; that Simon R. Huss was present and signed the agreement as a witness, yet made no objection that his reservation in the deed to Long was not kept up in Long’s agreement with Abijah Huss. The witness said he did not remember any reservation such as appeared in the deed was put in the article; in fact his memory was so impaired that he remembered only that. Simon R. Huss had signed the agreement as a witness and that the parties talked about it but what was said he did not remember. The agreement itself was not produced, whether lost or destroyed by them did not appear. This eighth point asked the court to say to the jury that if Simon R. Huss was present as a witness at the execution of this agreement without objection at the absence of the reservation in his deed to Long, it would estop him and the plaintiff who claimed under him from claiming title to the coal. This point was affirmed if the jury found the facts as set out in the point. There was no evidence which warranted the jury in finding that Simon R. Huss said anything whatever at the time the agreement was signed which would in the least prejudice his title ; for all that appeared his reservation in his deed may have been noted in the agreement. He said not a word to Abijah Huss to mislead him; the latter may have said to Simon then and there that he knew all about the reservation. Besides, Simon R. Huss’ deed was in Long’s, the vendor’s, possession containing full notice to his vendee of its existence and he, Abijah, would be presumed to know this when he purchased from Long, Simon’s grantee. The only testimony that is set up tending to show an estoppel, is the alleged misleading silence of Simon R. when he ought to have spoken. It is vague, so vague that it ought to have been rejected, or after it got in under objection ought to have been withdrawn by the court.

The subject of the ninth point arises out of this testimony: Simon R. Huss in 1875, just a day or two before he left Green county for Iowa, met on the public road William Rinehart, who testified that Huss said to him, All he had left in Green county was that lot and Sol. Gordon claimed it.” This was offered as also tending to show an estoppel and as showing an abandonment of the estate reserved in the deed to Long. This in connection with the fact that Huss had exercised no acts of ownership over the property during his absence in Iowa, paid no taxes on it, that the owners of the surface during the intervening years had taken out coal when they so desired, not only showed abandonment by Huss, but, according to the facts stated in the defendants’ eighth point, established for defendants a title under the statute of limitations. As to the plea of the statute, no inference of abandonment can be drawn in favor of defendants from the absence- of Huss in Iowa. He removed to Iowa in 1875, bought property and made his home there. It would be highly improbable, that he would at that distance give his personal attention to 164 acres of coal he owned in the state of Pennsylvania. Another landed estate, the surface, was on top of his, not any large part of the lower estate could be dug and hauled away by trespassers. His first act of ownership over it would probably be just what it was here, the sale of it. There was not in all these years, so far as we can find from the evidence, a distinct act by the surface owner hostile to his title under the reservation in his deed. Farmers and others at fitful intervals went upon the land, took away some wagon loads of coal; some of these testified that they had verbal privilege from Huss to do so. The coal banks were scattered, some six or seven over the tract; no one of them was continuously operated; occasionally a surface owner or one not a surface owner dug and sold small quantities, but the quantity in no instance was large. Adverse possession of a coal estate must be actual, as distinguished from constructive. We have carefully perused the testimony and it wholly fails to show an open, visible, notorious, exclusive and hostile occupation of the coal land for a period of twenty-one years.

As to neglect to pay taxes by the owner, that has never been held to give title to a trespasser; if there be color of title in a hostile claimant, that fact in connection with others will aid in establishing his claim. But there was no color of title in the surface owner; his very deed under which he claimed, negatived any title to the coal. Besides, the presumption is the taxes were paid. The law authorizes the assessment and taxation of the mineral separately from the surface; the taxes were assessed against the land alone as a whole and the owners of the two estates might have adjusted with each other their respective shares; but they did not. If they did not the county officers neglected their duty in not separating the assessment and collection of the taxes. Evidence against objection of plaintiff was admitted, that in 1886 the land was sold at sheriff’s sale on an execution against William Wallace a then owner of the surface; that neither Huss nor anyone for him appeared at the sale or gave notice to bidders that he was the owner of the reserved coal. Simon R. Huss the owner testified by deposition that he never had abandoned the coal laud reserved, that he took out coal from the land for a long time after he had sold the surface and nobody ever made any objection. A careful comparison of the testimony of defendants’ numerous witnesses with Huss’ own testimony really shows no contradiction. The substance of all the testimony of all defendants’ witnesses as to the fact of abandonment may be summed up in the answer of William Rinehart to the question as to whether the owners of the land operated the mines and sold the coal; the answer was: “ The whole country hauled coal away from there in the fall.”

And this was the nature of the trespass: the vein was a small one near the surface not averaging over two feet in height; the mining in all the drifts was only a few feet from daylight; the coal was dug, shoveled on a wheelbarrow and loaded on a common wagon by the farmers and those in the neighborhood, who in the fall made full provision for the winter. There was no persistent continuence in the mining business at a single one of the several shallow banks; the owner of the surface exercised no exclusive ownership over the mining; not a single mine rail was laid, not a single mine oar put in any bank. To hold this adverse is a perversion of every definition of adverse possession such as is necessary to give title to a trespasser under the statute of limitations. The best that can be said of it is, that at intervals during the year it was an open, visible trespass; and this was not exclusively confined only to the owner of the surface. It was not a continuous possession by even him for there was no possession of the coal during the summer months. There was, so far as appears, no really hostile possession by the owner of the surface under a defiant claim of right. Such adverse ownership as this would not have divested the real owner whose title was of-public record if the periodical trespass had run over a century. We are of opinion the learned trial judge erred in submitting this evidence to the jury and instructing them that if they believed it, it showed abandonment or that it sustained the plea of the statute. But under the verdict, which is a general one, it divests the plaintiff of all the coal under the surface on that tract. Adjacent explorations have made it probable that under this Waynesburg seam is the Pittsburg seam, a much more valuable one. By the reservation Huss claimed title to all the coal and coal banks beneath the property; explorations long within the statutory period have pretty certainly demonstrated the existence of the Pittsburg seam; Huss when he made his reservation did not probably know of this seam. There is no evidence that even the scrambling possession of defendants touched this coal; even if the instructions had been correct as to the Waynesburg seam, the evidence wholly fails to sustain the verdict as to' the Pittsburg seam.

But this evidence of abandonment and hostile possession was submitted to the jury under the seventh, eighth and ninth points along with the testimony claimed to show an estoppel by matter in pais. It is an established legal maxim that: “ He that does not speak when he ought to speak will not be heard when he ought to keep silent.” We have already spoken of Hoge’s testimony as to what took place when an agreement was made between Long, Simon R. Huss’ vendee, and Abijah Huss the vendee of Long. It was entirely too vague; the jury could not find from it as a fact, that Simon did not then speak of his reservation or that Abijah did not then know of it. But defendants rely further upon the testimony of William Rinehart of Simon R. Huss’s declaration to him, as showing an estoppel. These are Rinehart’s words: “We were down in the road and were talking a day or two before he went West, along by the five-acre lot, and he said that all he had left in Green county was that lot and Solomon Gordon claimed it.” Rinehart the witness, five years afterwards purchased from the fourth vendee from Huss about seventeen acres of the coal reserved. It is claimed that this declaration estops Huss or his vendee from claiming this coal. It is argued that then was IIuss’ time to speak, and as he did not do so he and his vendee must now keep silent. It will be noticed that this was a casual conversation on the road; Rinehart did not say to Huss he was about to buy part of the land he had sold to Long, in fact he did not purchase it until five years after-wards, long after Huss’ reservation was a public record. What duty on Huss was there to speak to Rinehart? Was he bound to tell him that he conveyed the 164 acres to Long but had reserved the coal ? At that time it was no concern of Rinehart’s. When it did concern him years afterwards there was IIuss’ deed of record which in unmistakable terms proclaimed he did own the coal. “ Silence works no estoppel unless it misleads another to his injury: ” Hill v. Epley, 81 Pa. 881. Besides, the words do not import a disclaimer of ownership of the coal; they were talking along by the five-acre lot, five acres of surface which Gordon claimed ; he may well have been referring to land which was visible, not coal under the surface. No estoppel is to be raised from inference or argument. To make these words an estoppel we must resort to a by no means obvious inference: Com. v. Moltz, 10 Pa. 527; Thompson’s Appeal, 126 Pa. 367. We are of the opinion that this testimony in no fair view creates or even tends to prove an estoppel.

The plaintiff has a clear and most undoubted legal title to her estate; for many years it has been spread upon a prrblic record to be read and seen by all who had any interest in knowing what it was. It would be a gross wrong to her to allow it to be destroyed by insufficient evidence. To preserve such a title the law does not require physical possession by the owner, that he should live in a coal mine. He has that constructive possession which the law declares his deed gives him and that under the facts of the case is enough. The judgment is reversed.


source: Caselaw Access Project

author: Me. Justice Dean,

license: Public Domain

text:
    Quigley v. Pennsylvania Railroad Company, Appellant.

      Appeals—Review—Excessive verdict—New trial.

    The Supreme Court will not consider an assignment alleging error of “excessive verdict” unless the verdict is so grossly excessive as to shock the court’s sense of justice.

      Negligence—Damages—Evidence—Statement of claim—Charge.

    Where in a negligence case the statement of claim sets forth with sufficient clearness and precision that plaintiff was injured, the damages he sustained, and that his injuries were caused by the negligence of defendant, and no request is made for a more specific statement, it is not reversible error for the court to permit the plaintiff to detail minutely the results of his injuries.
    In an action to recover damages for personal injuries it is not error for the court to permit the plaintiff to testify that since his injury he had refused remunerative employment in his business, where the purpose of the evidence is to show the kind of work plaintiff, as he alleged, was unable to perform after the injury, and so tending to show the nature of his injuries.
    In an accident case the testimony showed that after the injury the plaintiff continued to receive a salary from his employer, and that he continued to perform services connected with his employment, although not to the same extent as before the injury. There was no evidence whatever that these payments were made to him as a gratuity or gift on the part of his employer. The court substantially charged that if plaintiff did not perform any service for his employer after the accident, and that what he received was a mere gratuity, plaintiff would be entitled to recover for the lost earnings as though he had not received the gratuity or gift. Held, that the instruction worked an injustice to the defendant, and was reversible error.
    Argued Oct. 20, 1904.
    Appeal, No. 183, Oct. T., 1904, by-defendant, from judgment of O. P. Butler Co., Sept. T., 1904, No. 2, on verdict for plaintiff, in case of Edward J. Quigley v. Pennsylvania Railroad Company.
    Before Mitchell, C. J., Dean, Fell, Bbown, Mestrezat, Potter and Thompson, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Galbreath, P. J.
    At the trial it appeared that the negligence of the defendant was admitted. The case turned solely upon the question of damages.
    The portion of the statement of claim relating to the question of damages was as follows:

      By reason of and as a result of such collision and wreck, the plaintiff was thrown backwards with great force and violence against the interior frame or woodwork, the seats and the floor of the passenger car or coach in which he was being carried, thereby causing and inflicting upon his person, severe concussions, cuts and bruises, rendering him for a time unconscious, and causing him great and excruciating physical and mental pain and suffering and doing great and permanent damage to his person and nervous system, injuring him so severely internally and in and about his head and spine and spinal cord and the bones at the base of his spinal cord that he was unable to sit upright or even leave his bed for several months, and is now able to leave the same only with the use of body supports or braces, and even then is able to walk only with great pain and difficulty and only for short distances ; is unable to use his eyes in reading and writing, his eyesight and the nerves of his eyes being badly injured by the shock; cannot sleep quietly at night and suffers continually the severest physical and mental pain and anguish.
    6. That by reason of the injuries so sustained, the plaintiff has been rendered totally unfit for and incapable of performing the labors or duties of his said profession or business of an expert inspector of oil or any other business or occupation he may desire to follow, and has thereby suffered a damage of $90,000, and has been compelled also to pay large sums of money for medical attendance, medicine, nursing, traveling expenses, hotel fare, care and attention, to wit: $10,000.
    The court admitted under exception and objection evidence in detail relating to plaintiff’s physical condition after the accident. [1-4]
    Plaintiff was asked this question:
    Q. Since the accident have you been compelled to refuse any work? A. Yes, sir. Q. What, for instance? A. I have refused inspection of oil going to London.
    Object to what he might have gotten from some other person ; we object to it as incompetent.
    The Court: We will hear what work he has refused in order that the jury may understand something of the nature of the work and whether or not he was able to perform it, but as to what he could have received for the work I think we will not receive that. We will admit it on the proposition indicated for the present and hear you on the other later.
    Bill of exceptions sealed. [5]
    The court charged in part as follows :
    [Now, gentlemen, it is also said if there was a displacement of a single vertebra of the spine, it would be evidenced by the plaintiff’s inability to work. A number of physicians have given their experience that if there was a dislocation the plaintiff would not be able to walk, or at least very poorly; that it would impair his locomotion very materially. On the other hand, Dr. Brush testified that there came a case within his own observation where there had been a dislocation to some extent and the party did walk. Now, gentlemen, how is that ? If the one is theory and if theory is contradicted by facts, theories must always give way to facts. So that the question is one for the jury to determine as to the verity of opinions of physicians testifying on either side, and the determination of this question is wholly a matter for the jury.] [6]
    [Now, gentlemen, had Mr. Quigley recovered from that at the time of this accident ? It seems that at the time of the accident and sometime before it he had been performing his ordinary duties, and he says that morning when he left home he was a sound, well man or substantially so.] [7]
    [If, on the other hand, he did not perform any services from the time of the accident and it was given more as a gratuity, a gift on the part of the company, we say'that would not affect your consideration of the case, but he would be entitled to recover for lost earnings as though he had not received that gratuity or gift, because in a case of that kind a man’s friends may be as good as they see fit to be and may present him with such gifts as money or other valuables as they see fit, and yet not be charged in a case of this kind. It will be for you to determine whether he received it as salary for services rendered or as a mere gratuity or gift.] [8]
    Plaintiff presented these points:
    3. If the jury find that the plaintiff has rendered no services to his employer, the United States Pipe Line Company, since ■ the time of the accident, they are not to allow in mitigation • of damages any salary he may have received from his employer since the accident. Answer : We answer that by saying that it is affirmed, unless the jury find that the amount so paid to plaintiff was by way of compensation for services rendered by the plaintiff and not as a mere gratuity, as we have already explained in the general charge. [9]
    Verdict and judgment for plaintiff for $21,440. Defendant appealed.

      Errors assigned among others were (1-6) ruling on evidence, quoting the bill of exceptions ; (6-9) above instructions, quoting them; (14, 15) that the verdict was excessive.

      John M. Greer, with him John B. Greer and Thomas II. Greer, for appellant,
    cited: McHugh v. Schlosser, 159 Pa. 480; Com. ex rel. v. Butler, 99 Pa. 585; Kehler v. Schwenk, 144 Pa. 348; Chicago, etc., R. R. Co. v. McDowell, 28 Am. & Eng. R. R. Cases (N. S.), 85; Todd v. Traction Co., 192 Pa. 587 ; Smith v. Times Pub. Co., 178 Pa. 481.

      James W. Bee, with him Clarence Walker, Cornelius D. Scully and Eugene Mackey, for appellee,
    cited: McLaughlin v. City of Corry, 77 Pa. 109 ; Norristown v. Moyer, 67 Pa. 365; Alston v. Stewart, 2 Mona. 51.
    December 31, 1904:
   Opinion by

Me. Justice Dean,

The plaintiff, about thirty-four years of age, was an oil inspector for the United States Pipe Line Company and resided for a number of years at Oil City, Pennsylvania. While a passenger on defendant’s train on March 10, 1903, a collision occurred whereby he was seriously injured. Alleging his injuries were caused by the negligence of the company lie brought this suit for damages. There was no contradiction of his testimony, that he was injured in the collision, but there was a serious conflict as to the nature of his injuries, their extent, whether he had been incapacitated thereby, and the probable duration of the incapacity, whether permanent or only temporary. The court submitted the evidence bearing on the different questions raised to the jury, who found a verdict for plaintiff in the sum of $21,440. Judgment having been entered on this verdict the railroad company brings this appeal assigning fifteen errors.

The last two, the fourteenth and fifteenth, claiming, that under the authority of Smith v. Times Publishing Co., 178 Pa. 481 the verdict is erroneous because excessive, we pass with a very brief notice. There are but few appellants who have a verdict against them, that do not regard it as excessive; most of them think there should have been none at all. The alleged injustice is a mere matter of opinion on their part in which the jury having before them the whole evidence widely differed from them. The “ Times ” case, although the law in that and every other case with like facts, under the act of 1891 was not intended as an invitation to every dissatisfied suitor to bring his case here by alleging error of “ excessive verdict.” When the verdict, as in the case cited, is so grossly excessive as to shock our sense of justice, we will seriously consider and pass on the assignments of error, not otherwise. In the years that have passed since that case was decided, although the same error has been alleged in numerous cases that have come before us, in not one of them has it been sustained and from our observation it will rarely be sustained in the future. So as to these two assignments, we overrule them both; wo could not do otherwise, unless we arbitrarily said we do not believe the testimony of plaintiff’s reputable expert witnesses who had every opportunity to ascertain the truth as to matters about which they testified. It is argued with much earnestness, that this is a power we ought to exercise unflinchingly to prevent injustice being done by prejudiced juries. If by this is meant we ought to exercise the power in every case where our judgment differs from that of the jury and the court below, we say no; on the contrary, we ought to and will exercise it very sparingly as heretofore. Especially will we shrink from disturbing a verdict on this ground when the trial judge has by entering judgment approved it.

The assignments first to fourth inclusive, complain of the court permitting plaintiff to detail minutely the results of his injuries, the incontinence of urine, irregularity of bowels and such like, especially as such results were not particularly averred in the declaration. . The plaintiff’s declaration, it is true, is somewhat general, but it avers with sufficient clearness and precision the collision, that plaintiff was injured, the damages he sustained and that his injuries were caused by the negligence of defendant. On proper cause shown, we have no doubt the learned judge of the court below, before trial would have compelled him to more particularly specify such results; but it went to trial without such application and has no excuse for alleging surprise now after verdict. In fact from the testimony of its own expert witnesses we doubt if it was greatly surprised. Therefore these four assignments are overruled.

The fifth assignment is to the admission of plaintiff’s testimony, that since his injury he had refused remunerative employment in his business. The court admitted this because it would tend to show the kind of work plaintiff, as he alleged, was unable to perform after the injury, so tending to show the nature of his injuries; it was not admitted for the purpose of showing what he might have received for such work had he been able to perform it. Plaintiff’s counsel may have argued inferentially, from his answers, that his compensation would, have been large, but the court committed no error in its qualified admission of the evidence. This assignment is overruled.

Appellant’s sixth, seventh, tenth, eleventh, twelfth and thirteenth assignments are all in effect to the charge of the court. We have examined them carefully and must say in view of the evidence, that there is not the semblance of well-founded error in any of them. For example, it is argued by appellant in his sixth assignment that it is an accepted theory of the surgical world that a man whose spine is dislocated cannot walk. Dr. Brush testified that a case came before him of a man with a dislocated spine who did walk. In commenting on this the learned trial judge said: “ Now, gentleman, how is this ? If the one is theory and is contradicted by facts, theories must always give way to facts, so that the question is one for the jury.” We see no error in this; all sound theories must be based on or be deducible from facts; if it be an accepted theory that a man with a dislocated spine cannot walk, then if it be established that a single man with a dislocated spine does walk, the theory must be narrowed or modified to one which accords with the facts, that men with dislocated spines seldom walk, or if the facts of walking become too numerous, the theory falls.

In none of these assignments to the comments of the learned judge do we discover anything more serious than that we have noticed; all are overruled.

The eighth and ninth assignments raise a more serious question. As the ninth practically includes the eighth we shall discuss it alone. Plaintiff in his third point asked the court to instruct the jury as follows:

“ If the jury find that the plaintiff has rendered' no services to his employer, the United States Pipe Line Company, since the time of the accident, they are not to allow in mitigation of damages any salary he may have received from his employer since the accident.”

“ The court: We answer that by saying that it is affirmed, unless the jury find that the amount so paid to plaintiff was by way of compensation for services rendered by the plaintiff and not as a mere gratuity, as we have already explained in the general charge.”

The argument is, that there was no evidence to justify the qualification by which the court left it to the jury to find whether the money received by plaintiff from his employer, the pipe line company, was a gratuity. There is no doubt but that after the injury plaintiff received from the company his regular salary. The plaintiff testifies that he often went to the refineries at Oil City after his injury and performed services for the company for which it and another company paid him $2,800 per year, just the sum he received before. Plaintiff’s own testimony as to just how long after the injuries these payments continued is not clear but they continued for some time; it is clear, however, that during all the time he was receiving payment except for a few weeks when consulting surgeons he was performing services for his company, while not of the same extent perhaps as before the injury, they were of the same character. The treasurer of the company testifies that he paid plaintiff every month since the injury just as before ; that he had one vacatiozr lasting a month or two during that time. The coznpany eoxztinued to pay his regular salary after his injury, azid so far as his own testimoziy and that of the treasurer shows, the paymezit was for services, izzefficient perhaps coznpared to those before his injury, but still for services rezidered by him to the coznpany. In the general charge to which the court refers the jury it says : “ If on the other hand he did not perfoz’m any services from the time of the accident and it was given more as a gratuity, a gift ozi the paz't of the company, we say that that would not affect your consideration of the case, but he would be entitled to recover for the lost earnings as though he had not received that gratuity or gift.” Taking the general charge and answer to the point together, we think injustice was done defendant. True, the amount covered by the error is only a small part of the whole, still it was a substantial injustice. We can find no evidence in this voluminous paper-book which warranted the court in leaving it to the jury to find that this payment was a gratuity; on the contrary the evidence clearly shows the payment was practically for the same character of services he had rendered before the accident.

Counsel for appellee say they adopt as a clear exposition of the law tlie court’s answer to plaintiff’s third point. So do we, but the trouble is not with the law but with the evidence. The authorities cited by counsel abundantly sustain his argument; but from the evidence this was not a mere gratuity but wage or salary and as the very foundation of the suit is plaintiff’s loss of earning power in the years succeeding the accident, there is no reason why he should be compensated for loss of earning power in the past when according to liis own evidence that power was practically unabated for a year or two after the accident. The error was in permitting the jury to compensate him for earnings he had actually received. We think the court below, inadvertently perhaps, failed to make the distinction.

The eighth and ninth assignments are, therefore, sustained, the judgment is reversed and a v. f. de novo awarded.


author: Mr. Justice Dean,

text:
    Daley v. Wingert, Appellant.

      Ejectment—Evidence—Conflicting evidence—Division line—Question for jury—Estoppel.

    In an action of ejectment to recover a strip of land claimed by the plaintiffs and over which the defendant had constructed a building, if the evidence is conflicting as to the exact location of the divisional line between plaintiffs’ and defendant’s lots, the disputed question must be submitted to the jury. In such a case if the defendant testifies that the plaintiff expressly assented to the building of the house on the disputed strip, and such assent is expressly denied by plaintiff, the question of plaintiffs’ estoppel is for the jury.
    Argued Oct. 20, 1904.
    Appeal, No. 302, Jan. T., 1904, by defendant, from judgment of C. P. Clearfield Co., Feb. T., 1901, No. 207, on verdict for plaintiffs in case of James J. Daley and Hugh A. Daley v. George H. Wingert.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Thompson, J J.
    Affirmed.
    Ejectment for a strip of land in DuBois Borough. Before Gordon, P. J.
    The facts are stated in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff. Defendant appealed.

      Error assigned was in entering judgment for plaintiff on the point reserved.

      Thomas II. Murray, with him James P. ff Laughlin, Hazard Alex. Murray and A. L. dole, for appellant.

      Frank Fielding, with him William d. Arnold, for appellee.
    December 31, 1904:
   Opinion by

Mr. Justice Dean,

This was an ejectment for a lot of ground in borough of DuBois, Clearfield county. The lot originally formed part of a tract of eighteen acres which belonged to one Rumbarger who conveyed the whole tract to John DuBois wrho contracted to sell a part to George Gorton; no deed appears to have been made for this part to Gorton. On August 12, 1879, DuBois conveyed another part of the land by deed to Henry Fireman; that deed describes the land as bounded by Pentz’s run on the west and extending east forty-one feet along Long avenue to a post and thence north by a line parallel with Evans street sixty feet. Fireman went into possession and erected a livery stable on the lot and made some other iriiprovements. On March 22, 1881, Fireman by the same description as in his deed conveyed to R. and O. Emerick, and they on February 11, 1882, by the same description conveyed to George Wingert this defendant. After the date of Wingert’s conveyance James and Hugh Daley, the plaintiffs, purchased from Gorton the remaining part of the land. So far as appears, although Gorton had no deed his equitable right or-title was never disputed; but without an intervening deed from him, plaintiffs took directly from DuBois who by the record still held the legal title, a conveyance of the lot adjoining the one conveyed to Wingert. This deed is dated January 20, 1885. Some improvements were also put by them on this lot. In the spring of 1888 the town of DuBois and the buildings on these two lots were destroyed by fire. In the month of June, 1888, Wingert erected his new brick hotel huilding on his lot; it encroaches on and partly covers plaintiffs’ lot for twelve feet on Long avenue extending back to a point at a distance of thirty-eight feet from the avenue. Plaintiffs then brought tins ejectment.

They claimed defendant’s possession was limited to forty-one feet on Long avenue as fixed by his deed; the defendant claimed that when his predecessor in title, Emerick, was about to locate his building before the fire, in the year 1881, he asked Gorton the prior owner of both lots to point out the line between them and Gorton designated the line by posts at front and rear and that then Emerick placed his house within that line; that Wingert, this defendant, bought from Emerick in 1882; that the house was in the same place then and so stood until the fire; that then Wingert rebuilt after the fire about on the line of the old house but nevertheless still within the Emerick line. While there is considerable evidence on the part of defendant to show misleading conduct on part of plaintiffs and their predecessors in title, which to some extent was rebutted by plaintiffs, still the evidence, both on the question of the true location of the old division line, and on the question as to whether plaintiffs or their predecessors in title had done that which should estop them in equity from denying that defendant’s building was within the boundaries of his lot, was for the jury. The court left it to them in an entirely impartial charge and they found for plaintiffs. At the trial, however, defendant’s counsel had submitted a written point as follows:

“ A. As the testimony showing, that when the Emerick house was built in 1881, it was placed two feet westerly of a line then pointed out by Gorton, the predecessor in title to plaintiff. That that house stood until the fire of 1888, six years after defendant’s purchase, and three years after plaintiffs’ purchase, and was located with its easterly side farther 'east than the easterly side of defendant’s present brick building is not contradicted, the plaintiffs cannot recover, and the verdict must' be for the defendant.”

To this the court answered :

“ Now, September 16,1902, this case is submitted to the jury for verdict on the merits, subject to the opinion of the court on the legal questions raised by defendant’s point A which is" refused, as explained in charge, whether under the undisputed testimony on the points referred to the court should direct a verdict for defendant.as a matter of law.”

After further argument the court in opinion filed denied the point and entered judgment for plaintiffs on the verdict, and from that judgment defendant appeals alleging for error the refusal of the point.

It is argued earnestly by appellant’s counsel that the facts stated in the point were undisputed at the trial; the court thought differently and submitted to the juryto determine the truth of the dispute. We think such dispute fairly arose and that it was not one for the court to determine. It is conceded that the true division line was, very probably, that pointed out by Gorton to Fireman and which Gorton’s son assisted in measuring; but this was before the fire, and whether defendant placed his building on this line is not clear. True, two witnesses for defendant testify that it was, but taking the distance of the Emerick house from Pentz’s run, as testified to by plaintiffs’ witnesses, the inference is irresistible, that defendant’s witnesses were mistaken. The court could not take from the jury the consideration of a reasonable inference any more than it could take from them consideration of the credibility of a living witness. We think, therefore, no error was committed in leaving the testimony to the jury as to the true location of the division line.

As to the allegation, that plaintiffs are estopped from denying the location of the line as claimed by defendant, that also, from the contradictory character of the evidence, became a question for the jury; not what constituted an estoppel for that was for the court, but if the jury found the facts, as one side or the other alleged, then either plaintiffs were estopped or they were not. This excerpt from the charge of the court shows that the learned trial judge correctly stated the principle applicable to this evidence: “He (Emerick) testifies, that before erecting the building he talked with James J. Daley, one of the plaintiffs, about the line and asked him if it would be satisfactory to build four feet inside of the line of the Emerick house and he replied that it would. Well, now this is denied by Daley. He denies that this question was asked him and that the answer indicated was given by him. If you find from the evidence that it was, that Daley thus assented to that being a proper place for Wingert to build his house, and that relying upon that Wingert built it there, Daley would be estopped from denying that the house was built on Wingert’s land and that would be an end of the case.”

The court, in thus speaking, gave no precise definition of what in every case would constitute an equitable estoppel, but it did better by bringing to their understanding the point before them in this particular issue. Was or was not the plaintiff, as they found the facts, estopped from recovering this land because he mislead the defendant?

Under all the authorities, and they are very numerous, we think there was no error in refusing the point and submitting the evidence to the jury. All the assignments of error are overruled and the judgment is affirmed.


author: Mr. Justice Mestrezat,

text:
    Knappenberger, Appellant, v. Fairchild.

      Deed.—Covenant running with land—Notice.

    Where the owner of a city lot executes and delivers to the owner of an adjoining lot an agreement by which he gives the latter the right to insert beams in a wall which the former was about to build, and this agreement is expressly made a covenant running with the land, the.owner of the first lot cannot, ten years afterwards, and as against the grantee of the owner of the second lot who has taken title without notice of the agreement, declare the agreement void because of a failure of consideration.
    Argued Oct. 10, 1904.
    Appeal, No. 109, Oct. T., 1904, by plaintiff, from judgment of C. P. Westmoreland Co., Aug. T., 1903, No. 330, on verdict for defendant in case of Darwin T. Knappenberger v. John W. Fairchild.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Thompson, JJ.
    Affirmed.
    Trespass to recover damages for injury to a wall. Before Doty, P. J.
    The court gave binding instructions for defendant.
    Verdict and judgment for defendant. Plaintiff appealed.

      Error assigned was in giving binding instructions for defendant.

      Chas. Q. Crowell, with him Edw. B. MeCormioTc, for appellant.

      W. C. Peoples, with him B. ¡S. Atkinson, for appellee,
    cited: Howard v. Turner, 155 Pa. 349.
    December 31, 1904 :
   Opinion by

Mr. Justice Mestrezat,

The appellant, the plaintiff below, seeks to reverse the judgment of the trial court on two grounds : (1) The agreement of May 23, 1893, between Knappenberger and George W. Gump had no legal existence as Gump had neither title to, nor possession of, lot No. 95, and hence could not grant the right to occupy and use the strip along the easterly side of it; and (2) it was incumbent on the defendant Fairchild, Gump’s grantee, to show that he had notice of the existence of the agreement before it had become the duty of Knappenberger to notify him of its nullify.

1. At the time the agreement was executed on May 23,1893, by Gump and Knappenberger the former claimed to be, and the agreement between the parties recites that he was, the owner of the undivided one half of the lot. The partition proceedings in equity, which are in evidence in the case, show Gump’s title to the undivided half of the lot. The bill, filed on May 6, 1903, averred that in 1889 Gump purchased an undivided one-half interest in the premises and was the owner thereof, which facts the answer of the respondents admitted. On the day the bill was filed the court entered a decree that it be taken as confessed and “ that partition be made of the estate in question so that the said plaintiff (George W. Gump), his heirs and assigns, should have and enjoy in severalty the equal one half moiety thereof.” It is clear, therefore, that Gump was the owner of the undivided one half of the lot of ground, and was so recognized by Knappenberger at the time he and Gump entered into the agreement of May 23, 1893. Knappenberger accepted Gump’s title as sufficient, and on that title guaranteed to Gump, his heirs and assigns the rights set forth in the agreement which were, as specifically provided in the contract, to run with the land.

2. George W. Gump sold and conveyed to Fairchild, by deed dated March 17, 1903, his title to, and right and interest in, the premises, with the appurtenances. Knappenberger had executed and delivered to Gump, almost ten years prior to this date, the agreement by which he granted to Gump, his heirs and assigns “ that he and they may in the erection of any building on said lot No. 95 insert the beams and floor timbers thereof into the said wall now erected and hereafter to be completed by the said D. T. Knappenberger aforesaid, and use and enjoy the foundation and walls so erected and to be completed in common with him, the said D. T. Knappenberger, his heirs and assigns ; and that the same may there remain so long as the said wall shall stand.” This covenant, as stated above, was, by the terms of the agreement, to run with the land. The agreement was recorded March 26, 1903, and the deeds to Fairchild from George W. Gump et al. were recorded four days thereafter. There was no evidence on the trial of the cause showing what, if any, knowledge Fairchild .had of this agreement and its provisions prior to, or at, the time the title was conveyed to him. It is claimed by the appellant that the failure of the appellee to show affirmatively that he had notice of the agreement prior to the delivery to him of the deed by George W. Gump relieved appellant from the duty of notifying the appellee that the agreement was void for want of a consideration to support it. But we do not regard this position as tenable. By his deed to Fairchild, Gump conveyed all his right, title and interest in and to lot No. 95 which he owned at the date of the execution and delivery of the deed. As owner of the lot he had the right, under the agreement, to insert the beams and floor timbers of his building into the wall of the plaintiff on the adjacent lot. This right was granted by a covenant on the part of the plaintiff which runs with the land. This agreement was, at the date of the Fairchild deed, in force and effect, and no steps had been taken by Knappenberger to avoid it by reason of the alleged failure of consideration. The purchaser of Gump’s title to the lot, therefore, acquired a title to the premises and all rights appurtenant thereto which were vested in him by the deed and the Knappenberger agreement. So far as the evidence in the case shows, Fairchild may have known of the agreement when he purchased ; but be this as it may, his knowledge of its existence and the rights thereby granted cannot, under the facts disclosed here, deprive him of the right to hold and enjoy the title, rights and privileges which Gump had as the owner of the lot and which he conveyed by deed to his purchaser. The presumption is that Fairchild became possessed of what his deed gave him, and until it is shown that he had knowledge of the nullity of the agreement before he purchased from Gump, Fairchild’s right to the fruits of the covenant contained in the agreement cannot be successfully assailed. The burden rests upon Knappenberger to show that Gump’s title is defective and that Fairchild had notice of its invalidity when he purchased the premises. Otherwise Fairchild must be held to be an innocent purchaser without notice, and entitled to hold the rights granted by Knappenberger to Gump in the agreement of May, 1893.

If, as the appellant now alleges, his wall is upon his own ground and as a consequence the consideration for granting Gump the right to insert beams and floor timbers into the wall had failed and thereby the agreement became a nullity, he should immediately on the discovery of these facts have taken the necessary legal steps to have the agreement canceled and redelivered to him. Had he pursued this course successfully, Fairchild could not have been misled as to the extent of his rights in purchasing the premises and this litigation would have been avoided. The agreement was made by Knappenberger and Gump in May, 1893. Within a few months thereafter, Knappenberger says he knew that he had built the wall of his house on his own ground and not on Gump’s adjoining lot. Notwithstanding his knowledge of this fact, he took no action .toward repudiating or rescinding the contract until nearly ten years after lie admits he knew the fact which he alleges invalidates it and after Fairchild had purchased the premises and was exercising the rights granted hy the agreement. His duty to innocent purchasers, without notice from Gump required prompt repudiation of the agreement and, if necessary, the institution of legal proceedings for its cancelation. He wholly failed to observe his duty in this respect and is therefore not in a position, legal or equitable, to demand a rescission of the agreement as against Gump’s vendee, unless he shows the latter had notice of its invalidity when he took title to the premises. This he has not done and, therefore, this action must fail.

The judgment is affirmed.


text:
    Independent Natural Gas Company, Appellant, v. Butler Water Company.

      Water companies—Eminent domain—Natural gas company—Condemnation of land already devoted to public use.

    Where a water company has been compelled to condemn land for a dam owing to a necessity growing out of the increase of population of the community which it was incorporated to serve, a natural gas company which had its pipes laid under the land condemned, by a prior agreement with the landowner, is not entitled to an injunction to restrain the taking of the land, where it appears that by the expenditure of a few hundred dollars either before or after the construction of the dam, the pipes could be removed to other land of the water company not covered by the dam.
    Under the Act of April 29, 1874, P. L. 73, clause 2 of sec. 34, as amended by the Act of May 16, 1889, P. L. 226, water companies have the power to condemn franchises and property held for public use, and are not limited merely to private property.
    Argued Oct. 19, 1904.
    Appeal, No. 158, Oct. T., 1904, by plaintiff, from decree of C. P. Butler Co., May T., 1903, No. 2, dismissing bill in equity in case of Independent Natural Gas Company v. Butler Water Company.
    Before Mitchell, C. J., Dean, Fell, Beown, Mesteezat, Pottee and Thompson, JJ.
    Affirmed.
    Bill in equity for an injunction.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was in dismissing the bill.

      T. C. Campbell, with him S. F. Bowser, for appellant.
    The question involved in this case is whether the defendant corporation, without express grant in its charter but by implication of law, has authority by right of eminent domain to condemn property of the plaintiff corporation necessary to it to comply with the purposes of its corporate existence, and devote it to another and inconsistent use.
    The rights of plaintiff company rise higher than those of the landowner: In re Providence & W. R. R. Co., 17 R. I. 324, (21 Atl. Repr. 965); Market Co. v. R. R. Co., 142 Pa. 580.
    Authority given in general terms is presumptively not sufficient to authorize the taking, for an inconsistent use, of property already devoted to public use and necessary for the purpose to which it is devoted: Matter of Buffalo City, 68 N. Y. 167 ; Penna. R. R. Co.’s App., 93 Pa. 150; Scranton Gas & Water Co. v. Coal & Iron Co., 192 Pa. 80.
    Franchises held for public use are not authorized to be taken by water companies under the act of 1874.
    There being no express authority in the charter of defendant company to condemn, there can be no condemnation of plaintiff’s franchise by implication of law unless there is an absolute necessity so to do ; this necessity has not been shown: Penna. R. R. Co.’s App., 93 Pa. 150; Groff’s App., 128 Pa. 621; Scranton Gas & Water Co. v. Coal & Iron Co., 192 Pa. 80; Mobile, etc., R. R. Co. v. Alabama Midland Ry. Co., 87 Ala. 501 (6 So. Repr. 404) ; Groff’s App., 128 Pa. 621; Chesapeake & O. Canal Co. v. B. & O. R. R. Co., 4 Gill & Johnson (Md.), 1; Matter of Boston & A. R. R. Co., 53 N. Y. 574 ; In re Rochester Water Commrs., 66 N. Y. 413; B. & O. R. R. Co. v. Pittsburg, W. & Ky. R. R. Co., 17 W. Va. 812; Lake Shore & M. S. Ry. Co. v. N. Y. C. & St. L. Ry. Co., 8 Fed. Rep. 858; In re Providence & W. R. R. Co., 17 R. I. 324 (21 Atl. Repr. 965) ; St. Louis, H. & K. C. Ry. Co. v. Hannibal Union Depot Co., 125 Mo. 82 (28 S. W. Repr. 483); Lake Erie & W. R. R. Co. v. Seneca County Commissioners, 57 Fed. Rep. 945.

      W B. Brandon, for appellee.
    Water companies under the act of April 29, 1874 as amended are authorized to condemn franchises held for a public use : Penna. R. R. Co.’s App., 93 Pa. 150.
    The taking of the land is justified by necessity: West River Bridge Co. v. Dix, 47 U. S. 507; Phila., etc., Street Ry. Co.’s Petition, 203 Pa. 354 ; In re Towanda Bridge Co., 91 Pa. 216 ; Pittsburg Junction R. R. Co. v. Allegheny Valley R. R. Co., 146 Pa. 297 ; Stewart Wire Co. v. Lehigh Coal & Nav. Co., 203 Pa. 474.
    December 31, 1904:
   Opinion by

Mb. Justice Dean,

The gas company, the plaintiff company, was formed under the act of May 29, 1885 known as the Natural Gas Act. It was organized in 1888 for the purpose of supplying the population of the borough of Butler in Butler county with light and heat. Its charter route is through Oakland township in that county. Elizabeth Henry and Ebenezer Christie, the ow'ners of two adjoining farms in the township, granted by parol to the company the privilege of laying its gas pipes through their lands and the company so laid them; no compensation was demanded and none was paid. The pipes were laid immediately after the organization of the company and it has ever since been conducting natural gas through them from its wells beyond the Henry and Christie lands to the company’s consumers in Butler.

The defendant is a water company organized under the general Act of April 29, 1874, P. L. 73 ; its charter was granted November 2, 1877; its declared purpose in its charter was to supply the borough of Butler with pure water. Since .its organization it has been endeavoring to carry out the purpose of its existence. Its main supply was from its dam constructed about seven miles above Butler on Connoquenessing creek. The population of the borough, especially within the last three years, has increased very rapidly, and particularly the last year, when it rose 7,000, making probably a total of 18,000. It is not a migratory population, but is composed largely of skilled mechanics and business men. The probability is that the population will continue to grow, at least for some years. The daily consumption of water has increased from 1,000,000 gallons three years ago to 3,000,000 of gallons the last year. Tlie dam and creek, which theretofore had been the source of supply, became wholly insufficient. The obligation of the company under its charter and the act under which it was organized was mandatory; it was exposed to forfeiture of its charter unless it obeyed the mandate ; under its charter it had the right of eminent domain, which it exercised by appropriating the Henry, Christie and other farms for a large dam in which can be stored a large quantity of water to supply the borough. For the bed of this reservoir or dam the water company found it necessary to condemn part of the Henry, Christie and other farms ; a location at any other place is impracticable for such purpose; this dam will submerge the gas company’s pipes for a considerable distance through the two farms, for the pipe is about forty feet from the edge of high water mark at the breast of the dam, from which point the water grows shallower and narrower until the pipe line is no longer under water. The pipe line can be moved at a very small expense from where it is now laid to other lands of the Henry and Christie farms, or to other lands embraced in defendant’s condemnation proceedings, which are free from water.

The plaintiff claiming by a prior appropriation under its charter, filed this bill to enjoin defendant from appropriating for the bed of the dam the land on which its pipe is laid. The court below refused the injunction and dismissed the bill. There was no dispute as to the fact that the dam when completed would, to a very limited extent, submerge the pipe, nor could there be any dispute that to the extent the pipe was submerged there would be a joint occupancy of the same land by the two companies. Whether covering the pipe with water to the extent the water does cover it will be such an injury as will practically divest the gas company’s use of its property, is a question of fact.

So far as concerns the affirmation or reversal of this decree, it is not necessary that in review we should pass at this time on all the questions of law adverted to or discussed by the learned judge of the court below.and by counsel. We are of opinion that on one fact alone the decree dismissing the bill should be sustained. In the fourth and fifth findings of fact, the court finds that the gas pipe could be moved from its present location on the farms mentioned a very short distance west, where it would still be on land of the water company but above the water of its dam; that such removal would not cost exceeding $300, and would only be necessary if plaintiff’s’ apprehensions of injury to its pipes by reason of being flooded were well founded ; on the other hand, if said injury should follow even then the pipe could be removed to the new location at an expense not exceeding $700. Thus taking into view the utmost possible damage of a wrong estimate, it would be a slight one. These facts, and we do not doubt them, amply sustain the decree. In coming to this conclusion we consider only the peculiar facts bearing on this one question.

Here are two corporations, each having the right of eminent domain, each exercising that right under the terms of its charter to promote the health, comfort and prosperity of the inhabitants of the same borough; in the exercise of their corporate rights they clash ; without relinquishing any substantial power under its corporate franchise tho one can waive in favor of the other a mere technical right without substantial loss ; the other cannot give way without peril to its franchise ; a sufficient supply of water is an absolute necessity to the inhabitants of the borough; that necessity can only be met by constructing this reservoir at the exact place selected by defendant’s engineers. Under such circumstances which ought in equity to yield? The necessity is not one created by the company or one set up for its own convenience or for enlarged profits, but one arising from circumstances over which it has no control. Such a necessity as convenience created, it was held in Gas & Water Company v. Northern Coal & Iron Company, 192 Pa. 80, would not authorize one corporation in its exercise of eminent domain to appropriate the property of another corporation. The case before us rather comes under the ruling in Pittsburg Junction Railroad Co. v. Allegheny Valley Railroad Co., 146 Pa. 297. In this case it was held that “ where a proposed construction of plaintiff’s company’s road across defendant’s company’s yard, upon an elevated structure occupying but a trifling part of the yard, would cause comparatively little injury, .easily compensated in damages,” the new construction must be allowed, although the technical right to the prior appropriation was slightly infringed upon. Assume, therefore, as we must do-here, that the prior appropriation by the gas company is technically interfered with by the subsequent condemnation of the land by the water company, the injury is but slight and can readily be compensated in damages ; therefore,, on this ground alone, the decree is one which ought to have been made.

It is argued by appellant that the water company is not authorized to appropriate the franchise of other companies for its corporate purposes by condemnation proceedings. The general act of 1874 probably, only contemplated the condemnation of private property by water companies, but that act, as amended by the act of 1889, was so broadened in its scope as by necessary implication to include every species of property embracing such a right as plaintiff claims, whether its pipe line be regarded as an easement or a franchise. On either definition it was property. But assuming, what would not be a correct assumption, that under the statutes the water company had no power to directly appropriate and condemn the easement or franchise of another public corporation, then how stands the case ? The water company clearly had express power to condemn lands on which to erect cisterns, reservoirs and other structures for supplying water. In the exercise of this power it did condemn the Henry and Christie farms ; hence a slight injury resulted to plaintiff’s right of easement. Then we are brought back to exactly the same question we have already noticed, which is, if in doing that which it had an undoubted right to do it incidentally committed an injury which it had no express power to commit on another franchise yet which, to exercise its own franchise was absolutely necessary, would equity enjoin it? We say no, if under the authority of the case cited the injury was but slight and could be easily compensated in damages.

As will be noticed, we affirm the decree, however, on the single ground that the injury to plaintiff is but slight, and can be easily and fully compensated in damages.

Several grave questions are suggested by the opinion of the court below, and in the argument, such as, if both these corporations, carrying on their operations for the benefit of the same public yet by entirely different methods, if both cannot existTogether, which has the superior or dominant right ? It is argued, that without sufficient water the health and comfort of the inhabitants would so suffer that the borough could not exist; on the other hand, it is argued, that heat and light are as great a necessity as water. As both corporations supply the same population, and can on the facts continue to do so, it is wholly unnecessary to decide the point. From the many charters almost daily granted to private or quasi-public water companies, as distinguished from municipal corporations, which has tire legal riglit by condemnation proceedings to appropriate land and streams ? Such a question may in future demand from us judicial consideration and decision. There is no reason why we should even intimate an opinion on the subject now.

We pass no opinion on appellant’s seventh assignment of error, in which it is alleged the court erred in bolding that “ The plaintiff company, having entered under agreement with owners of the land, has no higher rights than such landowners.” Whether an entry on the land with charter right by consent of the owner, and possession taken in pursuance of that purpose, would or would not place the company in a stronger position than the owner, is immaterial, because we rule the case on another ground. If the case necessarily turned on this question we might, or might not, sustain the assignment.

All the other assignments are overruled, and the decree is affirmed without prejudice to plaintiff’s right in proper proceedings to recover damages.