Griffin v. Delaware & Hudson Co.

Citations

• 257 Pa. 432
• 101 A. 750
• 1917 Pa. LEXIS 755

Syllabus

<p>Real property — Trespass quare clausum fregit — Parties out of possession — Right to maintain action- — Goal—Removal — Act of May 25, 1887, P. L. 271.</p> <p>1. At common law an action of trespass quare clausum fregit cannot be maintained by one not in possession, either actual or constructive, of the land upon which the alleged trespass has been committed.</p> <p>2. The Practice Act of May 25, 1887, P. L. 271, providing that certain actions ex delicto are to be brought under the one name of trespass, did not change the fundamental requirements upon which the right to recover rests, or entitle a party to bring an action of trespass where an action for the same cause would not arise at common law.</p> <p>3. In all freehold lands an adverse claim to the mineral, must be distinctly established against the owner of the surface, and this may be effected by the production of documents showing that the minerals have been conveyed, excepted or reserved, so as to become vested in the claimant.</p> <p>4. In an action of trespass for an alleged unlawful mining of coal from plaintiffs’ land it appeared that plaintiffs had never been in actual or constructive possession of the surface but that the same was in possession of parties holding adversely; that such adverse holders had leased the underlying coal to defendant and that defendant had removed the coal. Plaintiffs relied upon a paper title to the land in dispute. The lower court concluded that plaintiffs’ paper title gave them constructive possession of the coal, although not of the surface, and dismissed exceptions to the report of a referee finding in favor of plaintiffs. Held, that as the coal had never been severed by plaintiffs or their predecessors in title, they were not in constructive possession of the coal and could not maintain an action of trespass for the unlawful removal thereof, and the judgment was reversed.</p>