Fidelity-Philadelphia Trust Co. v. Lehigh Valley Coal Co.

• Decision Date: 24 September 1928
• Docket Number: 161
• Citation: 143 A. 474,294 Pa. 47
• Parties: Fidelity-Philadelphia Trust Co., Executor, v. Lehigh Valley Coal Co., Appellant
• Court: Pennsylvania Supreme Court

143 A. 474

294 Pa. 47

Fidelity-Philadelphia Trust Co., Executor, v. Lehigh Valley Coal Co., Appellant

No. 161

Supreme Court of Pennsylvania

September 24, 1928

Argued April 17, 1928

Appeal, No. 161, Jan. T., 1928, by defendant, from order of C.P. No. 3, Phila. Co., Sept. T., 1908, No. 2589, dismissing exceptions to report of referee, in case of Fidelity-Philadelphia Trust Company, sole surviving executor of William T. Carter, deceased, v. Lehigh Valley Coal Co. Reversed.

Trespass for conversion of culm. Before FERGUSON, P.J.

The opinion of the Supreme Court states the facts.

The finding of the referee was in favor of plaintiff for $144,920.49.

Exceptions to report of referee dismissed. Defendant appealed.

Error assigned, inter alia, was order dismissing exceptions quoting record.

Judgment reversed.

Ralph B. Evans, with him F. W. Wheaton and P. F. O'Neill, for appellant. -- The evidence does not support the referee's inference of fact that Carter never abandoned the culm banks in question.

Carter's possession of the banks and the land on which they were deposited consisted merely in this, that from 1862 until 1876 he continued to use the land as a convenient dumping ground for his refuse. This in itself does not amount to possession, in the legal sense, sufficient to furnish the basis of a claim of title: Stark v. Coal Co., 241 Pa. 597.

The question of abandonment is to be determined as of the time when Carter commenced operations.

The referee failed to find as a fact whether or not Carter knew that the culm was being deposited on defendant's property.

Carter never acquired title to the culm which had been deposited by his predecessors: Doster v. Zinc Co., 140 Pa. 147.

Whatever rights plaintiffs may have had have been lost by lapse of time: Wickersham v. Lee, 83 Pa. 422; Pitts. & C.R.R. v. Byers, 32 Pa. 22; Campbell v. Holt, 115 U.S. 620; Hamilton v. Hamilton, 18 Pa. 20; Knauer v. McKoon, 19 Pa.Super. 539.

Russell Duane, of Duane, Morris & Heckscher, with him Henry A. Craig, for appellee. -- The findings of fact of a referee selected under the provisions of the Act of May 14, 1874, P.L. 166, are conclusive if there is any evidence sufficient to sustain them, and this rule is, in the absence of manifest error, enforced by this court where a referee has drawn inferences from facts and made findings thereon: Phila. Co. v. Gas Co., 180 Pa. 235; Sykes v. Thornton, 223 Pa. 589; Stark v. Coal Co., 241 Pa. 597.

In conformity with the referee's findings, plaintiff contends that, from 1862 until his death in 1893, Carter had open, continuous, exclusive and notorious possession and control of the culm banks and the underlying land. Defendant seeks to oppose this contention.

After permitting Carter, and later his executors, to occupy the land for more than forty years without complaint, its owners could not expect them to remove the culm, at least without notice so to do, and should not be allowed to penalize them for their failure to remove without notice on any theory of forfeiture or abandonment: Empire S. & I. Co. v. Lawrence, 27 Pa.Super. 620; Leininger v. Goodman, 277 Pa. 75.

The statements and declarations by Carter possessed all of the characteristics necessary to satisfy the rule as to the admissibility of utterances as verbal acts: Nulton v. Nulton, 247 Pa. 572; Arnold v. Cramer, 41 Pa.Super. 8; Merigan v. McGonigle, 205 Pa. 321; Mickey v. Hardin, 79 Pa.Super. 592.

No question of abandonment can arise as long as Carter had the possession and control over the banks which the referee has found as a fact existed throughout the whole period from 1862 to 1893: Sturdevant v. Thomson, 280 Pa. 233.

In every definition of abandonment to be found in the textbooks the concurrence of relinquishment of possession and the intent to relinquish title is insisted on: Com. v. Koontz, 258 Pa. 64; Patterson v. Williams, 52 Pa.Super. 299.

The case is ruled by Sturdevant v. Thomson, 280 Pa. 233.

Before FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.

OPINION

MR. JUSTICE FRAZER:

William T. Carter died in 1893, owner of the Coleraine mining property in Carbon County, and in the same year his executors, the late Wayne McVeagh and the Fidelity-Phila. Trust Co., the latter now sole surviving executor, sold the land, comprising 327 acres, with two coal mines thereon, together with the buildings and one large culm bank, known, in these proceedings, where it figures only incidentally, as No. 2 bank and occupying space on the land sold. No other property was included in the sale. In 1905, twelve years after the death of Carter and the sale of his holdings, the executors received information from Charles Carter, son of deceased, that the Carter Estate claimed title to another large culm bank, here designated as No. 1, located on land adjoining the Carter property, formerly owned by Coxe Brothers & Co., also coal operators, but afterwards acquired by purchase by the Lehigh Valley Coal Company, appellant. Three years later, in 1908, the executors formally asserted, in written communications to appellant company, title to the No. 1 bank as executors under decedent's will, declaring that the bank had been formed by deposits of mine refuse from Carter's No. 1 mine, between the years 1862 and 1876. Appellant company refused to recognize the claim, asserted in its turn legal title to the culm, and in 1908 proceeded, by means of washery operations, to reclaim the small sized coal mixed with the culm, and, as admitted, realized a profit of $75,251.34 from the sale of the coal thus reclaimed. In the same year, 1908, an action of trespass was instituted against appellant by Carter's surviving executor, the Fidelity-Philadelphia Trust Company, to recover the sum of $462,312, which it claims was the market value of the coal and which, as it alleges, was wrongfully converted by appellant to its own use. By agreement the case was referred for determination to a referee under the Act of May 14, 1874, P.L. 166. Because of the difficulty in obtaining testimony of witnesses who had personal knowledge of conditions in and about the Coleraine mines at the time and after Carter took possession in 1862, the hearings before the referee were prolonged to January, 1922. The case was later argued before the referee and on November 18, 1926, he filed his report, awarding damages to plaintiff in the sum of $144,920.49. Exceptions to the report were filed by defendant; these were overruled by the referee, and in a brief opinion the lower court confirmed the report and entered judgment for plaintiff in the sum of $154,968.30, which amount included interest on the sum awarded by the referee and $5,000 as his fee. From this judgment the coal company appealed.

On July 1, 1862, Carter and his then partner, Schoener, took possession of the collieries and breakers No. 1 and No. 2, under an assignment of a lease from Ralston and Johnson, the then operators. During their working of the mines, from 1862 to 1876, the culm therefrom, consisting of dirt, slate and small sized coal, then not usable and of no market value, was deposited upon two different locations, the culm from No. 2 breaker being dumped on a pile situated on the Carter land, while the culm from No. 1 breaker was deposited on a spot close to that breaker, but on land then owned by Coxe Brothers & Company and later acquired by appellant. It is the latter culm bank, located on this adjoining land, we have in dispute here. The evidence as to the material question of the time of the origin of the culm heap is conflicting, plaintiff claiming it was started in 1861 by Ralston and Johnston, while appellant asserts that the first deposits were made at least previous to 1856. In 1876, No. 1 mine with its breaker was abandoned by Carter and thereafter no more culm was dumped on that particular pile. At the time the sale of Carter's property was made in 1893 no mention of the culm bank was made and there was no attempt to include it in the conveyance, for the reason, as given in plaintiff's statement of claim, that the executors "remained in ignorance of said decedent's right and title to the aforesaid deposits of culm which, as averred, stood on adjacent ground not owned by decedent, and therefore not conveyed by plaintiffs."

The main answer of defendant is that Carter, neither at the time of his death nor at any time previous, had any right or title of ownership to the culm, for the reasons, among others, that when he deposited it on land not his own he intermingled it with culm previously, placed on the same location by his predecessors during the time they operated the Coleraine Collieries; that he used this manner and place for getting rid of what was then regarded throughout the anthracite coal mining regions as a thing of no value, an annoyance troublesome to dispose of; that he knew he was depositing the culm on land to which he had no title; that he never exercised any act of dominion over it or asserted title to it; that through a long course of years vast quantities of culm were taken and carried away by persons when and how they desired without compensation to Carter; and that under these facts and circumstances Carter intended to relinquish and abandon any legal interest he may have had in the culm and that he did in fact abandon the culm and all claim of title to it.

The referee found, inter alia, that the immediate predecessors of Carter, Ralston and Johnson, were the originators of the culm bank in 1861; that they abandoned the culm when their lease of the Coleraine property was assigned to Carter and his associate in the following year; that Carter appropriated this abandoned culm upon taking charge of the mines; that there was insufficient evidence to warrant a...