Grim v. Thomas Iron Co.

• Decision Date: 14 March 1887
• Docket Number: 245
• Parties: Grim et al. v. Thomas Iron Co
• Court: Pennsylvania Supreme Court

8 A. 595

115 Pa. 611

Grim et al. v. Thomas Iron Co

No. 245

Supreme Court of Pennsylvania

March 14, 1887

Argued February 28, 1887

ERROR to the Court of Common Pleas of Berks county: Of January Term 1886, No. 245.

Assumpsit by Seth K. Grim for the use of David K. Grim, Peter K. Grim Seth K. Grim, Jesse Kline and Henrietta Kline his wife against The Thomas Iron Company, to recover, as stated in the narr., "the price and value of iron ore mined upon the premises of the plaintiffs, for the royalty of the same." Plea, non-assumpsit payment with leave.

The following are the facts of the case as they appeared on the trial before SASSAMAN, J.;

On the 13th of November, 1860, Tilgham Schaeffer granted to The Thomas Iron Company the exclusive right to all the iron ore contained in a certain tract of land containing ten acres more or less, situate in Maxatawny township, etc., at a royalty of twenty-five cents a ton. On the 25th of March 1861, Samuel Thomas (in behalf of The Thomas Iron Company) contracted in lieu of royalty to pay him a round sum of fifteen hundred dollars for all the iron ore in the tract.

After the sale and transfer of the iron ore Tilgham Schaeffer's interest in the premises was sold under proceedings in the Orphans' Court, and purchased by Seth K. Grim and Daniel Clader. They believed that through this sale they acquired a good title to the iron ore as well as to the surface. In 1869 they brought ejectment against Thomas et al. for the iron ore. The case was tried in 1875, and resulted in a verdict for the defendant. Grim and Cloder sued out a writ of error, but on the 24th of March, 1879, the Supreme Court affirmed the judgment. See Cloder v. Thomas, 8 Norris, 343.

On the 7th April, 1879, Seth K. Grim made a lease of the iron ore under a small corner of this tract to one Jonathan Bear. Subsequently Bear began to mine iron ore, and sold some of it to The Thomas Iron Company. Before it was all delivered, and before the time for payment, The Thomas Iron Company discovered that it had been mined on a corner of the Schaeffer tract, the iron ore of which belonged to them. They then made an agreement with Bear "that they would retain the royalty of the ore, and if Grim owned the land they would pay him, if not, they had nothing to pay."

Grim then set up a claim that the title to the tract belonged to his father's estate. This action in assumpsit in the name of Seth K. Grim, to the use of his brothers and sisters and himself, was brought "for, as stated in the narr, the price and value of iron ore mined upon the premises of the plaintiffs for the royalty of the same."

The evidence offered to sustain the action was the lease of Grim to Bear, evidence of the quantity sold by Bear to The Thomas Iron Company, and their agreement that "they would retain the royalty, and if Grim owned the land they would pay him, if not, they had nothing to pay."

Bear in this lease covenanted to render an account of iron ore received at the expiration of six months, and "thereupon agree to pay for each and every ton of said iron ore the sum of fifty cents gross weight (2240 pounds) for each and every ton of iron ore which is taken out; as ground leaf they agree to pay fifty cents as before mentioned and payable every six months at the furnace where said ore is shipped to, that the said Seth K. Grim to draw the money as ground leaf from said furnace."

During the trial the defendant made the following offer of evidence:

Defendant proposes to prove by witness that he knows the tract, lives there upon it, is sixty-two years old, was born there, his father owned it before him, that the place where Bear mined ore was a part of the Schaeffer tract, and was always in their possession, to be followed by evidence of a recorded grant of ore to Samuel Thomas.

This for the purpose of showing that the title to the tract is in Samuel Thomas and not in the plaintiff, and that the royalty is not payable to the plaintiff.

Objected to:

1. As irrelevant and immaterial.

2. The title to the land upon which the ore was mined cannot be inquired into.

Offer admitted, bill sealed for plaintiff. (First assignment of error.)

The defendant requested the court to charge: That under all the evidence in this case the verdict must be for the defendant. Affirmed. (Second assignment of error.)

In the general charge the court instructed the jury as follows: I can readily see how the title to lands can be questioned in an action of ejectment with an issue joined on a plea of not guilty, or in an action of trespass quare clausum fregit on an issue joined by the plea of liberum tenementum. In the determination of such an issue many questions for mesne profits or damages, may settle injury to lands either by acts of trespass or mere acts of use and enjoyment, in violation of the rights of him who has the right of title and possession. [This is an action of assumpsit to recover money assumed to be due for royalty arising out of the working of an ore lease to which the plaintiffs were neither party nor privy, while the title and the royalty is claimed by other parties which I believe to be fatal to the plaintiff's claim here. These views lead us to affirm the defendant's points, and by this affirmation your verdict is directed in favor of the defendants.] (Third assignment of error.)

Verdict for the defendants and judgment thereon, whereupon the plaintiffs took this writ and filed inter alia the assignments of error above shown.

Judgment affirmed.

J. H Marx (Frank R. Schell with him), for plaintiffs in error. --...