Petition of Kariher

• Court: United States State Supreme Court of Pennsylvania
• Writing for the Court: MOSCHZISKER, C. J.
• Citation: 131 A. 265,284 Pa. 455
• Parties: Petition of KARIHER.
• Decision Date: 23 November 1925

131 A. 265
284 Pa. 455

Petition of KARIHER.

Supreme Court of Pennsylvania.

Nov. 23, 1925.

131 A. 266

Appeals from Court of Common Pleas, Lawrence County; S. Plummer Emery, President Judge.

Proceedings under the Uniform Declaratory Judgments Act by Orie M. Karihor for decree declaring his rights under will of Terhan H. Kariher, deceased, etc. From the judgment, G. W. Johnson Limestone Company appeals. Reversed, with directions.

See, also, 131 A. 272.

Argued before MOSCHZISKER, C. J., and FRAZER, WALLING, SIMPSON, KEPHART, SADLER, and SCHAFFER, JJ.

W. W. Braham (of Aiken & Braham), of New Castle, for appellant.

C. H. Akens, of New Castle, for appellee.

Under the Uniform Declaratory Judgments Act.

MOSCHZISKER, C. J. This is a proceeding in the common pleas of Lawrence county under the Uniform Declaratory Judgments Act of June 18, 1923 (P. L. 840; Pa. St. Supp. 1924, §§ 12805a1 to 12805a16). Three persons, claiming to be absolute owners of mineral property in a certain farm, negotiated a lease, or sale in place, of the limestone underlying the surface. After terms were agreed on, the proposed lessee questioned the title of one of the lessors, claiming the latter had but a life estate; whereupon, the lessor petitioned the court below for a declaration as to his property rights. All persons having a possible interest were joined as respondents,

131 A. 267

including certain alleged remaindermen and a trustee (Snyder's Est., 274 Pa. 574, 118 A. 609) appointed to represent other possible contingent remaindermen and persons who might in the future possess an alternative interest. The answers of three of the defendants, including the present appellant, denied the petitioner's absolute estate. The court below concluded that the petitioner possessed a fee absolute in an undivided one-third of the minerals in question, with the right to execute the proposed lease; whereupon the G. W. Johnson Limestone Company, the proposed lessee, filed this appeal.

In addition to attacking the legal correctness of the conclusion just stated, appellant raises the question of the constitutionality of the Declaratory Judgments Act; and, if this latter point is decided against it, then appellant questions the right of the court below to assume jurisdiction under the act, claiming that the orphans' court, and not the court of common pleas, was the proper tribunal for that purpose.

After briefly stating the salient facts of the case, we shall dispose of the above questions in their inverse order.

Abigail Kariher owned a farm of 50 acres in Lawrence county, underlaid with limestone. On August 23, 1902, she leased the limestone to appellant company for a term of 20 years from January 1, 1903. No limestone was quarried or removed during the term, but the minimum royalty stipulated for in the lease was paid annually. The lease contained an "option to [the lessee] to take and receive a new lease of said premises." Abigail Kariher died, a widow, in 1904, intestate, and leaving, as her only descendants and sole heirs at law, three sons, John C. P. Kariher, Hiram Kariher, and Terhan H. Kariher. In 1909, Hiram and Terhan conveyed their respective undivided interests in the farm to their brother John, but each reserved his interest in the limestone, oil, and gas underlying the premises. In 1912, the three sons leased 25 acres of the farm for oil and gas purposes. Hiram died in 1922, testate, and his undivided one-third interest in the limestone passed to Bernard F. Kariher, his only child. John still lives and retains his one-third interest in the limestone. Terhan died August 20, 1920, leaving to survive him an only child, Orie M. Kariher, the appellee. The lease now in controversy was negotiated by Orie M. Kariher, claiming to be the owner in fee of an undivided one-third of the mineral rights in question, and by his uncle John O. Kariher, claiming another third, and his cousin Bernard F. Kariher, claiming the remaining third. No question is raised as to the absolute ownership of the two last mentioned persons, but that of Orie M. Kariher is questioned, as before stated.

The controlling point submitted for decision by the court below was whether the proposed lease by the three persons above named "would pass and convey to such lessee full legal right and authority to mine and remove said limestone and to exercise all other rights and privileges on said premises granted to said lessee by the terms of such lease"; and, to pass upon this question, it, of course, became necessary for the court below to determine the subordinate question, also submitted, as to the quality and quantity of the interest of Orie M. Kariher, one of the three lessors.

Jurisdiction of the Court Below.

In considering whether the court of common pleas, rather than the orphans' court, had jurisdiction to determine the above questions, it must be kept in mind that the proposed lease, while negotiated pursuant to the option contained in the original lease, was not to be executed by representatives of the estate of the original lessor, Abigail Kariher, deceased, but by three persons claiming to be present owners of the pr

The Uniform Declaratory Judgments Act provides by section 1 that "courts of record, within their respective jurisdictions, shall have power to declare rights," etc., and by section 2 that "any person interested under a * * * written contract or other writings constituting a contract, or whose rights, status, or other legal relations are affected by a * * * contract, * * * may have determined [by the court] any question of construction or validity arising under the instrument * * * and obtain a declaration of rights, status, or other legal relations thereunder."

Since there was no effort in this proceeding to enforce against the estate of the deceased lessor specific performance of the option clause in the original lease—the proceedings being instituted, as before stated, for the purpose of ascertaining and declaring the legal right of one of the parties to the new lease to contract, so that appellant company, as well as the other parties to the contract agreed on, would know whether it was bound to, or could with legal safety, accept the lease in question and obtain thereunder the rights bargained for—we are of opinion that the court of common pleas was the proper tribunal to adjudicate the points involved, rather than the orphans' court.

Constitutionality of the Act.

Before considering the constitutionality of the Uniform Declaratory Judgments Act, we stop to note that the history of this form of procedure, and an excellent account of its scope, competence and effectiveness, may be found in an article by Prof. E. M. Borchard, in 28 Yale Law Journal, 1-32, 105-150. See, also, article by Prof. E. R. Sunderland in 16 Michigan Law Review, 69-89. Suffice it for present purposes to say that the procedure of declaratory judgments originated in the classical Roman law and

131 A. 268

later was adopted by and is still extensively used in many European and Spanish-American countries. Scotland has fully enjoyed this practice for four centuries; from there it was introduced into England, where it has been used in some form for 75 years, and in a very broad form for the past 40 years. The English Supreme Court of Judicature, having been given the rule-making power by the Judicature Acts, adopted rules in 1883 (Order XXV, rule 5) and 1893 (Order LIV, A) to provide for this very extensive practice, which now prevails in substantially every part of the British Empire.

The distinctive characteristic of the declaratory judgment is that the declaration stands by itself; that is to say, no executory process follows as of course. Again, in order to obtain a declaration, it is not required that an actual wrong should have been done, such as would give rise to an action for damages, and no wrong need be immediately threatened, such as would be the proper basis for an injunction. In other words, a "cause of action," in the sense in which that term is ordinarily used, is not essential to the assumption of jurisdiction in this form of procedure. It is upon these characteristics of the declaratory judgment that the chief constitutional attacks have been based; its opponents contending the declaration of legal rights and obligations contemplated by the act represents the exercise of a nonjudicial duty, which the Legislature cannot place on the courts, and that, since such declarations do not necessarily include the right to execution, they are not judgments at all, but represent the mere giving of advice, rather than the adjudication of controversies; further, that au occasion for judicial action cannot properly arise until some claim is made that an actual wrong has been done or is imminent; and, finally, that the whole idea of the declaratory judgment is an unallowable innovation.

In considering these contentions, it may first be noted that there are many judgments under present forms which do not include the right to execution, except possibly for costs, and the present declaratory judgment practice involves an award as to costs (see section 10 of the act); moreover, under the act before us (section 8), execution, or "further relief," based on a declaratory judgment, may be had where appropriate, and allowed by the court. Next, it may be noted that, since the numerous jurisdictions enjoying this practice all hold that a real controversy must exist, that moot cases will not be considered, and that declaratory judgments are res judicata of the points involved, such judgments cannot properly be held merely advisory; and that there can be proper occasion for judicial action before the infliction of injury or its immediate threat, is sufficiently shown, for example, by the quia timet actions, which lay before damage and without imminent danger thereof. Finally, it should be observed that an act like the present one, which permits only a more general use of a...