Titus v. Poland Coal Co.

• Citation: 275 Pa. 431,119 A. 540
• Decision Date: 03 January 1923
• Docket Number: 179
• Parties: Titus v. Poland Coal Co., Appellant
• Court: United States State Supreme Court of Pennsylvania

119 A. 540

275 Pa. 431

Titus v. Poland Coal Co., Appellant

No. 179

Supreme Court of Pennsylvania

January 3, 1923

Argued October 4, 1922

Appeal, No. 179, Oct. T., 1922, by defendant, from judgment of C.P. Greene Co., March T., 1917, No. 237, on verdict for plaintiff, in case of Emra L. Titus v. Poland Coal Co. Affirmed.

Trespass for mesne profits. Before RAY, P.J.

The opinion of the Supreme Court states the facts.

Verdict and judgment for plaintiff for $23,000. Defendant appealed.

Errors assigned were various rulings and instructions, appearing by the opinion of the Supreme Court, quoting record.

The case was well and carefully tried and the judgment is affirmed.

W. C Montgomery, of Crago & Montgomery, with him George D. Howell for appellant. -- The court was in error in leaving to the jury to find whether the mine cars and motors were essential to the operation of the colliery.

The tramway, trolley line and haulage system with mine wagons and motors, rails, etc., and the fan and fan motor were not so affixed to the soil as to be part of the realty: Beech Grove Coal & Coke Co. v. Mitchell, 193 Pa. 112; Nat. Bank of Catasauqua v. North, 160 Pa. 303; Vail v. Weaver, 132 Pa. 363; Meig's App., 62 Pa. 28; Justice v. R.R., 87 Pa. 28; Shellar v. Shivers, 171 Pa. 569.

There was a taking under a condemnation law and the damage would be the difference in the market value before and after, and it would be ascertained as of the date of entry, which in this case was October, 1912: Rider v. Power Co., 251 Pa. 18; Thompson v. Traction Co., 181 Pa. 131; Becker v. Traction Co., 30 Pa.Super. 546.

Sending Titus' calculations to the jury was error: Welliver v. Canal Co., 23 Pa.Super. 79; Himes v. Kiehl, 154 Pa. 190.

James J. Purman, with him James A. Garrison, for appellee.

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

OPINION

MR. JUSTICE WALLING:

This is an action of trespass for mesne profits. The plaintiff, Emra L. Titus, in 1901, being the owner of a tract of land in Monongahela Township, Greene County, conveyed the Pittsburgh vein of coal in one hundred and fifty acres thereof to J. V. Thompson et al., but retained the same vein of coal in the remaining fifteen acres of the tract. Thereafter the title to the one hundred and fifty acres of coal became vested in the Poland Coal Company, defendant, a Pennsylvania corporation, as did the title to the same vein of coal in some nine hundred and fifty acres of adjoining land. An expert examination led defendant to the conclusion that the most feasible location for a mine or colliery from which to reach the one hundred and fifty acres of coal, and also that in adjoining land, was the fifteen acres, which it neither had nor could purchase. The defendant, therefore, in October, 1912, took possession of the fifteen acres and, by proceeding in the court of quarter sessions under sections 1 and 4 of article XII, of the Act of June 9, 1911, P.L. 756 (see pp. 801, 804), sought to acquire it under the right of eminent domain. This proceeding was successful in the lower court, but failed in the Superior Court, on the ground that those sections of the act were unconstitutional; see Poland Coal Company's Case, 58 Pa.Super. 312. Meantime, defendant continued to occupy the fifteen acres, or so much thereof as it desired, made five openings therein, constructed an electric tram railway twelve hundred feet in length thereon, also a fan house equipped with a large electric fan and motor, together with a foreman's house, small powder house, etc., and proceeded with its mining operation. Plaintiff protested against this occupation and use of his land and in 1915 brought an action of ejectment against defendant to recover the fifteen acres, which he did by verdict and judgment in the lower court, affirmed by this court January 4, 1919; see Titus v. Poland Coal Co., 263 Pa. 24. The instant case for mesne profits, brought before, and tried after, the final termination of the ejectment suit, resulted in a verdict and judgment of $23,000 for plaintiff; thereupon defendant brought this appeal.

Appellant states the questions involved as follows, viz: "(1) Question of the true measure of damage in trespass and for mesne profits, following a recovery in ejectment. (2) What constitutes a coal mine or colliery; and what are 'trade fixtures' connected therewith? (3) Questions of the propriety of sending out with the jury 'calculations' prepared by the parties, in cases of tort, and where the evidence is conflicting and uncertain." Plaintiff's right to mesne profits was settled by his recovery in ejectment (Lane v. Harrold, 72 Pa. 267; Sopp v. Winpenny, 68 Pa. 78, 80) and, as he claimed only actual damages, we are relieved of any question as to such as are double, treble, or punitive.

In the establishment and prosecution of its mining operation defendant used and destroyed a considerable quantity of plaintiff's timber and five hundred tons of his coal, for which he was entitled to recover the fair value of the timber upon the stump and of the coal in place, and the jury were so instructed. On the affirmance of the ejectment suit, defendant vacated the premises, which it had occupied for over six years, and plaintiff was entitled to recover the fair rental value thereof during that time, as the jury were further instructed.

In the construction of its railway, etc., defendant had removed quantities of plaintiff's soil and had caused some to be washed away by water from the mine; it also left upon his premises large quantities of refuse, called "gob piles," etc., and the trial judge instructed the jury to allow plaintiff the expense of restoring the soil and removing the refuse, etc., not to exceed the value of the land. This follows Hershey v. H. S. Kerbaugh, 242 Pa. 227; Stevenson v. Coal Co., 201 Pa. 112; same case, 203 Pa. 316; Eshleman v. Martic Township, 152 Pa. 68; Lentz v. Carnegie, 145 Pa. 612; Welliver v. Penna. Canal Co., 23 Pa.Super. 79; Herron v. Jones and Laughlin Co., Ltd., 23 Pa.Super. 226; Glasgow v. City of Altoona, 27 Pa.Super. 55, 60.

The statute under which defendant sought to take the land in question being unconstitutional, was void (6 R.C.L. p. 117) and it follows that defendant was a mere trespasser upon plaintiff's land, and title to the buildings, fixtures, etc., it placed thereon vested at once in the owner of the land, as a gift, whether appellant so intended it or not: Huebschmann v. McHenry, 29 Wis. 655, 659. "The maxim quicquid plantatur solo, solo cedit applies with strictness as between the owner of the fee and a stranger making an erection on or affixing chattels to the land without the consent of the landowner, and any such erection or article annexed to the soil becomes the property of the landowner": 13 Am. and Eng. Enc. of Law (2d ed.), pp. 619, 620; Hill v. Sewald, 53 Pa. 271; Crest v. Jack, 3 Watts 238. "It is a familiar principle that if a stranger, without the consent of the landowner, makes an erection on or affixes chattels to the land, such erection or article annexed to the soil becomes the property of the landowner": Jacoby et al. v. Johnson, 120 F. 487, 488; and see 11 R.C.L. p. 1081, section 24. This applies to the buildings, the electric fan therein and the motor by which it was operated, also to the railway and the copper trolley wire strung upon poles and used in moving the cars. Nevertheless, on the affirmance of the ejectment suit, defendant removed the electric fan and its motor, also the rails and spikes from the tram track and the copper trolley wire. The trial judge rightly charged the jury, that those articles were fixtures and as such belonged to the plaintiff, who was entitled to recover their fair and reasonable value.

At the same time defendant removed a large number of pit cars used on the tram railway and also the electric motors by which the cars were operated. The trial judge submitted to the jury the question as to whether they were so related to the mine and highly necessary to its operation as to be fixtures within the meaning of that term as he properly explained it, and unless they so found, plaintiff could not recover therefor. This was all appellant could rightly ask. The Pennsylvania rule is that a chattel placed in an...