Union Petroleum Co. v. Bliven Petroleum Co.

• Decision Date: 28 October 1872
• Citation: 72 Pa. 173
• Parties: Union Petroleum Co. <I>versus</I> Bliven Petroleum Co.
• Court: Pennsylvania Supreme Court

Page 173

72 Pa. 173

Union Petroleum Co. versus Bliven Petroleum Co.

Supreme Court of Pennsylvania.

October 22, 1872.

October 28, 1872.

October 22d 1872.

Before THOMPSON, C. J., READ, AGNEW and SHARSWOOD, JJ.

Error to the Court of Common Pleas of Venango county: No. 26, to October and November Term 1871.

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G. De Camp, for plaintiffs in error, cited:—As to service on parties in possession, Act of 13th April 1807, sec. 2, 1 Br. Purd. 533, pl. 5; Cooper v. Smith, 9 S. & R. 26; Dietrick v. Mateer, 10 Id. 151; Gratz v. Benner, 13 Id. 110. By an ejectment against tenant in possession, the landlord's possession would be affected, although his title might not be: Johnson v. Fullerton, 8 Wright 466; Davidson v. Barclay, 13 P. F. Smith 406. The plaintiffs in this case could have sustained ejectment: Karns v. Tanner, 16 P. F. Smith 297; Tidd's Practice 1213.

C. Heydrick, for defendants in error.—Case is the appropriate remedy for injury to an incorporeal hereditament: Funk v. Haldeman, 3 P. F. Smith 229; Black v. Hepburne, 2 Yeates 331; Cooper v. Smith, 9 S. & R. 26.

The opinion of the court was delivered, October 28th 1872, by

SHARSWOOD, J.

The title of the plaintiffs below, derived under the articles of agreement of September 26th 1859, between McClintock, the owner of the land, and Alden and Chase, was to "the exclusive right and privilege of boring for salt, oil or minerals," upon the McClintock farm, in Cornplanter township, Venango county, and in that respect was not to be distinguished from that which came under consideration and was passed upon by this court, in Funk v. Haldeman, 3 P. F. Smith 229. It is true that the word "exclusive" was not used in the grant in that case, yet upon the construction of the instrument it was held to be exclusive, and that the grantors had no mining privileges in common with the grantees. There, as here, the right granted was to experiment for oil; if found, to sever it from the land, and to take it, on yielding a third to the landlords as a chattel, not as any part of the realty. And the only possession to which the grantee was admitted was such as was necessary to the exercise of this right. The fact that one hundred and fifty dollars was in this case paid down in cash does not change the character of the grant. It was not, as in Caldwell v. Fulton, 7 Casey 475, a conveyance of the full right, title and privilege of digging and taking away stone-coal to any extent the grantee might think proper, which was held to be a conveyance of the entire ownership of the coal in place. It was, therefore, as in Funk v. Haldeman, the grant of a mere incorporeal hereditament. Indeed, we do not understand this to have been controverted in the court below, nor has it been made a question in this court. It follows that the only remedy which the plaintiffs had for the disturbance of their right was an action on the case. Ejectment they certainly could not have maintained.

What, then, was the legal operation and effect of the verdict and judgment in ejectment recovered by the defendants below in the Circuit Court of the United States? It certainly could have no other or greater force than a similar proceeding in a court of this state would have had. Giving it all the conclusiveness claimed for it, as it was a recovery of the land, it may well be doubted whether, not being for the same subject-matter now in controversy, it can have any effect whatever, even persuasive, upon the title of a person to what is only an incorporeal hereditament issuing out of, annexed to or exercisable within the land, unless indeed such incorporeal right was derived by grant from the party against whom the recovery was had, as to which no question is raised on this record for our determination. Had McClintock's title to the farm been set aside in favor of an adverse claimant, then indeed the grant must have fallen with it. But passing by this question, and admitting, for the sake of the argument, that the plaintiffs below were in fact the real parties in the action in the Circuit Court, or that it was a question which, upon the evidence, ought to have been submitted to the jury, it presented the case of only one verdict and judgment in ejectment, which clearly was inconclusive of the title, even between parties and privies. Such a...