Wilmer v. Philadelphia & Reading Coal & Iron Co.
| Decision Date | 26 June 1917 |
| Docket Number | 4. |
| Parties | WILMER v. PHILADELPHIA & READING COAL & IRON CO. |
| Court | Maryland Court of Appeals |
Appeal from Circuit Court No. 2 of Baltimore City; Carroll T. Bond Judge.
Suit by Edwin M. Wilmer, substituted trustee, etc., against the Philadelphia & Reading Coal & Iron Company. From a decree sustaining the demurrer and dismissing the bill, plaintiff appeals. Affirmed.
See also, 124 Md. 599, 93 A. 157.
Argued before BOYD, C.J., and BRISCOE, THOMAS, URNER, and STOCKBRIDGE, JJ.
David Ash, of Baltimore, for appellant.
Ralph Robinson, of Baltimore, for appellee.
This is an appeal from a decree sustaining a demurrer to, and dismissing, an amended bill of complaint, filed by the appellant against the appellee. The plaintiff alleges that he is the duly substituted trustee under the will of Jane H Nicholas for the purposes of the trust therein created, by an order of circuit court No 2 of Baltimore City, passed the 12th day of July, 1913, and that the defendant (appellee) is a foreign corporation "engaged in the business of mining, transporting, and selling coal and other mine products, with offices located in the city of Baltimore, and transacting business in said city"; that by the terms of the will of Jane H. Nicholas, who was the owner of a one-sixth fee-simple interest in certain land situated in Schuylkill county, Pa., described in an indenture, a copy of which is filed, her estate was divided into six equal parts, one of which devolved upon the plaintiff as such substituted trustee, for the benefit of Philip N. Nicholas, for the term of his natural life, he being still living; that the signature of George C. Nicholas, the alleged committee of Philip N. Nicholas, to said indenture, by his alleged attorney, was unauthorized; and that it was incompetent for said alleged committee so to lease said land, without leave of the court first had and obtained.
It is then alleged that by the terms of the will an undivided fee-simple interest in said land had devolved upon the plaintiff, as tenant in common with certain other cotenants therein, the defendant being one of them; that the defendant had occupied said land from the 1st of January, 1890, the time of the death of said Jane H. Nicholas, or prior thereto, to the present time, mining the same, and since said date opened new mines thereon without the leave of the plaintiff, or any predecessor of his in title, and received the rents, issues, and profits thereof, which amounted to a great sum of money, after the deduction of all necessary expenses in the operation of the mines, and used the same for the purposes of its mining business, and for the erection and occupation of works and houses thereon, and has encroached upon the rights of the plaintiff, its cotenant in the premises, as herein more particularly set forth, without leave, license, or warrant in law, and without any contract or lease with or on behalf of the plaintiff, or any predecessor of him in said trust; that the defendant has been and still is mining large quantities of coal and other products of said land from mines already opened prior to the 1st of January, 1890, and prior to the date of the alleged indenture, and from mines opened subsequent to said dates, etc.
It is further alleged that defendant is still using and otherwise disposing of the coal and products of mining taken from said land, as well as the land itself, and has erected buildings, tracks, and machinery thereon, and has otherwise wrongfully used said land continuously, year after year, to the present time, "to the exclusion of your orator from his rights therein and in utter disregard of said rights, to the great loss and damage of and to said trust estate, and the depletion of the coal and other mineral deposits upon said land, and the value of said land, and has unwarrantably leased and undertaken to lease portions of said land for other purposes than mining to strangers to this plaintiff, who have no privity of contract with your orator." It is alleged that plaintiff had demanded an accounting, but the defendant had failed to account to him, or any predecessor of him, in the premises, for any part of the rents, issues, or profits of said land, or for any matter of account whatsoever, since the 1st of January, 1890.
The bill prays for (a) an accounting; (b) that defendant be decreed to pay the plaintiff all sums found to be due on said accounting; (c) that the defendant be enjoined "from further excluding your orator from said land, and from further interfering with the rights of your orator in said land held by this trustee in trust as aforesaid, and from mining or removing any coal or other property from said land; and from further occupying said land adversely to the interests of your orator"; (d) that defendant be adjudged to pay to the plaintiff such damages as he may have sustained from the wrongful acts of the defendant; and (e) for further relief.
As there were not filed with the bill copies of the order of court, by which the plaintiff alleges he was appointed, and of the will of Jane H. Nicholas, we have no information in the record of their contents beyond the allegations in the bill. The judge of the lower court could not properly have granted the injunction prayed for without having those exhibits before him. Miller's Equity Procedure, § 582, pp. 689, 690; Miller v. Balto. Co. Marble Co., 52 Md. 642, 646. Under the circumstances of this case it was necessary to have before the court a copy of the will, as the court is not authorized to accept the construction placed on it by the plaintiff, especially as the copy of the lease filed with the bill shows that it was signed and executed by "George C. Nicholas, Committee of the Estate of Philip Norbourne Nicholas." The amended bill seems to proceed on the theory that the defendant and the plaintiff are tenants in common. In addition to what we have quoted, it as alleged that:
"Excepting as arising from said cotenancy, no contractual rights or privity exist or have existed between him, or his predecessor in title, and said defendant."
It is contended by the appellee that the bill in effect alleges an ouster. The "indenture" referred to, marked "Plaintiff's Exhibit A," is a lease dated January 1, 1900, to the appellee by a large number of persons, including "George C. Nicholas, Committee of the Estate of Philip Norbourne Nicholas, by his Attorney in Fact, Cumberland Dugan." Edwin M. Wilmer, individually, is also one of the lessors. By that lease the lessors undertook to grant, demise, and let to the defendant "the exclusive right and privilege of digging, mining, and carrying away anthracite coal wholly at their own cost and expense in and from their interest (being two hundred and eighty-three five hundred and seventy-sixths part) of, in, and to" certain tracts in Schuylkill county, Pa., with the right to deposit the slate, dirt, and refuse thereon, for the term of 15 years, from the 1st day of January, 1899, to the 31st day of December, 1913. It is signed, sealed, and acknowledged, and, when executed by attorneys in fact, it purports to be executed under letters of attorney intended to be recorded in Schuylkill county, Pa.
Although according to the bill the appellant was not appointed substituted trustee until the 12th of July, 1913, and he was individually a party to that lease, the first prayer of the bill reads as follows:
"(a) That said the Philadelphia & Reading Coal & Iron Company, defendant, may answer this bill, and discover and set forth in detail the amount of tonnages of coal and other products mined at, on, and from the land aforesaid, by, on, or on account of or for the benefit of said defendant, as well as to discover and set forth, in detail, the tonnage of each and every grade of coal and other products mined as aforesaid, by said defendant, monthly since the month of January in the year 1890, and to set forth in detail all sums by it received from said coal and other products, and each of them, from or on account of sales, or in any other manner whatsoever, from and since the 1st day of January, 1890, as well as all profits by it in any way made during the said time on said land, and the products thereof, and each of them, and account with your orator for all your orator's interest in the rents, issues, and profits of said land, so occupied as aforesaid, by said defendant, from and since the 1st day of January in the year 1890 to the present time."
Then follow the prayers for a decree requiring the defendant to pay over all sums found to be due on said accounting, for an injunction, for damages, and for general relief.
The argument of the case was devoted mainly to the question whether relief should be granted to the appellant in this state, inasmuch as the land in question is in Pennsylvania the title to which the defendant alleges is involved and is really the main issue. It would probably require a large force of clerks to furnish the information demanded by the prayer quoted above, and, although it is true that the appellant was not appointed trustee until July, 1913, he was one of the lessors in the lease referred to, and presumably had every opportunity to know what was received by the lessors, and what each was entitled to. The lease contains many provisions for the protection of the lessors, amongst others one requiring the company to furnish them, on or before the 10th of each month, a correct...
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