Green v. Ashland Iron Co.

The opinion of the court was delivered, by Agnew, J. It is undoubtedly true that the title to land cannot he tried and adjudicated in a transitory action: Mather v. Trinity Church, 3 S. & R. 509; Baker v. Howell, 6 S. & R. 476; Brown v. Caldwell, 10 S. & R. 114; Powell v. Smith, 2 Watts 126. But it is equally well settled that the title may incidentally arise and he heard in such an action: Wright v. Guier, 2 Watts 173; Elliott v. Powell, 10 Id. 454; Harlan v. Harlan, 3 Harris 509; Clement v. Wright, 4 Wright 250; Brewer v. Fleming, 1 P. F. Smith 102. As remarked by Judge Rogers in Harlan v. Harlan, p. 515, the mere assertion of title is nothing, the court looks to the substance, and when it appears in truth it' is a trial of the title, then it is properly ruled that replevin is not the proper action. While it is true (Judge Strong remarks in Clement v. Wright, p. 254), that in actions' of replevin or trover the title to real property cannot be directly tried and adjudicated upon, it is equally true that it may be incidentally brought into question, and may therefore be admitted in evidence. It is quite evident in this case that the title to the real estate on which the ore was mined was not in controversy. The ore in question was mined by the plaintiffs while in possession under an admitted lease. Lefever, the landlord, admitted their title to the ore, disclaimed,-and rested his defence on the plea of non cepit. Green and Yanhyning, the subsequent lessees, laid no claim to the ore as mined by themselves or under their lease, and there was proof of Green’s permission, as well as Lefever’s, to th# plaintiff to remove the ore after the expiration of their lease. It is true they set up a claim to the ore under Lefever as a right accompanying his demise to them, but it was a claim to it as mined or severed ore, and not as a part of the realty attached to the freehold. The real claim of the defendants, evidently was under a sale of the ore to them by Lefever, ore which they knew the plaintiffs had mined. The ground on which this claim is based is not very clear, whether on an independent sale or as an incident to the lease. In fact, howev-er, the defendants showed no lease, the paper being unstamped and excluded by the court, and the controversy resulted in the question upon the plaintiffs’ title, and their right to remove the ore after the expiration of their lease, and the right to maintain any action at all. The true question, therefore, was upon the title of the plaintiffs to the ore as a chattel, and not upon the title to the mines from which it had been severed. Under these circumstances we perceive no error in holding that replevin would lie, and in ruling that the right to recover the unwashed ore, was not affected by its being mixed with portions of earth that clung to it. It appears from the testimony [103] that ore is often wet, and in mining some dirt will cling to it, which must be washed away, and therefore that it is thrown out into piles to dry. This being the course of business in mining iron ore, recognised by Lefever, the landlord, who laid no claim to retain the earth remaining in contact with the ore, it would be a technicality much too refined to hold that replevin for the ore thus mined and thrown out will not lie. There is an obvious distinction between a disability of person which prevents a party from maintaining an action, and a defect of title which prevents his recovery. The point put by the defendants was that the plaintiffs were a foreign corporation having no legal existence in this state at the time this suit was instituted, and therefore could not recover. This was evidently a prayer for instructions founded on the disability of the person of the plaintiffs, and not because of an inability to acquire title to the thing in suit. The defendants asked no instructions on the latter, and, on the contrary, in their 4th point, asked the court to say that the plaintiffs, under their agreement with Lefever of February 8d 1859, had power to mine and take away ore, but had no right to remove the soil mixed with the ore, &c. The question was therefore not made to the court how far the plaintiffs were unable to obtain title to the ore, because of the invalidity of the lease under the 5th section of the Act of 26th April 1855, prohibiting foreign corporations from holding lands in this state without a special authority of law. Under the authority of Steward v. U. S. Ins. Co., 9 Watts 126, and the validating Act of April 14th 1868, Pamph. L. 1068, the court held that the action could be maintained notwithstanding the plaintiffs’ foreign character. In this there was no error, and we will not reverse on a point not made in the court below. The answers of the court as to the notice required to terminate the lease, which was indefinite in its duration, did the defendants no harm. Both parties called upon the court for instructions'on this point, and they cannot complain that the court therefore stated the necessity of the notice to end the lease. But the court submitted the case to the jury on the fact of the abandonment of the possession by the plaintiffs and the entry of the defendants into possession, and the question whether Green had given leave to the plaintiffs to return and remove the ore. The case was fairly submitted on its facts, and we perceive no error therefore in the answers as to the notice to quit. Judgment affirmed.