Leininger's Appeal

Mr. Justice Trunkey delivered the opinion of the court, The plaintiff claims that for many years it has owned and had actual possession of thirteen contiguous tracts of land, containing thirty-two hundred acres, situate in the counties of Dauphin and Schuylkill. Upon the land it built houses, saw-mills, cut timber, constructed railroads, and carried on extensive mining operations. It has three colleries, and improvements necessary and convenient for mining coal. The greater part of the land is an unenclosed and unimproved wilderness. One of the tracts was warranted and surveyed in the name of John Lengel in 1794, and on the south end of that tract the plaintiff has a colliery. Over fifty years ago two small tracts were warranted and surveyed, one in name of John ' Huber, the other in name of William Hoch, and these are contiguous and cover the greater part of the north half of the John Lengel tract. The defendants claim that the Huber and Hoch tracts were sold for taxes, and that a good title for said tracts by divers conveyances has been vested in themselves. Their entry was on one of these tracts, and there the acts were done which are complained of in the bill. No improvements had been made on these tracts, the north half of the John Lengel tract, prior to the defendants’ entry. They commenced work on the 6th of October, 1879, and before the bill [405] was filed had cut timber, erected a breaker and shanty, dug shafts, sunk a slope, and mined and carried away'coal. The Master finds that the plaintiff had no knowledge of the entry by defendants until November 22, when its “bush ranger” went and found them at work building a frame breaker. Hoffman, the plaintiff’s engineer, heard of the defendants’ operations about the middle of November; he informed the superintendent who sent Mason, the bush ranger, and he gave notice to the defendants to quit on November 22 — the bill was filed the 19th of January following. All the plaintiff’s improvements were in Dauphin county. The land claimed by defendants was wild land, situate in Schuylkill county, assessed as unseated. It is within the marked lines of the land claimed by the plaintiff, and, doubtless, the plaintiff had such possession of the whole as was good against a mere intruder, and if continued uninterrupted would ripen into a title under the Statute of Limitations. But if the defendants had good title they were not trespassers. Were they sued for the alleged trespass and waste, upon showing good title in themselves they would defeat the action. If they have no valid title the law gives a full and adequate remedy for their trespass, unless the injury is irreparable. For cutting timber trees and converting them to their own use, trespassers are liable to pay treble the value thereof.' A plaintiff in ejectment may have a writ of eslrepement to prevent the mining of coal, and the proceedings respecting such writ are regulated by statute. In this ease, by bringing one suit in ejectment the plaintiff will be entitled to as effective remedy to stay waste as an injunction in equity. If confined to the law courts the plaintiff has no occasion for a multitude ol‘ actions to protect its rights. Courts of equity may enjoin where the value of the inheritance is in jeopardy, or irreparable mischief is threatened in relation to mines, quarries or wood land. Injunctions are not often granted against a defendant in possession, yet they are not always denied. If the defendant is out of possession and enters or threatens to enter upon lands in possession of the plaintiff to commit acts in the nature of waste, equity is more ready to interfere. When a defendant acts or proposes to act under an assertion of right, it must be a peculiar ease which, will justify an injunction against his doing that which if he be the real owner would be the legitimate exercise of a right. It is not in every case an insuperable bar to an injunction, that the defendant claims title and disputes the plaintiffs’ right. The court must judge whether the circumstances of the ease make it necessary to interfere by injunction. What the peculiar circumstances must be, is impossible to define. [406] These principles were expressly recognized by Justice Strong in Munsons v. Tryon, 6 Phil. R., 895, and he held that the circumstances of that case were so peculiar as to move the chancellor to act. He also remarked an increasing disposition in courts of equity to prevent waste or partial destruction of property, even though done or threatened under an assertion of title. But since that decision, as well as before, however it may be elsewhere, the courts of this state have no increasing disposition to impinge the right of trial by jury in the granting of injunctions to prevent a party who claims title, doing that which he has a legal right to do, if his title is valid, unless there are special reasons why he should be enjoined. Had the settled principles recognized in Munson v. Tryon been heeded rather than the observations relative to a growing tendency in courts of equity to grant injunctions against trespass in the nature of waste, the decree in the pending case would probably have been different. Here the defendants claim title to a tract of land long ago warranted and surveyed and the lines marked. It is entirely outside the actual occupancy of the plaintiff, but not of its possession before the entry by defendants. The plaintiff, with knowledge that the defendants had taken possession and were preparing to mine coal, did not invoke injunction for nearly two months, nor until after the mining had been begun. There was no imminent peril requiring a speedier remedy than given at law. The evidence fails to show danger of irreparable injury, unless relief be granted in equity; nor did the Master find any unusual or peculiar circumstances to distinguish this case from an ordinary taking possession of unimproved land under a good faith assertion of title, when the possession had previously been in an adverse claimant. It does not appear th'at the defendants’ claim of title is in bad faith — the nature and limited extent of the improvement indicate the open assertion of their right rather than an attempt to carry away the body of coal under a false claim. If the defendants’ title is good their entry was lawful, and they had the right to continue in possession. What they did and were doing, if the real owners, was the legitimate exercise of their right, and we discover nothing peculiar in the case to justify an injunction, the effect of which was to turn them out. Decree reversed, and bill dismissed at the costs of the appellee.