Delaware & Hudson Canal Co. v. Genet

Opinion by Mr. Justice Mitchell, We are unable to concur in the view of the court below that the petition should be dismissed because there are no facts in dispute, and the controversy between the parties is one of law only, on the construction of the contract of 1864. The act of June 10, 1893, P. L. 415, is entitled “ An act to provide for the quieting of titles to land,” and the second section, with which we are concerned, was intended to give a party in possession the right and the opportunity to institute a proceeding to test his title as against an adverse claimant. At common law the adversary might lie by, concealed or quiet, and choose his own time for the contest, subject only to the risk that the statute of limitations might shut him out. The party in possession could do nothing but await the attack. Equity came to his aid by bills to perpetuate testimony, to quiet title, etc., but this assistance was limited and not always adequate. In this state the act of May 1, 1881, P. L. 24, gave the party in possession the further right, as against an adversary who had once asserted his claim in an ejectment, to rule him to bring his further action, or be barred. The act of 1893 is another step in the same direction. The party in possession is no longer bound to await the attack, but may act on the offensive and bring on the battle at once. The proceeding under the act is by petition setting forth the facts of such claim and right of possession, and the denial thereof, and if the court is satisfied that the facts set forth are true, it shall award an issue, and the verdict thereon shall have the force and effect of a verdict in ejectment on an equitable title. But this does not mean that disputed facts to be passed on by a jury, are essential to the remedy. What the party in possession needs, and what the act gives him, is the right to a present adjudication of his title but not necessarily by a verdict on conflicting evidence. The facts required to be set forth in the petition and found by the court to be true, are the facts of petitioner’s possession and the adversary’s denial of his title. When these appear, the issue is to be awarded, and if it should turn out at the trial that the dispute was not over facts, but over the law resulting from them, this would [348] not affect the remedy any more than it-would affect an equitable ejectment. The right to the issue having been shown by the possession and the denial of title, the issue goes on to trial on the facts and the law as in other cases. The petition in the present case showed possession, under claim of title, and asserted, though in very vague and general terms, a denial of the title by the appellee. Prima facie it came up to the requirements of the statute, and had the answer .disputed the right of possession, by denying the validity of the lease, or in any other manner, or had it set up any adverse title which the appellee- could have asserted by ejectment, the right to an issue would have been complete. But the answer raised no such controversy. It distinctly admitted the execution of the lease or contract on which appellant based its possession, and disclaimed explicitly any dispute or denial of the appellant’s lawful rights thereunder. It then went on to state appellee’s view of such rights, so far as regarded the coal which appellant was to own and pay for, and other coal which it asserted was not to pass to appellant but to remain the property of appellee, but which appellant had used without accounting for. That coal in situ is land, and that a lease of the entire body of coal in.a tract with unlimited right of mining, etc., has been treated in our decisions as a sale of the coal as land, as elaborately argued by appellant, maj*- be freely conceded, though the cases are very far from holding that all grants of mining rights to coal, even when unlimited, are necessarily and for all purposes to be considered sales of the land. But there was no dispute about this; the lease was admitted; the right of possession, and the right to mine the whole of the coal were not denied; there was no question of petitioner’s title to the land. What was disputed was the petitioner’s duty to account and pay royalty for a part of the coal, after' it had been mined, and appellee’s right to other parts of the coal, also after it had been mined. There was no claim to the land or to its possession, but to a part of the product after it had been severed and become personalty. It was as if a lessee farming on shares, had ruled his lessor to come into court and try a question of the division of the gathered crops. The answer of appellee set up no right which could have been asserted in ejectment, or which was within the class of adverse claims the [349] statute was intended to cover; nothing which could not have been asserted in a personal action for the severed coal, or for its value if it had been wrongfully sold by the appellant. The ease was not within the statute, and the learned judge was right in refusing the issue. Order affirmed