Guzzi v. Delaware & Hudson Co.

Opinion by Head, J., The plaintiff filed this bill in equity against the defendant corporation praying: first for an injunction to restrain it from the further mining of coal under cer — 53 — tain premises averred to belong to her without leaving sufficient support for the surface; second, that an account be taken of the damages already sustained from said mining and a decree be entered requiring the defendant to pay the same. In her bill she first averred that she was the owner in fee simple of a certain tract of land in the City of Carbondale, the boundaries of which are set forth. She then admitted the defendant company was the owner of the coal underlying the surface of the said lot and was engaged in mining therein; that by reason of the manner in which said mining was conducted, her surface land had broken and caved in with the result that the buildings thereon had been seriously damaged. The defendant, — raising no question as to the jurisdiction of the court to entertain the bill, — answered on the merits, denying that the plaintiff had any title whatsoever to the lot of ground in question ; averring it was the owner of the coal and was but exercising its right of ownership in prosecuting its mining operations in the manner in which they had been conducted, &c. Issue was joined and the case proceeded to final hearing. The learned court below thereupon dissolved the preliminary injunction which had been first entered, but determined the plaintiff had suffered certain damages and filed a decree requiring the defendant to pay the amount thereof. From that decree comes this appeal by the defendant. Clearly enough we have before us in substance an action of trespass. Unless the plaintiff has established that she was the owner of the locus in quo, her case has entirely failed. To support her averment of ownership, she offered in evidence two certain deeds showing that her alleged title came from one Mary Duffey who, in 1906, had undertaken to- convey some interest in the premises in dispute to one Thomas P. Duffey who later conveyed to the plaintiff. What title then had Mary Duffey, the plaintiff’s grantor? In the attempt to so answer this question as to fix title in her, the plaintiff — 54 — was permitted to offer in evidence, over the objection of the defendant, the records and judgments in two certain actions of ejectment theretofore tried in the Court of Common Pleas of Lackawanna County. In the first of these Mary Duffey was plaintiff and one Mary V. Duffey defendant. The plaintiff recovered and judgment was entered in her favor. In the second action Mary Y. Duffey in turn was plaintiff and Mary Duffey the defendant. This action resulted in a verdict and judgment for the defendant. One other piece of evidence offered by the plaintiff in the present action was also admitted over the objection of the defendant. This was a deed in which the defendant company was grantor and Mary V. Duffey, grantee. It was made in 1893, and by it the defendant undertook to convey “the surface or right of soil in a certain lot in Carbondale, — which we understand to be the premises in dispute, — to the grantee therein named.” This deed expressly reserved unto the grantor the complete and unrestricted right to mine all of its coal under the said lot without being required to provide surface support for the same. And the grantee therein, by the express terms of the conveyance, took what was granted “subject to any claim or claims by, from, under or through any person or persons now or lately in the occupancy thereof, &c., and without any right to recover from the grantor any costs that might be incurred in any attempt to dispossess such occupants.” It being clear, under the evidence offered and received, that the present defendant had not been a party to either of the actions referred to; that no notice had ever been given to it by any one of the pendency of such actions or their trial; on what theory could the judgments in which these actions resulted become evidence to establish the present plaintiff’s averment of ownership as against the responsive answer of the defendant? The learned court below appears to have reached the conclusion that although the defendant was not a party, it — 55 — was privy to such actions, and therefore, under the general rule, becáme bound by the judgments entered therein. If the court was in error in this conclusion and should have rejected the records of these actions, then the plaintiffs case wholly failed for want of evidence to establish her ownership and her bill should have been dismissed. The general rule that judgments are conclusive between parties, and privies as well, is so thoroughly grounded in reason and so uniformly supported by decision that it may now be considered an axiom. We have then left the important question in the present case, who, in the law, is considered privy to a judgment in an action to which he was not a party? In Words & Phrases, Vol. YI, page 5606, we find “The term ‘privity’ denotes mutual or successive relationship to the same right of property.” (Many cases cited.) In the same volume, page 5608, it is said: “A privy to a judgment or decree is one whose succession to the rights of property thereby affected occurs after the institution of the suit or from a party thereto: Orthwein v. Thomas, 21 N. E. 430; 127 Ill. 554; 4 L. R. A. 434, &c . . . . . . Personal representatives, heirs, devisees, legatees, assignees, voluntary grantees, judgment creditors or purchasers from them with notice, are included within the term ‘privies’ as that word is used in the statement of the rule that a judgment is binding on parties and privies.” In an editor’s note to the case of Miller v. Ditlinger, 81 Kan. 9, reported in 26 L. R. A. (N. S.) 595, reviewing a large number of cases from many jurisdictions, we have this summary : “As a general rule the landlord will not be bound by a judgment in ejectment against the tenant in an action to which the landlord was not a party, at least if he had no notice of the suit. The reason for the rule is that the landlord does not claim through or under his tenant and therefore is not in that sense his privy.” Our own Supreme Court has followed this well nigh universal trend of decision in determining who was to — 56 — be considered privy to a judgment entered in an action to which he was no party and of which he had no notice. In Strayer v. Johnson, 110 Pa. 21, Mr. Justice Sterrett says: “Privies are those whose relationship to the same right of property is mutual or successive. In other words, privity denotes mutual or successive relationship to the right of property, title or estate...... The essential privity was not in the parties to the actions which determined the location of the Nelson survey, but in the right of property involved therein; and all parties subsequently coming into the title, no matter how, and relying on a right of property derived from either of the warrants and surveys, are visited with notice of the adjudication to which those surveys were subjected between the parties who were then the owners.” But the plaintiff in the present case can derive no aid from the rule as it is thus everywhere stated and defined. Had the plaintiff been able to show that this defendant claimed or held anything through or under Mary Y. Duffey, the unsuccessful party in the actions, then indeed the rule would have applied. But she must uphold that the exact converse of the rule as stated is also a part of the rule. In other words, that because her grantor was able to show a better title to something than one Mary Y. Duffey had, she may bind, as a party to the judgments obtained, every ancestor in title of Mary Y. Duffey. This, as we view it, is unsound in reason as well as in law. A flowing stream derives everything which makes it a flowing stream from the fountain whence it springs. Manifestly, if an attack be made on the fountain which results in its damage or destruction, the stream below along all of its course must be materially, if not vitally affected by such an attack. But clearly, the converse of the proposition cannot be maintained. The waters below the spring may be fouled, diverted, or otherwise affected, but this in nowise impairs or interferes with the steady flow from the fountain. ' We can find no warrant in any case decided in our — 57 — own State, nor in the many to which we have referred from other jurisdictions, for the conclusion that the defendant in the present case could properly be adjudged a privy to the judgments entered in the two actions of Duffey v. Duffey. That being true, the plaintiff failed to establish that she had any title to or ownership in the land that would support any interference by her in the mining operations of the defendant in the coal which had been owned by it or its predecessor for a half a century. Moreover it is difficult to perceive how, in the issue being tried, the deed from the defendant to Mary V. Duffey possessed any evidential value. As we have seen it purported to convey only “the surface or right of soil” to the locus in quo. Even if Ave assume that, as a result of the two actions of ejectment, Mary Duffey had established title in herself to this “surface or right of soil,” how could that fact support the plaintiff’s claim for damages resulting from the exercise, by the defendant, of the identical right it had expressly reserved unto itself in the deed referred to. Lest this case should be mistakenly regarded as a precedent upholding the jurisdiction of a court of equity under similar circumstances, we deem it proper to add that the learned judge below clearly pointed out the plaintiff had a complete and adequate remedy at law. The case immediately and necessarily resolved itself into the trial of a disputed title to land. But as the defendant, at no time raised any question as to the jurisdiction and submitted to a trial on the merits, the court properly declined to dismiss the bill on that ground. The decree of the court below is reversed and the bill is dismissed at the costs of the appellee.