Booher v. Browning

32 A. 85, 169 Pa. 18, 1895 Pa. LEXIS 1063

• Court: Supreme Court of Pennsylvania
• Decided: May 30, 1895
• Docket: Appeal, No. 140
• Status: Published

Opinion

Opinion by

Mr. Justice Fell,

Under a grant to search for, dig and carry away minerals and a grant of a right of way the defendants constructed on the plaintiffs’ land a narrow gauge railroad which is used only for carrying ores and extends from the mines to another road connected with a furnace. The way is over rough land, unfit for cultivation and of but little value, and was granted in connection with the mining rights and the right to deposit on the land minerals, ores, dirt and other materials used for mining purposes to the extent to which the defendants or their assigns might desire. The construction of the road does not interfere with any present or prospective use of the land, and the injury if any is to the bare legal right. The plaintiffs made no objection to the construction of the road during the progress of the work, nor until more than a year after its completion. Three years after it was finished an action of trespass was brought, and subsequently this bill was filed to restrain the defendants from using the road and to require its removal. The defendants deny that they have committed any trespass. They aver that the title and possession of the land are in them; that the road was built under a claim of right recognized at the time by the acquiescence of the plaintiffs; that the market value of the land covered by the right of way is merely nominal ; that the injury to the plaintiffs, if any, is trifling, and that an action at law is pending for the same alleged trespass.

The bill seeks to establish a legal right. Whether the terms of the grant have been exceeded depends upon the construction of the deed from the plaintiffs’ predecessors in title to the defendants. This is a purely legal question, and one upon which the whole case rests. Whether the trespass complained of has been committed depends upon the legal rights of the parties. These rights should be determined at law. When so determined an equity based upon them may if necessary be asserted, and adequate protection in their enjoyment be secured. It is said in the opinion in Grubb’s Appeal, 90 Pa. 228, that a bill in equity “ was never intended, nor has it ever been used, to settle disputed, rights in trespass. When the right is clear it will restrain the commission of repeated acts of trespass on the sole ground of preventing a multiplicity of suits.”

The case was decided in the common pleas upon this ground alone, and it is unnecessary now to consider whether the way selected by the defendants and the manner in which it is used are authorized by the grant.

The decree is affirmed.