Eastwick v. Saylor

85 Pa. 15, 1877 Pa. LEXIS 215

• Court: Supreme Court of Pennsylvania
• Decided: June 11, 1877
• Docket: No. 80
• Status: Published

Opinion

Mr. Justice Gordon

delivered the opinion of the court, October 1st 1877.

A party owning the freehold and entitled to the possession, having entered, may maintain trespass against the deforcer and recover for mesne profits in the same manner and with the same effect as though put into possession by process after recovery in ejectment. Let us suppose Saylor to have entered without suit and to have obtained the possession against the defendants, it is certain, in such case, with no other facts than those now before us, he could not maintain a joint action against the Green Mountain Coal Company, John, its lessee, and Andrew M. Eastwick; in other words, he could not charge Eastwick with damages resulting exclusively from the operations of John and the coal company, and with whom Eastwick was in no kind of privity. Again, let us suppose these parties defendant to have held under different and adverse titles, and that Saylor had brought suit and recovered against Eastwick alone — the title and possession of the coal company remaining undisturbed — it will, we presume, be conceded that he would not, in. that event, be responsible for profits derived from the land by the company, for here there is clearly no unity or concert of action between the parties. But how can it change the result that they are sued together and judgment and execution had againstliboth ? Each has the right to defend his own possession and test his own title; and if, whilst this is in process, one digs coal or cuts timber upon the premises, by no process of reasoning can the other be made liable for that which he did not encourage and could not prevent. It is urged, however, that by interfering in the ejectment and having his name put of record as co-defendant, Eastwiok hindered and delayed the plaintiff in the recovery of the possession, wrongfully withheld from him, and so made himself responsible for the profits in the meantime received by the others. But this proposition seems to us unsound for two reasons: 1. Eastwiok was admitted to defend by the consent of plaintiff, and it is doubtful whether, without such consent, he could have been so admitted, for it nowhere appears that there was any such privity of title or possession between him and the original defendants as would have entitled him to substitution as of right. Such being the case, the plaintiff cannot be heard to complain of the results of his own act. 2. It is not apparent how the matter was delayed by Eastwick’s interposition, or how a judgment against Cleaver, Malone and Kreigbaum (the original defendants) would have determined the right of possession against the Green Mountain Coal Company. If indeed this company was in privity with any one’s title it was with that of John Elliott, whose executors were substituted and who made defence. As, therefore, the plaintiff was obliged to proceed to trial and judgment against these, we cannot see that Eastwdck’s defence occasioned any delay; on the other hand, it had this advantage, that two adversary titles were disposed of by the one suit, and it is probable that for this very reason the plaintiff consented to his substitution. Be this as it may, it does not appear that Eastwick’s defence was intended to shield the coal company, or that it had that effect.

The action for mesne profits must be governed by the same rules as govern ordinary actions of trespass. The plaintiff having recovered his possession by ejectment or otherwise, that possession, by operation of law, is extended back to the first moment of deforcement ; hence all acts done upon the premises by the dcforcer are to be regarded in no other light than as ordinary intrusions on the plaintiff’s possession: 8 Bl. Com. 210. But ordinarily, in order to maintain a joint action of trespass against several defendants, some concert of action must be shown in the commission of the wrong complained of: Baird v. Yohn, 2 Casey 482. Now, were it shown that Eastwick’s defence was intended to protect the possession of the coal company, or that this defence had been extended beyond tbe necessary defence of bis own title, and that he thereby wittingly protected the trespasses complained of, he might well be treated as a confederate with John and the coal company; but, that not appearing, we cannot agree that his interference in the ejectment in a lawful manner, Avith the plaintiff’s consent, for the purpose of testing his OAvn title and trying his own right of possession, shall of itself have the effect to make him responsible for trespasses he did not aid, abet or encourage, and which he could not prevent. It MIoavs that the court beloAv erred in holding that as Andrew M. EastAvick united Avith the defendants in the ejectment to maintain the possession as against the title of the plaintiff, he thereby rendered himself jointly liable with the coal company and John for mesne profits.

The remaining exceptions are not sustained. Those which relate to the answers and instructions of the court as to the western boundary of the Miller tract, were fully disposed of in the ease of Malone v. Sallada, 12 Wright 419. In the disposition of that case, the Merrick Star survey was treated as a distinctly marked location of 1785, and as being knoAvn as such at the time of the trial; nevertheless, it was held that the surveyor who located the Miller tract could not have known the true situation of the Star tract, or he would not have called for it as an adjoiner of Evans, Brooks and Gilbert. The law governing settlement rights was properly laid down by the court below; the questions of amendment were also well settled. In like manner, the instructions with reference to the liability of the Green Mountain Coal Company, not only for the value of the coal taken from the property by its tenant, John, but also for the damage resulting from his manner of mining, are unexceptionable: King v. Baker, 1 Casey 186. The declarations of John as to the value of the coal were properly admitted as having some bearing as to its value in place. That part of the evidence, hoAvever, Avhich related to the price at which he, John, had agreed to sell his lease, had so remote a bearing upon the subject in controversy that it might well have been excluded.

The judgment is reversed, and a new venire is awarded as to Andrew M. Eastwick, and affirmed as to Samuel John and the Green Mountain Coal Company.