The opinion of the Court was delivered by
Rogers, J.
—This was an action of trover for twelve tons of iron ore. The ten acres and forty-three perches from which the ore was taken, were part of a larger tract of two hundred and fifty acres, which was conveyed tcf'Jafeob Heistand, Sen. by David Forree and wife, by their deed of the 2d of November 1791, being part of a still larger tract of two hundred and eighty-two acres, then held by David Forree under the last will and testament of his father John Forree, who held, under a patent dated the 21st of December 1749, from the proprietors.
Jacob Heistand, Sen., being so seised, on the 8th of April 1816, conveyed eleven acres of the above described property to Jacob Heistand, Jun., who, on the 27th of September 1830, entered into articles of agreement with Guilford and Wright, wherein, for the consideration therein expressed, the said Jacob Heistand granted and assigned to them the sole and exclusive right and privilege to dig, take and carry away all the iron ore, of every kind whatever, to be found upon a certain tract of land belonging to the said Jacob Heistand, containing between ten and eleven acres, &c., with ingress,, egress, &c. By this agreement, so far as regards the right of using the land for the purposes therein stated, the plaintiffs have acquired all the interest of Jacob Heistand, with all the powers be might have had in relation to the same previous to the agreement. Now it is clear, that Jacob Heistand, as the owner of the fee simple, and his assignees, have the undoubted right Jo raise ore on the premises, without molestation or hindrance from any one; and more especially from him who stands in the relation of a wrong doer or trespasser. The title to land cannot be tried in an action of trover. 3 Serg. <£• Rawle 509 ; 10 Serg. fy Rawle 119. But it is said that ore when dug and raised is a chattel; and that it is sufficient to defeat the plaintiffs’ action, to show either that the title is in the defendants or in some third person. 11 Johns. Rep. 529; 9 Cowen 52; 1 Wend. 466. It is not disputed, as a general principle, that in an action of trover a defendant may show title in a third person. But in the case at bar this principle does not apply, because Jacob Heistand [242]*242was in the actual possession of the land until the 29th. of September 1830, when he sold and conveyed to the plaintiff, for a valuable consideration, the right, as above described, to enter and take all the iron ore in the ten acres and forty-three perches. The contract was executed by the parties; by the plaintiffs, in pursuance of the grant, entering on the land and expending their money and labour in digging and raising the ore. The defendants, finding the ore dug and at the pit’s mouth, entered, took and converted the same to their own use. For this injury the action of trover is an appropriate remedin 3 Serg. & Rawle 509; Brown v. Caldwell, 10 Serg. & Rawle 114.
If, as is alleged, the subsequent grant to Guilford and Wright was a violation of the previous grant to William Bennet, the question may be tried in an action on the case ; or, perhaps, William Bennet and those who claim under him, have acquired by the contract such an interest in the soil as may enable them to sustain an ejectment for the recovery of the possession. Under, however, the circumstances of the case, William Bennet, never having been in possession and not having-done any thing in pursuance of the contract, does not become the owner of the ore when raised, which is a necessary ingredient in the positions of the defendants’ counsel, that title in him is sufficient to defeat the action, although the defendants are wrong doers or trespassers.
But the form of the action is of but little consequence, as we understand it to be the wish of the parties to have the right to the mine settled. It is not the intention of the court to express any opinion on (he rights of William Bennet or his heirs, as they are not parties to the special verdict; nor in the view we have taken of the cause is this necessary. We give no opinion on the point of nonuser, so much pressed by the counsel for the plaintiff, but shall take it for granted that Bennet’s right was not impaired by time, and that it was a subsisting interest up to the sheriff’s sale, and continued so until the commencement of this suit and trial of the cause. The case, so far as Grubb’s heirs are concerned, was this: on the 6th of March 1769, David Forree and wife, by their deed of that date, conveyed to William Bennet, an iron master, twenty acres in fee, being partof the tract of land held by the said David Forree, by a devise from his father John Forree deceased, as before mentioned. This deed, inter alia, recites, that in consideration of 107 pounds, the said David Forree and wife granted, bargained, sold, &c. to William Bennet, his heirs and assigns, all the following described tract of land, beginning, &c., containing twenty acres and the allowance, to have and to hold the aforesaid tract of twenty acres of land and premises granted, mentioned or intended so to be, with the appurtenances, unto the aforesaid William Bennet, his heirs and assigns, &c. Then follows the covenant or grant now under consideration, and which is particularly set forth in the special verdict, and which contains the consideration for which the grant was made, viz. 6 pence a ton for every ton taken from the premises of two hundred and eighty-[243]*243two acres. This deed was made in pursuance of a previous article of agreement made between these parties.
James Smith, Esq. obtained judgment against William Bennet to the November term 1770, for 2000 pounds. Several executions were issued, and among others an alias venditioni exponas, to the August term 1771, on which the sheriff returned that he had taken in execution and sold a certain island, &c. to David Grier, for 160 pounds, and also that he sold the ore bank taken in execution, containing twenty acres, with its appurtenances, to George Eichelberger, for the sum of 60 pounds, lawful money, &c.
The fieri facias, by virtue of which the sheriff made his levy, is lost. But in the recital of the sheriff’s deed to Eichelberger, it is said, among other things in the return, that he seised in execution one ore bank containing about twenty acres, &c. But in the inquisition it was found, as appears by the same recital, that the rents, issues and profits of the island, &c. and the said ore bank, containing about twenty acres, with the appurtenances, were not of a clear yearly value, &c.
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The opinion of the Court was delivered by
Rogers, J.
—This was an action of trover for twelve tons of iron ore. The ten acres and forty-three perches from which the ore was taken, were part of a larger tract of two hundred and fifty acres, which was conveyed tcf'Jafeob Heistand, Sen. by David Forree and wife, by their deed of the 2d of November 1791, being part of a still larger tract of two hundred and eighty-two acres, then held by David Forree under the last will and testament of his father John Forree, who held, under a patent dated the 21st of December 1749, from the proprietors.
Jacob Heistand, Sen., being so seised, on the 8th of April 1816, conveyed eleven acres of the above described property to Jacob Heistand, Jun., who, on the 27th of September 1830, entered into articles of agreement with Guilford and Wright, wherein, for the consideration therein expressed, the said Jacob Heistand granted and assigned to them the sole and exclusive right and privilege to dig, take and carry away all the iron ore, of every kind whatever, to be found upon a certain tract of land belonging to the said Jacob Heistand, containing between ten and eleven acres, &c., with ingress,, egress, &c. By this agreement, so far as regards the right of using the land for the purposes therein stated, the plaintiffs have acquired all the interest of Jacob Heistand, with all the powers be might have had in relation to the same previous to the agreement. Now it is clear, that Jacob Heistand, as the owner of the fee simple, and his assignees, have the undoubted right Jo raise ore on the premises, without molestation or hindrance from any one; and more especially from him who stands in the relation of a wrong doer or trespasser. The title to land cannot be tried in an action of trover. 3 Serg. <£• Rawle 509 ; 10 Serg. fy Rawle 119. But it is said that ore when dug and raised is a chattel; and that it is sufficient to defeat the plaintiffs’ action, to show either that the title is in the defendants or in some third person. 11 Johns. Rep. 529; 9 Cowen 52; 1 Wend. 466. It is not disputed, as a general principle, that in an action of trover a defendant may show title in a third person. But in the case at bar this principle does not apply, because Jacob Heistand [242]*242was in the actual possession of the land until the 29th. of September 1830, when he sold and conveyed to the plaintiff, for a valuable consideration, the right, as above described, to enter and take all the iron ore in the ten acres and forty-three perches. The contract was executed by the parties; by the plaintiffs, in pursuance of the grant, entering on the land and expending their money and labour in digging and raising the ore. The defendants, finding the ore dug and at the pit’s mouth, entered, took and converted the same to their own use. For this injury the action of trover is an appropriate remedin 3 Serg. & Rawle 509; Brown v. Caldwell, 10 Serg. & Rawle 114.
If, as is alleged, the subsequent grant to Guilford and Wright was a violation of the previous grant to William Bennet, the question may be tried in an action on the case ; or, perhaps, William Bennet and those who claim under him, have acquired by the contract such an interest in the soil as may enable them to sustain an ejectment for the recovery of the possession. Under, however, the circumstances of the case, William Bennet, never having been in possession and not having-done any thing in pursuance of the contract, does not become the owner of the ore when raised, which is a necessary ingredient in the positions of the defendants’ counsel, that title in him is sufficient to defeat the action, although the defendants are wrong doers or trespassers.
But the form of the action is of but little consequence, as we understand it to be the wish of the parties to have the right to the mine settled. It is not the intention of the court to express any opinion on (he rights of William Bennet or his heirs, as they are not parties to the special verdict; nor in the view we have taken of the cause is this necessary. We give no opinion on the point of nonuser, so much pressed by the counsel for the plaintiff, but shall take it for granted that Bennet’s right was not impaired by time, and that it was a subsisting interest up to the sheriff’s sale, and continued so until the commencement of this suit and trial of the cause. The case, so far as Grubb’s heirs are concerned, was this: on the 6th of March 1769, David Forree and wife, by their deed of that date, conveyed to William Bennet, an iron master, twenty acres in fee, being partof the tract of land held by the said David Forree, by a devise from his father John Forree deceased, as before mentioned. This deed, inter alia, recites, that in consideration of 107 pounds, the said David Forree and wife granted, bargained, sold, &c. to William Bennet, his heirs and assigns, all the following described tract of land, beginning, &c., containing twenty acres and the allowance, to have and to hold the aforesaid tract of twenty acres of land and premises granted, mentioned or intended so to be, with the appurtenances, unto the aforesaid William Bennet, his heirs and assigns, &c. Then follows the covenant or grant now under consideration, and which is particularly set forth in the special verdict, and which contains the consideration for which the grant was made, viz. 6 pence a ton for every ton taken from the premises of two hundred and eighty-[243]*243two acres. This deed was made in pursuance of a previous article of agreement made between these parties.
James Smith, Esq. obtained judgment against William Bennet to the November term 1770, for 2000 pounds. Several executions were issued, and among others an alias venditioni exponas, to the August term 1771, on which the sheriff returned that he had taken in execution and sold a certain island, &c. to David Grier, for 160 pounds, and also that he sold the ore bank taken in execution, containing twenty acres, with its appurtenances, to George Eichelberger, for the sum of 60 pounds, lawful money, &c.
The fieri facias, by virtue of which the sheriff made his levy, is lost. But in the recital of the sheriff’s deed to Eichelberger, it is said, among other things in the return, that he seised in execution one ore bank containing about twenty acres, &c. But in the inquisition it was found, as appears by the same recital, that the rents, issues and profits of the island, &c. and the said ore bank, containing about twenty acres, with the appurtenances, were not of a clear yearly value, &c. In the deed, the sheriff grants, bargains, sells and delivers to George Eichelberger, his heirs and assigns, all that, the said ore bank, containing twenty acres, and the usual allowance, be the same more or less (it being the same ore bank which William Ben-net purchased from a certain David Forree), together with all and singular the houses, outhouses, edifices and buildings thereon erected and being ; and also all and singular the lights, easements and ap-/ purtenances to the same ore bank belonging or in anywise appertaining, and the reversions and remainders thereof; and also all the estate, right, title, interest,benefit, claim and demand whatsoever, of him the said William Bennet, both at law and in equity or otherwise, howsoever, of, in, to and out of the same premises and every part thereof; to have and to hold the said ore bank, with its appurtenances, hereditaments and premises hereby granted and released, or mentioned so to be, with their rights, members and appurtenances, unto the said George Eichelberger, his heirs and assigns, &c. By several intermediate conveyances, the title of George Eichelberger, the sheriff’s vendee, to the twenty acres and its appurtenances, became vested in Henry B. Grubb, and the defendants claim as his heirs and legal representatives. The defendants contend, that Henry B. Grubb, who derives title from William Bennet through the sheriff’s vendee, has a right to all the iron ore to be found on the two hundred and eighty-two acres; that Forree’s deed to William Bennet contains a grant to the latter, his heirs and assigns, of the privilege of digging, taking and carrying away all such iron ore, from time to time, and at all times, with the single condition of paying 6 pence a ton to the grantor, his Heirs and assigns; that by virtue of the judgment, executions, sale, sheriff’s deed, and the several conveyances referred to in the special verdict, this privilege became vested in Henry B. Grubb, bis heirs and assigns; and that consequently, David Forree having conveyed away the right to all the iron ore in [244]*244the said two hundred and eighty-two acres, Jacob Heistand, Jun., who afterwards purchased the eleven acres, part of the two hundred and eighty-two acres, had no authority to grant the same privilege to Guilford and Wright.
It is unnecessary to examine the intermediate conveyances from Eichelberger to Grubb. Grubb has the same right that Eichelberger acquired at the sheriff’s sale, and it is obvious, that whatever words may be used in these conveyances, they cannot enlarge the title vested in the sheriff’s vendees. And this makes it requisite to ascertain the extent of this right. It is contended that the privilege of taking ore, as it existed under William Bennet, is passed to Eichelberger, by the sheriff, as an easement or appurtenance to the twenty acres. Before examining this question, I must remark, that in case of a variance between the levy and the subsequent proceedings, (which may have been the case here, although it does not distinctly appear) the levy must govern. Although the power of the sheriff to dispose of real estate is founded on the levy, he can neither inquire by inquest nor extend nor sell any thing else. But the court do not think proper to rest the cause on this point. I shall proceed to examine the question, whether the privilege or right in controversy is appendant or appurtenant to twenty acres; for if so, it must be admitted that the words in the sheriff’s deed are sufficiently comprehensive to pass the interest. About the general principles of this branch of the law, there can be no difficulty. To make a thing appendant or appurtenant, it must agree in quality and nature to the thing whereunto it is appendant or appurtenant; as a thing corporeal cannot properly be appendant to a thing incorporeal, nor a thing incorporeal to a thing corporeal. But things incorporeal which lie in grant, as advowsons, commons and the like, may be appendant to things corporeal, as a manor, house or land; or things corporeal to things incorporeal, as lands to an office. But yet, as has been said, they must agree in nature and quality. Co. Lilt. 121, b. And although lands cannot in general be appurtenant to land, yet the parties may, by express words of intention, or by their conduct, as using the one as parcel of the other, make the one appendant or appurtenant to the other.
Thus, although, by the grant of a messuage cum terris pertinentiis, land occupied continually with the house passes, though land is not properly appurtenant to a house; yet it has been ruled, that by the grant of land cum pertinentiis, another house or land does not pass, unless it be found to be parcel. 4 Com. Dig., Grant, 314; Plowd. 170 ; 1 Lev. 131; 12 Co. Litt. 5; 1 Com. Dig. 530, tit. Appurtenances; 3 Saund. Rep. 401, note 2; 1 Rob. on Wills 400; 3 Bac. Abr., tit. Grant, 397; 1 Serg. & Rawle 169; 5 Serg. & Rawle 107; 4 Yeates 146; 7 Mass. Rep. 6; 6 Man. Rep. 332; 17 Mass. Rep. 443 ; 3 Rawle 271; 1 Johns. Cha. 284.
In the case at bar, the right was never exercised by William Ben-net, nor was the privilege of raising ore ever enjoyed by him or any [245]*245other person, as an appurtenance to the twenty acres; it cannot therefore, on that ground, be considered as parcel thereof.
Nor can it pass as an incident to the twenty acres, as a thing appepdant or appurtenant may sometimes pass, without saying cum pertinentiis; Co. Litt. 307; 5 Serg. & Rawle 107; 3 Rawle 271; for however convenient it might be to own both, yet the right to the one is by no means necessary to the enjoyment of the other. It is' said that it was the object of William Bennet to obtain a monopoly of the iron ore, for the supply of a furnace of which he was the owner at the mouth of the Codorus cieek. And if this be so, the object is attained by the ownership of both; and the argument would rather tend to show that the twenty acres and the right in question were appurtenances to the furnace. It is a practice by no means uncommon for the owners of iron works to purchase land in , fee simple, and wood-leave on lands adjoining. Now it never has I been thought that the privilege in the one case was appurtenant to the I right to the other, and that a conveyance of the one, either with or j without the word appurtenances, carried with it the right to the I other; although the conveyance of the iron works, when it had been I held as parcel, might, under particular circumstances, have that I effect. But although these are the general rules, yet these rules, like all others, are subject to exceptions, arising from the clear, manifest intention of the parties; and this makes it necessary to examine the contract of the 19th of September 1768, and the deed of the 6th of March 1769, from David Forree to William Bennet. This is the foundation of the defendants’ title; and unless it is made an appurtenance by these instruments, the defendants have no title. It appears that at the time this contract was made, William Bennet was the owner of a furnace at the mouth of the Codorus creek. His jntention, thereibrel_jf,.as .to.,,.obtam_an^adequate, supply.of iron .ore.,, for the rise of liis wprks; and this objectTie attains in the usual way, by tb e agre é men t o Fc on tract of the 19th of September 1768. The memorandum of the agreement, after particularly describing the twenty acres, the price agreed to be given for the same, proceeds to say: “and the said David Forree hath further agreed to and with the said William Bennet, to give him and his heirs privilege to dig ore on his other land, for the payment of 6 pence for every ton, if he hath occasion.” In pursuance of this agreement, David Forree made a deed to William Bennet, of the 6th of March 1763, In this deed he conveys to him, for the consideration of 147 pounds, in fee, a title to twenty acres and its appurtenances; and then follow these words: “and the aforesaid David Forree, for himself, his heirs, executors and administrators, doth covenant, promise, grant and agree, to and with the said William Bennet, his heirs and assigns, that he the said William Bennet, his heirs and assigns, shall and may from time to time, and at all times hereafter, dig, take and carry away all iron ore to be found within the bounds of the said David Forree’s tract of land, containing two hundred and eighty-two acres, [246]*246provided, the said William Bennet, his heirs and assigns, pay to the said David Forree, his heirs and assigns, the sum of 6 pence Pennsylvania currency per ton, for every ton taken from the premises of ttvo hundred and eighty-two acres aforesaid.”
The deed is a consummation of this contract, and it is, in some respects, more comprehensive than the article. It is a grant of twenty acres of land in fee simple, and also a grant, of an incorporeal hereditament, for a distinct and diffeient consideration, in the remaining part of the tract of two hundred and eighty-two acres. The right to raise ore is an incorporeal hereditament, granted for a valuable consideration, and is not, as has been contended, a license revocable at the will of the parties. The grantee, his heirs and assigns, have a right to enter, on a payment of the stipulated sum per ton, from time to time, and at all times hereafter. It is an easement, an incumbrance on the land; and, like a mortgage or judgment, the land passes into the hands of an alienee of the grantor, subject to the lien or incumbrance. There is a sufficient consideration for the contract, and I cannot agree with the plaintiffs’ counsel, that an alienee of the grantor can be in any better situation than the grantor. It is part of his title. But although these positions are conceded to the defendants’ counsel, yet I am at a loss to see any clear intention to make the one appurtenant to the other. It would be a strained! presumption to infer this intention from the fact that they are included in the same deed, or from the warranty in the deed, which is onlyt necessary, and which, properly construed, only embraces the con- i veyance in fee simple of the twenty acres; nor can this be gathered 1 from the use of the word appurtenances in connexion with the I twenty acres, which is but the usual formulary in the conveyance of real estate. <
From a mature consideration of the article of agreement and the deed, we are clearly of the opinion that the right and privilege to take iron ore in the two hundred and eigty-two acres, was a distinct and independent covenant, having no relation to the conveyance of the twenty acres. It certainly is not expressly said to be appurtenant to the twenty acres. Although there might be, under particular circumstances, something in the argument that it was appurtenant to the furnace, there is no reason for holding that it is appurtenant to the twenty acres. This intention cannot, by any natural construction, be inferred.
Judgment affirmed.