Tillmes v. Marsh , 1871 Pa. LEXIS 141 ( 1871 )

The opinion of the court -was delivered,

by Sharswood, J.

The case presented by the plaintiff’s bill, • divested of immaterial circumstances, is this: William Huckel, by purchase, became the owner of two adjoining lots, which had been originally conveyed by two separate deeds to a person from whom he deduced title — one as of the width of 20 feet and the other of 16 feet.. Two houses had been built on these two lots, a three-feet wide alley being laid out between them, so as to leave about 16} feet upon each side of it. One of the houses was built entirely over the alley-way, and the party-wall between the two houses was accordingly on one side of the alley. The house thus built over the alley was erected on the smaller of the two lots. William Huckel devised the one messuage and lot and the house thereon erected to his son Jacob, under whom the plaintiff claims, and the other lot, messuage and tenement, being that built over the alley-way, to his son Robert, under whom the defendants claim. Both these devises were “ with the free use and privilege of the three-feet wide alley.” The plaintiff insists that the title to the soil over which the alley is laid out is in him according to the original lines of the lots, confirmed, as he alleges, by a subsequent deed from Robert to Jacob. He sets out several acts of defendants interfering with his right, under a claim of a fee simple in the said alley-way to the depth of 34 feet 8 inches, and prays for relief that defendants be enjoined from keeping the doorway in thé first story, the window in the second story and the opening in that part of the western wall overhanging the alley; that they be enjoined from using the wall for the support of their joists and house, and that they cease overhanging said alley with the upper stories of said house; and for a decree that the boundary line between the said houses shall be run so as to throw the whole soil of the said alley into the plaintiff’s lot, and be so continued to the whole depth of said lots.

It certainly does not require any elaboration to prove that this is a mere ejectment bill, and might have been demurred to as such: 2 Danl. Chan. Prac. 29. In Loker v. Rolle, 3 Ves. 4, a bill in many respects similar to this, Lord Rosslyn said: “Upon the face of the bill it is quite clear the plaintiff may draw a declaration in ejectment. The bill states the title, and that by some means or other the same persons are in possession of all the lands, and have confounded the boundaries. * * * If he had filed a bill' for discovery only, he must have prayed for the discovery; but it goes on to pray relief; that is merely an ejectment.” It will be seen in this citation that an allegation that the defendants had confused the boundaries did not help the plaintiff’s case. Indeed, nothing is better settled, than-that to give chancery jurisdiction upon a question of disputed'boundary, some equity must be superinduced by the acts of the parties: Wake v. Conyers, 1 Eden 331; 2 Lead. Cas. in Eq. 348. It is urged, however, that the Acts of Assembly of April 15th 1858, Pamph. L. 267, and April 5th 1859, Pamph. L. 359, confer upon the Supreme Court in and for the Eastern District of .Pennsylvania, and the Court of Common Pleas of Philadelphia respectively, “ All and singular the jurisdiction and powers .of a court of chancery in all cases of disputed boundaries between adjoining and. neighboring lands within the said county.” The proper construction of these acts was considered in Norris’s Appeal, 14 P. F. Smith 275, and it was there held that they conferred upon the courts therein named only jurisdiction in the determination of equitable,-not of legal, rights. Indeed, the acts, by their very language, did not purport to vest more than the recognised -jurisdiction of a court of chancery in the premises. It had been solemnly settled by this court in The North Penna. Coal Co. v. Snowden, 6 Wright 488, that an Act of Assembly which should attempt to transfer any part of the jurisdiction of common-law courts to a court proceeding according to the course of a court of chancery, and of course without a jury, would be beyond the power .of the legislature. The language of the opinion of the court, by Mr. Justice Strong, is very emphatic: “ Trial according to the course of a-court of chancery, is trial by a single judge. But if there is any right to which, more than all others, the people of Pennsylvania have clung with unrelaxing grasp, it is that of trial by jury. They brought it with them from the land of their fathers. In every constitution which has been adopted they have taken care to secure it against infringement, and put it beyond the power of the executive, the legislature or the courts, to take it away from any individual.” He proceeds to argue that the Constitution, Art: V., sect. 6, “ cannot mean that the legislature may confer upon the Supreme Court and the Courts of Common Pleas the' power of trying, according to the course of chancery, any question which has always been triable according to the course of law by a jury. If it can, then an ejectment founded solely on legal title, an action of debt on bond,, or a replevin, or an action of trespass, may be sent into chancery, all contested facts in it be decided by the judge, and the intervention of a jury be unknown.” He adds: “No power in our government-can take from the litigant the right to have his case tried by a jury, substantially in the mode and with the same effect as that which belonged to jury trials in similar cases, when the Constitution of 1776.was adopted.”

In this case complainant’s bill sets up nothing but a legal right, invaded by the defendants, and for which the remedy by an action of ejectment is adequate and complete-. The bill admits that the possession of the defendants extends over the alley. That is-a trespass on plaintiff’s close, if the title to the soil is in him. Oujus est solum ejus est usque ad ccelum. Ejectment will lie to recover possession of the soil, subject either to a public or private easement over it: Goodtitle v. Alker, 1 Barb. 133; Cooper v. Smith, 9 S, & R. 26. “ It is no bar to a recovery,” says Mr. Justice Duncan, “ that'another possesses a right of way or other easement, for the owner of the soil may maintain an ejectment for land over which a highway is laid out.” There would be no difficulty here, the defendants being in the exclusive occupation, both under and above the alley, either in the sheriff’s returning them as in possession on the summons in ejectment, or in giving possession to the plaintiff, if he should recover a verdict and judgment, upon the habere facias, subject to the right of way acknowledged to be in the defendants. . We are of the opinion that the court has no jurisdiction of this bill.

Decree reversed. And now it is ordered and decreed that the bill be dismissed at the costs of the complainant and appellee.