Grubb's Appeal , 1879 Pa. LEXIS 231 ( 1879 )

Mr. Justice PaxSON

delivered the opinion of the- court,

The appellant denies the jurisdiction. As this point, if well taken, disposes of the present proceeding, we will consider it first.

The bill stripped of all unnecessary matter, is a proceeding to compel the appellant to pay for one-half the ore hauled from the Cornwall ore-banks to the Mount Hope Furnace. Whether he ought to pay for it depends upon the construction of the deed of 1845 of Clement B. Grubb and wife to Alfred Bates Grubb. These are both legal questions properly belonging to a court of law. If this were all, we would at once dismiss the bill for want of jurisdiction. But as some other matters have been introduced into it, evidently with the view of bringing the case within the cognisance of a court of equity, we will consider them briefly. They are first— That the claim of a full supply, instead of a moiety, is contrary to the agreement of purchase, to the construction of the deed, and to the continuous and uninterrupted usage thereunder, and that if the terms of the license are vague the deed should be reformed. In support of this averment there is the prayer, “that if the.words of the deed of 1845 do not clearly confine the defendant’s right to a half supply, the deed should be reformed.” It is sufficient to say in regard to this that the proper construction of the deed is not a subject of equity jurisdiction, and that as to its reformation, there is neither averment nor proof of fraud, accident or mistake.

The second averment is, “ That the wrong of taking all the ore is one continuous and recurring, would cause a multiplicity of suits, against which relief could be had in equity only.’,’ It was strongly urged that this averment gave the court jurisdiction under that provision of the Act of 16th June 1836, conferring equity powers upon the Courts of Common Pleas, which provides that such powers shall include “the prevention or restraint of the commission or continuance of acts contrary to law, and prejudicial to the interests of the community, or the rights of individuals.” It is not contended that the appellant is doing any act contrary to law or prejudicial to the community. Has he done anything prejudicial to the rights of the appellee which is sufficient to give a court of equity jurisdiction? The contention of the appellee is that the case comes within the same rule as waste, which may be restrained by injunction as well as by writ of estrepement, and of continuing trespasses, which equity will restrain to prevent multiplicity of suits; and Denny v. Brunson, 5 Casey 385, Scheetz’s Appeal, 11 Id. 88, and other cases were cited in support of this view. I have no' fault to find with the authorities cited, but their application is not manifest. Noi question of waste is raised by this record. Waste is spoil or destruction done or allowed to be done to houses, woods, lands or other corporeal hereditaments by the tenant thereof, to the prejudice of the heir, or of those in reversion or remainder. By the Act of 27th of March 1833, Pamph. L. 99, the provisions of' the second section of the Act of 2d April 1803, restraining waste, are extended to quarrying and mining. But it has never been held that a person who is not a tenant in possession, but possessing a right to dig ores, is guilty of committing waste when he takes out more ore than his contract or his rights call for. Nor does the case come within the rule of repeated trespasses for the reason that the appellant is not a trespasser. His right to dig ore at the Cornwall banks is not disputed. The question whether he has a right to a whole supply for his furnace or only a half is another matter, and has no bearing upon the question of trespass. If his right is limited to a half supply, and as to this we express no opinion, it becomes a mere question of accounting for the surplus. I am of opinion that the question of a half supply will be found to be full of practical difficulties when it comes to be established, if it ever shall be. For the present it is sufficient to say that the mere fact, if it exists, that the appellant has taken more ore than he was entitled to under the deed of 1845, does not make him a trespasser. Even if it did the equity jurisdiction of the ’court would not attach in the face of the appellant’s denial of the appellee’s right. A bill in equity is not a panacea. It was never intended, nor has it ever been used to settle disputed rights in trespass. Where the right is clear it will restrain the commission of repeated acts of trespass on the sole ground of preventing a multiplicity of suits.

There is the further prayer that the appellant be decreed to account to the proprietors of Cornwall for one-half the ore. The appellee is the only one of the proprietors of Cornwall who is a party to the bill. Even if they had been joined as plaintiffs, the account is a mere matter of charge for certain number of tons of ore, with no entries on the other side of the account. It was clearly the subject of an action at law, and the appropriate form of action is assumpsit.

These are substantially all the points that need to be discussed. There is a growing disposition on the part of the bar throughout the state to favor equity practice, culminating in the filing of bills in many instances where the jurisdiction is at least doubtful. We were compelled at the last term of the Western District to dismiss a bill of our own motion for this reason. Orders and decrees in equity where there is no jurisdiction, are simply coram non judice.

We are clear that this bill must be dismissed upon this ground. If any authority wei’e needed, it may be found in the North Penna. Railroad Company v. Snowden, 6 Wright 488, and Norris’s Appeal, 14 P. F. Smith 275. There are several other cases to the same point, but those cite_d are sufficient.

The decree is reversed and the bill dismissed for want of jurisdiction; the costs to be paid by the appellee.