Gotshall v. J. Langdon & Co. , 16 Pa. Super. 158 ( 1901 )

Opinion by

Orlady, J.,

The plaintiff brought this action of trespass to recover for divers quantities of coal mined and dug from her land. The time of the alleged trespass is stated as follows: “ That in February, A. D. 1894, or thereabouts, the precise time or date cannot now be accurately given as the plaintiff had no means of knowing, and all information thereof was concealed from her by the said corporation, 'the said defendant, ” and she avers' “ that for many years prior to the grievance she was, and still is, the owner in fee simple of all that certain lot or piece of ground, ” etc.

The defendants pleaded not guilty; and on the trial (October 11,1899), after evidence had been adduced which showed a trespass as far back as 1890, the defendant for further plea, without dissent, added that of actio non accrevit infra sex annos. The plaintiff was permitted to prove, under objection and exception, that she had acquired an equitable title to the premises in 1885 by a parol contract, pursuant to which she had gone into possession, made improvements, continued in notorious possession, paid all of the purchase money, and received a deed in fee simple therefor in 1891, “for the purpose of showing an equitable title ha the plaintiff at the time some of the trespasses, complained of in the declaration, were committed.” The offer and objections thereto are covered by the first assignment of error. The cause of action in this case was for the coal dug from under the plaintiff’s lot. She had been in possession of the premises during the whole time covered by the trespass. Her inceptive title, dated in 1885, was followed by her continuous possession and payment of the purchase money. It is true that the legal title to the lot remained in Lewis Yerger until September 5,1891, the date of his deed to her, and the quantity of her estate was not a perfected fee simple. Under the contract with her father she had become the purchaser in fee of the property, but had the equitable title only, although she was to all intents and purposes the owner of the property. Being the equitable owner in fee, and as against this trespasser, she may be said to have been the entire, unconditional, and sole owner. Such would be held to be the law in determining the extent of her estate under an insurance policy which exempted the company from liability “ if the interests of the assured be other than the entire, unconditional, and sole ownership:” Imp. F. Ins. Co. v. Dunham, 117 Pa. 460; Collins v. London Assurance Corporation, 165 Pa. 298. The holder of such a title, particularly where the possession is not disputed, may maintain an action of trespass against a wrongdoer: Ward v. Taylor, 1 Pa. 238 ; Baker v. King, 18 Pa. 138; Miller v. Zufall, 113 Pa. 317; Arnold v. Pfoutz, 117 Pa. 103; Irwin v. Patchen, 164 Pa. 51.

Amending the record by adding to the name of the present plaintiff that of Lewis Yerger, as a coplaintiff, averts all danger of injury to the defendant. As the case was tried on its merits, and the evidence affected by the condition of the record was received on the trial, we see no reason for not treating the record as so amended. It has been done in many cases in the Supreme Court in order to prevent injustice and facilitate the administration of law: Commonwealth v. McWilliams, 11 Pa. 61; Erie City Iron Works v. Barber, 118 Pa. 19; Shaffer v. Eichert, 132 Pa. 285; Chapin v. Cambria Iron Co., 145 Pa. 478; Weaver v. Iselin, 161 Pa. 386. Under the evidence it was not possible for her to have knowledge of the defendant’s work under the ground. Had the trespass been on the surface she would have been bound to notice it. In Lewey v. Frick Coke Company, 166 Pa. 536, it was held as follows : “ To require an owner under such circumstances to take notice of a trespass upon his underlying coal at the time it takes place, is to require an impossibility; and to hold that the statute begins to run at the date of the trespass is in most cases to take away the remedy of the injured party before he can know that an injury has been done him.”

Tbe statement does not give a definite date to fix.tbe commission of tbe trespass, and specifically urges that the precise time or date cannot be accurately given, as she had no means of knowing, all information thereof being concealed from her by the defendant. Therefore the statute runs against such an injury, as is clearly proved in this case, from the time of actual discovery, or the time when discovery was reasonably possible: Lewey v. Frick Coke Company, supra.

The assignments of error are overruled and the judgment is affirmed.