McIntire v. Westmoreland Coal Co. , 20 W.N.C. 508 ( 1888 )

Opinion,

Me. Justice Paxson:

This was a joint action on the case brought in the court below by Samuel P. Mclntire and Jane Mclntire against the Westmoreland Coal Company. The plaintiffs were the owners •of a piece of land, of about half an acre, in Westmoreland county, upon which were erected a hotel and other buildings. The surface of said land was underlaid with a valuable vein of coal. It is alleged that the defendant company owned all the land surrounding the lot of the plaintiffs, and, in the course of its mining operations, had mined and taken away all the coal beneath the surface; that they had so negligently mined the same as to leave insufficient props, by means of which the .surface had cracked in many places, and that by reason thereof a valuable well of water on the premises had been destroyed. It appeared that Jane Mclntire, one of the plaintiffs, had a life estate in said premises, and that Samuel P. Mclntire, the other plaintiff, was the remainderman. As before stated, the action was joint, and they counted for the entire damages done to the property by reason of the alleged unlawful acts of the defendant company.

The narr. as originally filed was in case. An amended narr. was subsequently filed containing several counts in trespass vi et armis. Subsequently a motion was made to quash the writ and narr. We do not know the precise ground upon which this motion was made, as we are not furnished with a copy of it. It was treated in the argument and the paper-books, however, as in the nature of a special demurrer, and the ground of it a misjoinder of parties. The court below quashed both writ and narr. and turned the plaintiffs out of court.

There can be no doubt that the life-tenant might have brought her action of trespass for the disturbance of her possession, and the remainderman might have brought an action on the case for the injury to the reversion. That is not the question, however. We are to consider whether they had the right to join, and in one action sue for the injuries to the possession and the remainder. We may observe here that we are unable to see how such joinder could possibly injure the defendant. A recovery in such suit would be a bar to any subsequent action by either for the same cause. Aside from this, the defendant Avill have to incur the risk of having to pay more money with two actions than Avith one, besides additional costs. The only inconvenience in the case, Avhich we can see, would be the difficulty of apportioning the damages, in case of a recovery, between the life-tenant and the remainderman. But this is a difficulty -with which the defendant has no concern. He would be protected in any event.

The laAv abhors circuity and multiplicity of actions. In the somewhat analogous case of the assessment of damages for land taken by a railroad company by virtue of the right of eminent domain, the law permits all the damages to be assessed upon one petition, Avhether such damages be sustained by tenant for years, tenant for life, or remainderman. It is true this is a statutory proceeding, and we are not embarrassed in such cases by the refined distinctions of the common law in regard to pleading and forms of actions.

If there is a single count in the narr. that can be sustained the writ should not have been quashed. It is not enough to show that some of the counts are in case, while the counts in the amended narr. sound in trespass. If it be true, as assumed by the court below, that the mine was unopened Avhen the life-estate commenced, and that the life-tenant had therefore no interest in it, the fact remains that she had an interest in the surface and the well of water, and to the extent these were injured, she had a right of action. That action might have been trespass, in which she would be entitled to recover for the actual injury, and also damages for the force employed according to the circumstances; or she might have waived the force and sued in case, when her damages would be limited to the actual injury. A recovery in either form of action Avould be a bar to an action for the same cause in another form; as, when the trespass is waived and assumpsit or trover is brought, either would bar an action of trespass. So trover or replevin may be concurrent remedies, and one action would bar the other: Van Dresor v. King, 34 Pa. 201, and cases there cited.

The acts alleged in the narr. were an injury both to the possession and the freehold. Moreover the injury was joint; a single act which affected both the plaintiffs, though in different degree. Under the circumstances, S. P. Mclntire being out of possession, and the injury affecting both, they were compelled in bringing a joint action, to sue in case. This does the defendant no injury. It does not in any way interfere with the evidence they may have by way of defence; nor does it subject them to any risk of a second or other action for the same cause.

We are of opinion that it was error to quash the writ and declaration. The writ is entitled to stand, and the narr. can be moulded to suit the exigencies of the case.

Judgment reversed, and a procedendo awarded.