Parks v. Penna. Clay Co. , 60 Pa. Super. 574 ( 1915 )

Opinion by

Kepi-iart, J.,

Plaintiff brought this action to recover mesne profits for the use and occupation of certain land recovered in an action of ejectment. Trespass for mesne profits is an emanation from the action of ejectment. When the plaintiff in ejectment has been placed in possession of his land and institutes his action for mesne profits, only such lands are affected by such action as were embraced in the action of ejectment. Plaintiff’s statement avers that by virtue of an action of ejectment Parks was repossessed of the fire clay under a tract of land containing sixty-three acres and 121 perches, together with the' shaft sunk for the purpose of taking out said clay; that while the defendant was in the full possession of said tract of land it proceeded to mine and take away the clay from said tract of land, and to use the tracks,, cars and other mining equipment of the plaintiff therein. When the action was tried in the court below a claim was presented for the use of a shaft and certain fixtures. The shaft and fixtures were not a part of the land described in the ejectment. This shaft, with other privileges, was acquired under a lease from Anna Hetchie. It may be that the holding of this piece of land with the rights therein mentioned was convenient for the operation of the land embraced in the ejectment. It is certain that in the execution of the writ of habere facias the plaintiff could not secure possession of the leased' premises, if it was held adversely, unless the property and rights embodied in the. lease were described with sufficient accuracy to enable the officers to locate the premises leased.. . The verdict, in the ejectment was for the clay only under the sixty-three acres of 'land. In the ejectment the title to the leased premises was not in any manner controverted, nor the ownership of the premises determined.

In an action for mesne profits following a recovery in ejectment, if the defendant voluntarily surrenders to the plaintiff the occupation of a piece of land not embraced in such proceedings, but which is so connected and associated with the enjoyment of the land recovered in the ejectment that its use may be said to be a necessary part thereof, there is no reason why in this action.for mesne profits a count could not properly be included to embrace damages for the use and occupation of this land. No such averment appears in the plaintiff’s statement.

The statement did not contain any specific claim for the use and occupation of the land, specified in the lease nor any of the rights and privileges therein mentioned. The evidence sustaining the claim for use and occupation was general, covering the use made by the defendant of the land embodied in the lease as well as the land the title to which was determined in ejectment. On this leased land the plaintiff had erected a shaft through which the defendant, during, wrongful holding, had transported fire clay from his own land and the land owned by the plaintiff. To sustain his claim for damages, the plaintiff proved title to the leased premises. This title was disputed by the defendant. It was claimed that the leased premisés had been abandoned because the plaintiff had failed to keep the lease alive by continuing to make brick as provided, in the lease, and the defendant took possession of the property at the instance of the owner, Anna Hetchie. Whether or not the defendant abandoned the premises by failure to make brick would, in a proper case, be a question of fact for the-jury. An ex parte declaration of forfeiture was not evidence of abandonment. What was done by the lessee, testified to by witnesses, was the only competent evidence to establish abandonment. The mere suspension of the use through business conditions or other satisfactory reason would not work a forfeiture. The defendant’s fifth assignment of error, being the second point presented to the trial court for instructions, substantially raises all the questions-here involved. This assignment is sustained.

The plaintiff, by producing railroad scale weights, showed the tons of clay taken through the shaft out of the mines. This evidence would be competent if it had appeared that all of this clay came from the plaintiff’s land. Clay was removed from both properties. The plaintiff could not tell how much clay was taken from her land and how much from the defendánt’s, as the mine was filled with water. Without some knowledge as to the different proportions removed, the jury would not be permitted to guess as to the number of tons taken from the plaintiff’s land, and the testimony offered was wholly unreliable to establish approximately the amount taken from the- plaintiff’s land. The defendant, however, submitted evidence as to the number of tons moved and the jury, by their verdict, in specifying damages for this item, evidently declined to consider the plaintiff’s testimony with respect to the number of tons of clay moved and accepted the tonnage given by the; defendant. As stated by the appellee, this amount would recognize the válue of the clay moved, with interest. This much of the verdict is sustained.

The court below withdrew from the jury any consideration as to the damages for allowing water to accumulate in the mine and otherwise pérmitting the shaft to fall into decay. This was not a proper claim under the statement. It appears from the plaintiff’s testimony that the shaft was used ■ until December, 1907, when possession was relinquished by the defendant to the plaintiff. The defendant would not be responsible for the accumulation of natural mine drainage nor for what occurred after its actual surrender of possession. As the court withdrew the claim from the jury’s consideration, the evidence, while it might have a tendency to have enlarged the plaintiff’s claim with respect to nse and occupation of the shaft, we think would have no bearing on the value of the clay mined out, the verdict for which is here permitted to stand.

All of the assignments of error, with the exception of the fifth, are overruled. The judgment of the court below is modified by reducing the verdict to the sum of $180, being the amount specifically found by the jury for the clay mined, with interest, and as thus modified, the judgment is affirmed at the cost of the appellee.