Union Petroleum Co. v. Bliven Petroleum Co.

The opinion of the court was delivered, by

Sharswood, J.

— The title of the plaintiffs below, derived under the articles of agreement of September 26th 1859, between Mc-Clintock, the owner of the land, and Alden and Chase, was to “ the exclusive right and privilege of boring for salt, oil or minerals,” upon the McClintock farm, in Cornplanter township, Venango county, and in that respect was not to be distinguished from that which came under consideration and was passed upon by this court, in Funk v. Haldeman, 8 P. F. Smith 229. It is true that the word “ exclusive ” was not used in the grant in that case, yet upon the construction of the instrument it was held to be exclusive, and that the grantors had no mining privileges in common with the grantees. There, as here, the right granted was to experiment for oil; if found, to sever it from the land, and to take it, on yielding a third to the landlords as a chattel, not as any part of the realty. And the only possession to which the grantee was admitted was such as was necessary to the exercise of this right. The fact that one hundred and fifty dollars was in this case paid down in cash does not change the character of the grant. It was not, as in Caldwell v. Fulton, 7 Casey 475, a conveyance of the full right, title and privilege of digging and taking away stone-coal to any extent the grantee might think proper, which was held to be a conveyance of the entire ownership of the coal in place. It was, therefore, as in Funk v. Haldeman, the grant of a mere incorporeal hereditament. Indeed, we do not understand this to have been controverted in the court below, nor has it been made a question in this court. It follows that the only remedy which the plaintiffs had for the disturbance of their right was an action on the case. Ejectment they certainly could not have maintained.

What, then, was the legal operation and effect of the verdict and judgment in ejectment recovered by the defendants below in the Circuit Court of the United States ? It certainly could have no other or greater force than a similar proceeding in a court of this state would have had. Giving it all the conclusiveness claimed for it, as it was a recovery of the land, it may well be doubted whether, not being for the same subject-matter now in controversy, it can have any effect whatever, even persuasive, upon the title of a person to what is only an incorporeal hereditament issuing out of, annexed to or exercisable within the land, unless indeed such incorporeal right was derived by grant from the party against whom the recovery was had, as to which no question is raised on this record for our determination. Had McClintock’s title to the farm been set aside in favor of an adverse claimant, then indeed the grant must have fallen with it. But passing by this question, and admitting, for the sake of the argument, that the plaintiffs below were in fact the real parties in the action in the Circuit Court, or that it was a question which, upon the evidence, ought to have been submitted to the jury,.it presented the case of only one verdict and judgment in ejectment, which clearly was inconclusive of the title, even between parties and privies. Such a verdict and judgment are evidence in a subsequent ejectment only as persuasive. It is true that no action could have been maintained against the sheriff or the plaintiffs in the ejectment for the entry on the land hy virtue of the habere facias possessionem ; but it hy no means follows that when the plaintiffs in that proceeding were thus put in possession under that writ, it gave them any right to take the oil which belonged to the plaintiffs below, if indeed their title to it was otherwise established by the evidence, of which no question has been made for our decision upon this record. If it could establish such right, it would give an effect to one verdict and judgment in ejectment, which has never been thus far pretended or thought of, and for ever bar the owners of an incorporeal hereditament from any recovery whatever. It is not material, then, whether the reasons given by the court below for their answer to the first point of the defendants were right or wrong ; the answer in the negative was proper, and the plaintiffs in error have therefore no right to complain of it. Indeed the learned president seems himself to have come to this conclusion; for, in his opinion on the motion for a new trial, printed in the plaintiffs’ paper-book, he says : — “ Perhaps it was error to say that one verdict and judgment would be conclusive on any one in an action like the present, who would have no remedy in any other form, hut, if error, it did no injury to the defendants. Had this point been material and more fully considered, the instruction as to the effect of one judgment might have been different.” It is entirely unnecessary, therefore, in the view which we have taken of the case, to consider the question, which was the principal if not only one discussed before us, whether the plaintiffs below, on the evidence, if believed by the jury, were parties or privies to the action in the Circuit Court of the United States.

As to the assignment of error that the court erred in answering in the negative the defendants’ sixth point, which was in substance that the plaintiffs could not recover in this form of action unless they had shown to the satisfaction of the jury that they were in actual possession of the premises upon which the disturbance was alleged to have occurred, no authority has been cited in support of it, and it is apprehended that none can be found. On the contrary, it is very clear, from the nature of the case, that possession of the land is not necessary to enable the owner of an incorporeal hereditament to recover damages in this, which is the only form of action to which he can resort. In general he has no right to the possession of any part of the land. The grantee of a rent has no right to such possession, yet, if he is obstructed and prevented from his distress, which is the mode by which he can enjoy or enforce his right if denied, he surely can maintain his action. The grantee of a way over another man’s land has indeed a pedis possesssio while in the actual use of it, but no one has ever supposed that it was necessary that he should be actually walking over the land when the way is stopped up or obstructed, or another who has- no right in common with him uses it unlawfully to his injury. In grants of the right to bore for oil there is indeed usually, as in this case, a right to the possession of so much of the land as is necessary for the exercise of the privilege, but that, like the right of ingress and egress, is but an incident of the incorporeal hereditament. Possession of that might no doubt be gained or lost by ejectment, or enforced by trespass quare clausum fregit. To the latter action actual or constructive possession is necessary in the plaintiff, but never to an action of trespass in the case, as in the common instance of a reversioner suing for a permanent injury to the freehold.

The court below we think were right in not allowing the affidavits and depositions attached to the record of the judgment in the Circuit Court to go out with the jury.

Judgment affirmed.