Summary
Error, to tbe Common Pleas of Lebanon county.
This was an action of trespass to August Term, 1852, by Ann C. Coleman and others, by their guardian John Reynolds, v. Samuel Houck and George Snow, for taking ore from one of the Cornwall ore banks or mine hills in Lebanon county.
The plaintiffs claimed as heirs of Thomas Burd Coleman, deceased ; the defendants were teamsters in the employ of E. B. & C. B. Grubb, sons of Henry Bates Grubb, who claimed a right to take the ore in question.
See the report of the case of Coleman v. Coleman, in 7 Harris, as to the question of partition of the Cornwall ore-banks.
The Oormvall estate once belonged to Peter Grubb, Sr. On 3d December, 1737, he obtained a patent for 300 acres, which included the mine hills in question in this case, in which all mines and minerals are expressly granted to him; and in pursuance of a warrant in the name of Samuel Grubb, but belonging to Peter Grubb, dated 19th May, 1744, a tract of land was surveyed on 4th June, 1744, adjoining the tract on which the mine hills were, and in which the survey is described as “ beginning at a post, a corner of Peter Grubb’s mine land.”
The Cornwall estate, the subject of partition, &c., in 1787, consisted of various tracts of land, containing together about 9000 acres. The Cornwall ore banks and mine hills, forming part of two tracts of land, numbered 1 and 2 in that proceeding, and containing together about 750 acres of land, were parts of the . Cornwall Furnace estate.
The Cornwall estate, being formerly vested in Peter Grubb, Sr., on his death descended to his two sons, Curtis and Peter Grubb, the former under the then intestate laws taking two shares. Curtis Grubb conveyed the one undivided sixth to his son, Peter Grubb ; and the latter, on 9th May, 1787, in pursuance of articles of agreement, conveyed the one undivided sixth of the Cornwall estate so vested in him, to Robert Coleman, reserving to the grantor “ a quantity of iron ore sufficient for any one furnace at all times thereafter.”
In 1785, Robert Coleman owned in severalty the Flizabeth Furnace estate; and the minor children of Peter Grubb, Sr., owned the Mount Hope Furnace estate.
Thus, of the Cornwall Fxirnace estate, Curtis Grubb was owner of the undivided three-sixths; Robert Coleman of one-sixth; and Peter Grubb of two-sixths or one-third.
On 9th December, 1785, Curtis Grubb, Peter Grubb, and Robert Coleman entered into an agreement for the partition of the Cornwall Furnace estate, Hopewell Forges, and Union Forge, on Swatara Creek, held by them in common, in which they appointed seven persons named to make valuation, appraisement and partition thereof; and provided that the ore • banks belonging to Cornwall Furnace be divided into three equal parts, and two equal third parts thereof, considering quantity and quality, be allotted to Curtis Grubb and Robert Coleman, and the other third part to Peter Grubb.
Peter Grubb died after the execution of the said agreement, viz. on or about the 21st January, 1786, having devised his real and personal estate to his two sons, Burd Grubb and Henry Bates Grubb, to be equally divided between them; and by the will Jasper Yeates and others were appointed their guardians.
Curtis Grubb, Robert Coleman, and Jasper Yeates and others, as guardians, entered into an agreement dated 6th May, 1786 (referring to the agreement of 1785), for the valuation and partition, &c., of the Cornwall Furnace property and other estate held in common, and providing that “ the ore banks belonging to Cornwall Furnace aforesaid, be divided into three equal parts,” and two equal third parts thereof, considering quantity and quality, be assigned and allotted to Curtis Grubb and Robert Coleman, and one-third part to Burd Grubb and Henry Bates Grubb, to be held by them respectively in severalty. Seven persons were appointed to make the valuation and partition, of whom Thomas Clark was one. In this agreement it was stated, “ that the right of Cornwall Furnace, with such parts of the lands and the privileges as shall he deemed necessary and equal, is expressly agreed to be assigned to the said Curtis Grubb and Robert Coleman, according to their several shares thereof.” An equivalent for their third part was to be rendered to Burd Grubb and Henry B. Grubb, in other of the real estate. Amicable actions of partition were to be entered into in Lancaster and Dauphin counties to effect the arrangements.
Subsequently, another agreement, dated 30th August, 1787, was entered into by Curtis Grubb and Robert Coleman and four of the guardians, in which it was stated, that, whereas it hath been found on the fullest investigation that the agreement entered into between Curtis Gubb, Robert Coleman, and the guardians of the minor children of Peter Grubb, deceased, could not be carried into execution without injustice to some of the parties, and the same have been so represented by the parties appointed in the said agreement to make partition; therefore it was agreed that certain persons referred to (Thomas Clark being one) shall make partition of Cornwall Furnace, Hopewell Forge, and all the lands, &c., late the property of Curtis Grubb and Peter Grubb, according to quantity and quality, &c., and to assign and allot the same according to the real interests and conveniences of the several parties.
“ Provided always, and it is hereby agreed, that the ore hanks belonging to Cornwall Furnace shall remain together and undivided as a tenancy in common, the said Curtis Grubb being entitled to three-sixth parts thereof, the said Robert Coleman being entitled to one-sixth part thereof, and the said minor children being entitled to the remaining two-sixth parts; and that for this purpose an accurate survey shall he made of the said ore hanks and hills, if not already done, and it is hereby declared to be the true intent and meaning thereof, that neither of the said parties, their agents or workmen, shall interfere or interrupt either of the other parties at any mine hole by them opened and occupied for the purpose of raising iron ore.”
A subsequent agreement was entered into between the same parties, dated on the same day, as follows:—
“ Whereas, it hath been suggested that the article respecting the ore banks and hills requires further explanation, and that it may so happen that veins of ore may extend beyond the limits of the survey made lately hy Thomas Clark, it is hereby expressly declared and agreed that the said Burd Grubb, Henry Bates Grubb, and Robert Coleman, and their respective heirs and assigns, shall have full liberty and privilege of ingress, egress, and regress to and from the said mine hills, and shall have free and uninterrupted liberty and power to dig, sink shafts, drive drifts, raise and carry away any ore that may be found to extend beyond the limits of the said survey, without doing any material damage to the iron works or plantations. And it is" further agreed that the privileges of the water are hereby secured in the most ample manner, for the use of Curtis Grubb and Robert Coleman, their heirs and assigns for ever, and that this memorandum be considered, to all intents and purposes, part of the foregoing agreement. In witness,” &c.
In pursuance of such agreement, amicable actions of partition were entered into in the Common Pleas of Lancaster and Dauphin counties, and the referees, Thomas Clark being one, afterwards made report, which was dated the 31st August, 1787. They reported that they had vieAved the Cornwall Furnace, Hopewell Forges, Union Forge, and all the other real estate late the property of Curtis Grubb and Peter Grubb, and had allotted three undivided fourth parts to Curtis Grubb, and one undivided fourth part to Robert Coleman, of Cornwall Furnace, and lands “ hereinafter described and referred to in a draft or plot made by Thomas Clark, viz., No. 1 and No. 2, containing seven hundred and fifty acres, excepting thereout the draft of the ore banks and hills lately surveyed by the said Thomas Clark,” No. 3, containing 600 acres, &c., &c., allotting various portions of property to Curtis Grubb and Robert Coleman to be held in common as to each other, but in severalty as to the minor children of Peter Grubb. Other allotments were made to Curtis Grubb and Robert Coleman in severalty — Union Forge being allotted to Curtis Grubb. They further allotted to Burd Grubb and Henry Bates Grubb, Hopewell Forges, and certain lands “ described and referred to in the draft or plot aforesaid,” &c. They awarded the payment of $1704.43, with interest, by Burd Grubb and Henry Bates Grubb to Robert Coleman, and by Curtis Grubb to him of above ¿£31, and their report proceeded as follows: “ And we do further report, that the tract of land, Bigham’s Place, at Conewago, together with a small tract of forty acres of land adjoining thereto, and also the ore hanks and mine hills of Cornwall Furnace, do still remain undivided, to be held by the said Curtis Grubb, Robert Coleman, Burd Grubb, and Henry Bates Grubb, as tenants in common, according to their respective shares, and to the covenants and articles in the said agreement hereinbefore recited contained.”
The report was confirmed and partition ordered.
The estate of Curtis Cfrubh in Cornwall Furnace and the lands adjacent thereto, including the seven hundred and fifty acre tract hereinbefore mentioned, and also the estate of the said Curtis Grubb and the said Burd Grubb in the Cornwall ore banks and mine hills, became vested in Robert Coleman; and twenty-five undivided forty-eighth parts of the Cornwall ore banks and mine hills, and the Cornwall Furnace estate as aforesaid, were vested in the plaintiffs in this action when it was commenced.
Six undivided forty-eighth parts of the Cornwall ore banks and mine hills, being the quantity of the estate held by their father, Henry Bates Grubb, at the time of the partition of 1787, were at the commencement of this action vested in Edward B. Grubb and Clement B. Grubb.
The surface of the three hills whereon the Cornwall ore banks and mine hills are situated, had scattered over it in large quantities and partially imbedded in the soil, from the summit to the base, lumps or masses of ore, varying in size from a few pounds weight to several tons.
In May, 1842, the defendants collected a portion of these and carried them away, under direction from Edward B. and Clement B. Grubb, and this suit was then brought, it being alleged, on part of plaintiffs, that this kind of ore, usually called nigger heads, was’ not within the terms o’f the partition of 1787, and that E. B. and C. B. Grubb had no authority to go beyond the bounds of Clark’s survey, except by commencing within it and digging outward, following veins of ore. Clark’s survey, and the construction of the partition of 1T87, were the main points at issue in the case.
After the institution of the suit, an agreement in writing, dated 11th August, 1846, was signed b.y attorneys of the parties, by which it was agreed that E. B. Grubb and C. B. Grubb be substituted as the defendants; and it was agreed that at the institution of the suit, the fee simple in the land allotted by the referees to Curtis Grubb and Robert Coleman, was vested in the plaintiffs. Also, that at the time of the institution of the suits, the fee simple estate in the undivided five-sixths of three several tracts surveyed by Thomas Clark, prout the draft of the said survey, which is made part of this ease stated, was vested in the' plaintiffs, and the fee simple’ in the undivided sixth part in the said tracts was vested in the defendants, subject to the covenants in the agreements referred to.
It was further agreed that the parties shall select three iron-masters, or, in case of failure to select, then three iron-masters to be appointed by the Court, to decide upon the matters in controversy in this suit. A rule being granted on the defendants to show cause why the Court should not appoint three referees, a disavowal by E. B. Grubb of the reference was filed; and in September, 1847, the agreement to refer was stricken from the record. This was one of the errors assigned.
The first pleas put in were non eul., with leave to give the special matters in evidence, and liberum tenementum. Subsequently new assignments and new pleas were filed, the plea of not guilty being withdrawn.
The pleadings were voluminous. See argument postea page, 406.
On part of plaintiffs, Jacob Weidle, a surveyor, was examined, who exhibited a draft of a survey of the mine hills made by him. He said he made it upon the basis of a survey alleged to have been made by Thomas Olark; that he located the draft according to that survey.
Evidence was then given as to the handwriting of Thomas Clark, and that he had been dead near forty years.
There was then offered in evidence a draft alleged to be the draft made by Thomas Clark, and referred to in the report of the referees who made the partition. The draft was objected to as not being sufficiently proved, and that it was without date; but the Court decided that it was sufficiently proved to be submitted to the jury. Exception was taken.
The surveyor stated that he found no stones or posts set to indicate Clark’s survey; that it does not extend to the foot of the hill.
On part of the defendants, Hoffer, another surveyor, was examined, who stated that he could not locate on the ground the alleged survey by Clark.
It was then offered to show the extent of the hills ; and that the paper produced as Clark’s survey was not an accurate delineation of the hills, and could not have' been intended as the survey thereof. This was objected to on the ground that Clark’s survey, and not the hills as they exist, is to designate the rights of the parties. The testimony was admitted, and was the subject of exception.
This witness said the hills were in most places well defined; in some not.
S. D. Rogers was examined, and, inter alia, testified that according to his present information, Clark’s survey does not embrace all the ore; that he thought a larger area would have to be included to take in the whole of the big hill; that topographers might disagree as to the exact place where a hill terminates and the plane begins. He said he considered the house to be below the hill. He testified that this mine ore he considered stratified; that the ore in these hills does not belong to the class of hematite —is but slightly magnetic. The ore exposed to the elements has passed to the condition of hematite; that the nigger heads approach nearer to hematite, having been acted on by the elements.
J. J7. Rogers testified that he considered that Clark’s survey did not embrace near all the hill, topographically speaking. That the several hills are of one geological formation; the ore being of several varieties, but of the same general character; that the nigger heads were boulders from the harder ore, but were homogeneous with the other ore, of a different composition but of the same formation. Another witness said that he was administrator of Grubb’s estate; managed Mount Hope Furnace for seven years; got ore from Middle* Grassy, and Big Hill, and never heard of any survey or marks around the hills; also that the mines were often broken by faults and rock; that the three hills are distinct and well defined; considered it a mass of ore, not veins; judged by the surface. Another witness said that he was employed in working ore from the hills about 48 years before ; that he never saw or heard of lines on the ground limiting the ore digging; that nigger heads were taken to Mount Vernon, Mount Hope, and other furnaces of Grubb’s. Another witness said that the Clark survey was 200 yards from the top of the hill, and in places about as far from the bottom; and another said that he had been nine years at the works, and always began to mine from the bottom of the hill; that he had mined on the outside of the Clark survey; was digging for Grubbs ; that the mine was commenced before his time; did not know whether it was begun outside or inside of the Clark survey.
Pearson, President Judge, in his charge to the jury observed, “ that to the declaration of the plaintiffs complaining of a trespass on their freehold, the defendants aver in substance, first, that it is their own free tenement; second, that it belongs to the plaintiffs and E, B. and C. B. Grubb, as tenants in common, and that they entered under the authority of the latter; thirdly, that if it is not within the freehold held in common, that Grubbs had, under the arrangement of 1787, a right to enter and remove the ore taken. That whether the ore taken was situate outside of the property held in common under the agreement made in 1787, depended on the location of the land reserved from partition. If the ore was removed from the land held as a tenancy in common by Coleman and Grubbs, this action will not lie; nor can it be sustained if Grubbs had a license to dig on the mine hills, where the trespass was committed, beyond the line of their common estate.”
In relation to the survey alleged to have been made by Thomas Clark, he observed, “that the written agreement of the parties showed that he had surveyed the hills and ore banks agreed to be excluded from partition, and that it was but fair to infer that the act was done for that purpose. He observed that from the endorsement on its back, stating that it was made for Curtis Grubb, Peter Grubb, and Robert Coleman, it was contended on part of the defendants that it was made in the lifetime of Peter Grubb; but he considered it unreasonable to suppose that it was made before any idea seemed to have been entertained of excluding the mine hills from partition, and that it had been carelessly endorsed. He however submitted to the jury to decide whether the survey was made by Thomas Clark, for the purpose of defining the ore hills, and was the one referred to in the writing or not. That if the jury concluded that it was, then to inquire as to whether it was intended to represent a survey marked and defined on the ground, or was made from conjecture; and whether it is possible at this time to locate it with reasonable certainty. * * * If no survey was made, or none can now be discovered, the co-tenants in common or those claiming under them, would have a right to obtain ore from any portion of the ore banks and hills, provided the line to designate the place of taking ore should be so run as to secure the privilege of the water to the owner of Cornwall estate, and no material damage be done to the iron works and plantation.” * * * He further observed, “ that the great difficulty was to ascertain whether the draft produced, correctly delineated the survey referred to in the report of the referees, or whether some other draft at one time existed. ‘Wherever Thomas Clark’s survey was made, there the tenancy in common is bounded.’ ”
In answer to the plaintiff’s first point he charged, that “in the absence of any proof of a survey, the ore banks and hills are excluded from partition, and are not presumed to have been embraced. It would have been a violation of the agreement of the parties to have included them. They never were vested in the plaintiffs, or those through whom they claim in severalty; and any one of the tenants in common would have a right to dig ore on any part of the hills, provided they did not violate the agreement as to encroaching on the water rights, or materially injuring the iron works or plantation, but they have no privilege to go beyond the hills.”
He further observed, “ Taking it for granted that Thomas Clark made a survey of the premises, as averred by the plaintiffs, and that the ore in dispute was removed from without the boundaries of that survey, had Grubbs a right to do the act under the agreement of August 30, 1787 ? That depends upon the construction of the writing, which is a question solely for the Court.”
He charged that under the supplementary agreement of August, 1787, the Grubbs -were not bound to commence within the lines of Clark’s survey, and work outwards into the adjoining premises; that the vein need not be continuous or connected with the ore within the lines, or unbroken by trap rock, or otherwise, or be an extension of the vein of ore. He expressed the opinion that the Grubbs had full authority under the agreement to remove the ore complained of.
Fie added, “We are desirous that you should decide whether the draft in evidence was or was not made by Thomas Clark for the purpose of designating the land exempted from partition, as the establishment of that fact may be important to the parties hereafter. But as we have already said that the action cannot be sustained whether the ore taken was within or without the lines of Clark’s survey (provided it was on either of the mine hills, which is proved and conceded), it (the survey) is not very important to the decision of the present case.”
He added, “ In the very confused state of the pleadings, it is difficult for us to instruct on which of the various issues to. render your verdict; but when agreed on, we will endeavor to put it in such form as will prejudice none of the plaintiff’s rights hereafter.” April 13th, 1854, the jury say that they find that the defendants were acting for and under E. B. Grubb and Clement B. Grubb ; and as they were instructed by the .Court, had a right, according to the provisions of the agreement entered into on the 30th day of -August, 1787, between Curtis Grubb, Robert Coleman, J. Yeates, Ed. Burd, Joseph Shippen, Jr., and Edward Hand, for the purpose of making partition to dig the ore complained of in plaintiff’s narr., whether the same was situate within or without the bounds of Thomas Clark’s survey, and were justifiable in so doing; and that they do not find whether the draft alleged to have been made by Thomas Clark, and given in evidence in this case, was or was not the survey referred to in the proceedings in partition ; and they do not find whether the place on which the alleged trespass was committed, was within or without the bounds of the said survey, or on the property held in common or not; and the defendants being so justified, they find a verdict in favor of the defendants.
Motions were made for a new trial, and in arrest of judgment; and reasons were filed.
Pearson, J., in his opinion, inter alia, observed:— “ In our opinion the evidence in favor of the draft having been made for the purpose of designating the survey, greatly preponderated; but the jury declining to determine the point one way or the other, injures neither party, and leaves the question open for future adjudication. According to our construction of the supplemental agreement of the 30th August, 1787, the defendants were justified in removing the ore, whether found within or without the bounds of the survey, and on the correctness or incorrectness of that opinion the cause turned, and if we construed it rightly, must always turn. We are not yet convinced of any error in that opinion, and therefore overrule the motion for a new trial.”
As to whether the pleadings are or are not such as to sustain a judgment, he, inter alia, observed that “ as no defects were pointed out on the trial, or on the motion in arrest of judgment, we take it for granted they are-regular. The verdict was drawn up hastily, and for the mere purpose of avoiding injury to the plaintiffs’ title, by reason of any of the various pleas inserted by the defendants. All that was intended by the verdict, was to exclude a conclusion. If it has that effect it will have performed its office, as there is a general finding for the defendants, with a sufficient statement that they did not pass on or determine the titles of the - parties, but found, under the instruction of the Court, that there was a license to dig and remove the ore.”
It was assigned for error: 1. The Court erred in permitting the defendants to give evidence of the extent of the hills, on and around the summit of which, the Cornwall ore banks and mine hills are located, as pertinent to the location of Clark’s survey, such evidence tending to mislead the jury as to the true point at issue. 2. The Court erred in admitting the draft of Esquire Hoffer, purporting to show the extent of the Cornwall hills, by taking the water line at the base of them as pertinent to the location of Clark’s survey, such evidence tending to' mislead the jury as to the true point at issue. In 8d and 4th it was alleged that the Court erred in the charge as to the first point, and also in avoiding it. 5. The Court further erred in their answer to the plaintiffs’ first point, in this: That in connexion with that portion of their answer to the plaintiffs’ first point, quoted in the fourth specification of error, the Court also say: “If no survey was made, then we must resort to the next best evidence — the other portion of the description of the agreement — ‘ the ore banks and hills.’” Which was error, because it submitted to the jury the question whether Clark’s survey had ever been made, whereas the agreements of the parties and the record of the partition of 1787, were conclusive evidence in .law that it had been made; and if they were not conclusive, there was no evidence that it was not made. 6. The Court erred in all that part of their charge relating to the construction of the supplementary agreement of 30th August, 1787, which is in answer to the plaintiffs’ second point. 7. The Court erred in entering judgment on the verdict, because it did not find any issue joined. 8. The Court erred in striking off the agreement to refer.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
