Big Mountain Improvement Co.'s Appeal

1. A grant of a surface right with a stipulation that it shall not be “ for the purpose of laying out a town or building thereon, but only for the purpose of a coal-breaker and dirt-room for the deposit of coal-dirt,” is the grant of an easement only although in fee. 2. An easement is a liberty, privilege or advantage which one may have in the lands of another without profit. 3. A parol contract for the exchange of land is not complete when it wants certainty, and possession has not been taken under and pursuant to it. 4. Where a party entered upon land in consequence of a parol promise of the owner to exchange for other land, made improvements with the knowledge of the owner, the latter cannot take advantage of the want of a contract, that would bind him to convey the land. 5. A party by whose encouragement expenditures have been made to such an extent as to be incapable of reimbursement except by enjoyment, will be enjoined from disturbing the possession; he is estopped because he would wrong the party by withdrawing his consent. 6. An action of ejectment by the party who would thus be estopped, is not an adequate remedy at law to the defendant. 7. Under the Act of June 16th 1836 the courts may restrain a corporation from doing an unconscionable thing outside of its ordinary business sphere as well as within it.

Certificate from Nisi Prius. This was a bill in equity by Thomas Baumgardner against The Big Mountain Improvement Company and William P. Jenks, President, Charles W. Trotter, William A. Atlee, Thomas Shipley and D. C. Wharton, Directors of said company, filed April 14th 1862. The defendants filed a joint answer August 4th; the complainants replied October 4th 1^62, and same day the bill, answer and replication were referred to Garrick Mallery, Esq., as examiner and master. There were numerous matters complained of in the bill, hut the appeal limited the inquiry to one question. With reference to that the bill set out that on the 6th day of December 1853 the owners of a tract of land in Northumberland county known as the “ Robert Gray tract',” “ agreed to sell and convey in fee simple to the Big Mountain Improvement Company the whole of the surface right of and in all that certain part of the tract, &c., described, &c., containing about ten acres, deed to be executed whenever the said company demand the same and comply with the covenants, &c.” * * * “ The surface right hereby granted shall not be deemed or taken to be a right granted to the said company for the purpose of laying out a town or building thereon, but only for the purpose of a coal-breaker and dirt-room for the deposit of coal-dirt;” that afterwards the whole of the tract, through sundry mesne conveyances, became vested in the complainant, and that no reservation or exception of the surface right over the before-mentioned ten acres is contained in any of the conveyances; that the company erected a breaker with the usual buildings and appurtenances on the easternmost line of the ten acre tract; that difficulties and disputes arose between the complainant and the company with respect to the other parts of the tract, and on the 10th day of February 1859, both parties agreed to “leave all matters of damages or trespass outside the ten acres,” to three arbitrators whose award was to be final. The bill further set out that at the same time it was agreed verbally between complainant and the president of the company that the complainant should erect a coal-breaker necessary for his operations on the “ Gray tract,” then contemplated by him, on the north-easternmost portion of the ten acre tract, and that for the purpose of erecting the breaker with the usual appurtenances, &c., the company should surrender to him their right to the surface of 3J acres of the north-eastern portion of the tract and that in exchange the company should have the surface right to an equal quantity of the Gray tract; that in pursuance of the agreement the complainant took possession of that portion of the 10 acre tract and erected a large and expensive breaker with the other works belonging to it, at a cost of above $16,000, and that the defendants took possession of the portion of the tract taken by them in exchange ; that the arbitrators, under the agreement, visited and examined the premises with the president and others interested in the company and the complainant, and that the complainant’s workmen were then employed in constructing his breaker, &c., on the portion of the tract surrendered to him; that the president then informed the arbitrators of the exchange which had been made and that they were not to take into consideration the occupancy of the respective partS exchanged; and-that the ai’bitrators awarded that the company pay to the complainant §1000 in full for all damages of every kind ; that the defendants soon after drove stakes to mark the lines of the portion taken by them in exchange ; that the complainant, on the 9th of February 1859, entered into an agreement with John J. and William H. Douty for mining coal on the Gray tract, that they were to have the use of the breaker, which it was agreed should be ready for use against the 1st of July 1859, at which time the lessees commenced mining on the tract; the breaker was to be kept in order by the complainant. The bill further set out that difficulties again arising between the complainant and defendants, the parties met in Philadelphia about the 20th of December 1859 for the purpose of adjusting them, and then agreed, amongst other things, that the §1000 awarded by the arbitrators should be paid and that a conveyance for the surface rights exchanged should at once be drawn and executed.; that subsequently the defendants submitted to the complainant the draft of an agreement as containing the matters agreed upon in Philadelphia, including a stipulation to pay the §1000 and the execution of the deeds of exchange, to which the complainant refused to accede as not containing the stipulations arranged in Philadelphia and as implying in its recital that the breaker had been -erected inadvertently and not in pursuance of an agreement; that soon after the 21st of March 1860, a surveyor, employed by the defendants for the purpose, made a survey of the land exchanged and marked the respective portions distinctively on the plot, and from this plot the defendants’ attorney prepared deeds purporting to convey to the parties their respective portions as indicated on the plot; that there were prepared by the same attorney releases to be executed by certain mortgagees on complainant’s land and that the complainant procured the execution of the releases; that afterwards the breaker of the defendants was burned and they built another more than 1000 feet distant from it, and that in consequence the land which they were to take in exchange having become valueless they refused to execute the deed of exchange, and on the 6th of July 1860 brought an action of ejectment against the complainant and his lessees to recover the possession of the land on which his coal-breaker is erected and for which - he was, to receive a deed of exchange from the company, which ejectment is still pending. The bill prayed that the defendants might be restrained from proceeding in the action of ejectment, as well as for other relief. The defendants answered that the complainant is not' entitled to relief against the ejectment, because he can avail himself of every defence in the court of law which he can set up in a court of equity, and as the court of law has already jurisdiction of the subject-matter, he is not entitled to transfer the case from that court to the Supreme Court. They deny the parol agreement of exchange, and that they gave the complainant permission to erect his breaker on the ten acre tract, or that the complainant took possession in pursuance of such agreement as he has alleged, or that they took possession of any other land in pursuance of such agreement; they admit they visited the premises with the arbitrators, and that the complainant’s workmen were then constructing the breaker, but deny that they had surrendered the surface right, or that Jenks informed the arbitrators of any exchange of land and directed them to confine themselves to the damage, if any, of the trespasses in the location of the drift road, &c.; and Jenks, one of the defendants, states that he then remonstrated with the complainant against constructing his breaker on that location, averring that he had no right to construct it; that the complainant averred that he owned the whole ten acres under a conveyance from the owners of the Gray tract. The answer denies that any stakes were driven to indicate any land exchanged; it avers that complainant’s breaker was erected after notice that he was erecting it on defendant’s property, and that they knew nothing of his agreement with his lessees; that the agreement which complainant refused to sign was in accordance with the arrangements in Philadelphia; that the complainant was not in a condition in regard to his title to carry out his arrangements; that in consequence of the complainant’s refusal to convey the land the defendants were compelled to select another site for their breaker. To understand the case- on the points considered in the Supreme Court, a statement of the evidence, as reported by the Master, is necessary. Pie reports:— “The first testimony upon this point” (the exchange) “related to the time when the arbitrators met, who were appointed under an agreement dated March 11th 1859, to whom were submitted all matters in variance between the parties. Mr. Bird, the respondent’s witness, speaks of this matter, first, in order of time : that before they left Shamokin, on the day of the arbitration, the complainant said to Mr. Jenks, or Mr.. Trotter, ‘ That, for what he wanted to take of the ten acres, to put his breaker on, he would give them other land that would suit them better, and he proposed to give something more in quantity than he wanted to take of the ten acre surface right.’ Mr. Jenks said to him that, if he could do that, they would be willing to make the exchange, and they agreed then that that should be the understanding; and it was to be left to Mr. Yan Gaskin to select; and if Mr. Yan Gaskin, as the agent of the company, was of opinion that the land that he could give them would suit them better, or as well, he would agree to make the exchange ; and the arbitrators and Mr. Jenks and several others went from the town up to the spot where he was putting up his breaker, and then Mr. Jenks said to the arbitrators, ‘ the matter of the ten acre surface right you need have nothing to do with ; Mr. Baumgardner says he will give us other land that will suit us better, and we have agreed to take it, and it is to be left to Van Gaskin to select; and if he is of opinion that he can give us land that will answer as well, or better, we will make the exchange, and you arbitrators need not have anything to do with the ten acre surface right. We intend to make the exchange. That was after we got up to the place and the arbitrators were going to make up matters to give their verdict.’ He. also states that Baumgardner had commenced his breaker previously to that time, and was at work at it at that time. “ Mr. Fisk, one of the arbitrators, testified that when they arrived at a point where the line of the Gray tract crosses the Big Mountain Railroad, which point was designated by a notch cut in one of the cross-ties of the railroad, and also painted upon a post or stump of a bush or tree, Mr. Jenks called our attention to that line, and, as nearly as I can remember, his language was this: ‘Now, gentlemen, you have nothing to do with this matter of surface right. That has been arranged. That is not the question befo.re you. Mr. Baumgardner and myself have arranged that, and Mr. Baumgardner, with our superintendent, Mr. Van Gaskin, will go on and stake out the ground, and we are to make an exchange with him. We are to give him the surface right below for his breaker and improvements, and we are to take other ground. But that is all agreed upon. You have nothing to do with that.’ He also states that the breaker of Baumgardner was then being built. He saw the excavation, and the men were at work putting in the foundation-walls of the present breaker of Mr. Baumgardner: He says he heard no objection to the building the breaker on the other land. A satisfaction was expressed by Mr. Jenks that the matter had been arranged so that Mr. Baumgardner had room for his breaker and improvements, and they had room for their dirt. He confirms the same statement in his cross-examination. “William A. Cherington, another arbitrator, concurs in the statement made by Mr. Fisk. In his cross-examination, in answer to the question whether it was left open between Mr. Van Gaskin and Baumgardner to select the proper grounds for the purpose of making the exchange afterwards, he says, Not as to the matter of selection as to the matter of its staking off. The matter of selection had been agreed upon, as I understood. Mr. Baumgardner and Mr. Van Gaskin tvere to have it staked off afterwards. “ Mr. Van Gaskin, the agent of the company, says the first he recollects about anything being stated was before we got to the Henry Clay Breaker, as we were goin^ up from Shamokin, Mr. Jenks remarked that Mr. Baumgardner was laying his sideing on the embankment of the Big Mountain, on their road-bed. Mr. Baumgardner replied, ‘ the ground is mine ; it is all mine.’ Then when we got up to where they were at work about the breaker foundation, they were stating to the arbitrators what they would have to take into consideration. And I recollect Mr. Jenks made a remark something of this nature, as near as I can recollect, that the exchange of the ground they had nothing to do with; that Mr. Baumgardner and he had had a talk, and they would fix that matter without giving them any trouble about it. He says that is the substance of the remark to the arbitrators. He thinks it was at the same time that Mr. Baumgardner asked Mr. Jenks where he would have it. He said,{I don’t know. I leave it to my superintendent to be the judge. He knows better'what we want.’ And it was agreed that I should make choice of the piece of ground in lieu of the piece they were building their breaker and putting their lateral railroad on.” The master reported as to the parol contract of exchange:— “ I cannot find any parol contract for the exchange of the surface right that will bring the case within the principles laid down in the decisions. * * * The alleged contract did not describe the property to be exchanged, and was too uncertain to be enforced in equity, and possession, the only evidence of part performance, had been taken by both parties before the date of the alleged contract.” He also reported that none of the unexecuted papers, as contended by the complainant, were written contracts. The complainant contended before the master that the defendants were equitably estopped from interfering with him in the enjoyment of the breaker and the improvements connected with it. On this question he reported:— “ I shall not take time to refer to the authorities upon this question, but state that from all the evidence in the case, it appears to me to be inequitable that defendants should take from complainant his improvements because there has been a subsequent disagreement between the parties concerning the ground which defendants were to receive in exchange, or an omission by Mr. Yan Gaskin to make the selection. “ If the complainant refused to comply with the contract, he would be liable to an action for damages, in which compensation c'ould be recovered by' the defendants.” He decided finally:— 1. That no parol contract for exchange of the surface right has been proved and so far executed that it can be enforced in equity. 2. That there is no written contract containing a description of the property proved, so as to take the case out of the statute. * »•**** 4. That, under the facts of this case, I find that defendants are estopped in equity from claiming the surface right on which complainant’s improvements are erected. 10. That the action of ejectment is not the proper remedy in this case, and if it could be maintained, the remedy would not be as effectual as a decree in equity. 11. That an injunction be issued, restraining the defendants from prosecuting the pending ejectment, or from instituting any other action for the recovery of the same premises. To this report exceptions were filed, which were overruled by Mr. Justice Strong, and the report confirmed. And it was further decreed that the defendant, the Big Mountain Improvement Company, and all persons claiming under said company, be perpetually enjoined from further prosecuting the action of ejectment pending in the Ooui’t of Common Pleas of Northumberland county, against the defendant and his title, &c. The defendants appealed.