Grubb's Appeal

1. The proper construction of a deed is not a subject of equity jurisdiction, and whore there is neither averment nor proof of fraud, accident oi mistake, a court of equity cannot be asked to reform a deed. 2. A person who is not a tenant in possession, but possesses a right to dig ore, is not guilty of committing a waste or trespass when he takes out more ore than his contract or his right calls for, and a court of equity cannot restrain him by injunction. 3. Nor will a court of equity in such a case decree an account where the account is a mere matter of charge for a certain number of tons of ore, with no entries on the other side of the account: This is clearly the subject of an action of assumpsit at law.

Appeal from the decree of the Court of Common Pleas of Lancaster county: Of May Term 1878, No. 132. In Equity. Bill in equity filed June 25th 1875 by Clement B. Grubb against Alfred Bates Grubb. The bill averred in substance, that, in 1845 the plaintiff and his brother Edward were co-tenants in fee of Mount Hope Furnace, in Lancaster county, and also, with others, co-tenants of the “ Cornwall Ore-banks ”; that at that time Edward Grubb and defendant, A. Bates Grubb, were copartners in the manufacture of iron at Mount Hope Furnace; that in 1845 plaintiff and defendant agreed that plaintiff’s individual half of Mount Hope should be conveyed to defendant, “ together also with the right, title and interest, so far as the said Alfred Bates Grubb’s right under this conveyance in the said Mount Hope Furnace is interested and concerned, of them, the said Clement B. Grubb and Mary Ann Grubb, his wife, to raise, dig up and carry away, for the use and advantage of said furnace, iron ore out of and from * * * the ‘ Cornwall Ore-banks ’ * * * for the purpose only of procuring ore for the said Mount Hope Furnace * * * ; ” that Edward Grubb and defendant operated the furnace as ^copartners until the death of Edward, in 1867, during which period the ore was obtained from said banks; that in 1870 the heirs of Edward began certain proceedings in partition against defendant, the result of which was that the defendant, in April 1874, became the sole owner of said Mount Hope Furnace; that the defendant recently asserted a right to take ore from said banks, without limit, instead of a moiety thereof. The bill further alleged that this claim to a full supply instead of a moiety was contrary to the agreement of purchase and the construction of the deed; that plaintiff owned one-twelfth of said Cornwall banks, and that he had articles of agreement with his co-proprietors, under which the ore taken by defendant was considered as taken by plaintiff, and was at his exclusive cost; that the wrong of taking the ore being continuous and recurring would cause a multiplicity of suits, against which relief could be had in equity alone, and it therefore prayed that it should be decreed that defendant’s right is to take but one-half of the ore used at Mount Hope: that if the words of the deed of ■ 1845 did not clearly confine the defendant’s right to a half supply, the deed should be reformed; that defendant be decreed to account to the proprietors of Cornwall for one-half of the ore; that defendant be decreed to submit to such method of determining the rights involved as is necessary to protect plaintiff, and in the meantime that he be enjoined from acting under his grant; that plaintiff should have such further relief as would prevent a surcharge of the grant made or intended to be made. The defendant in his answer set forth a title to show that the one-sixth interest in Cornwall banks was a part of Mount Hope estate and they were considered as one estate, and that by virtue of the defendant’s ownership of said estate he had a right to an unlimited supply of ore from said banks, and that the deed of 1845 contemplated a right to a full supply of ore therefrom. The answer further averred that the matters alleged in the plaintiff’s bill were not such.as entitled plaintiff to relief in equity. The case was referred to George Nauman, Esq., as examiner and master, who upon the question of jurisdiction, reported that “as no fraud, accident or mistake has been proved, as no evidence has been laid before him -which would call for the cancellation or reformation of any paper, and as there are no mutual or complicated accounts between the parties, the jurisdiction of a court of equity, in this case, is to say the least, doubtful.” He further reported that believing “so far as he can ascertain it from the language of the deed and the circumstances of the parties at the time of making it, that the intention was that a right should be granted to a full supply of ore, and that this right should be annexed to the ownership of the individual half of Mount Hope Furnace, he recommends that the bill should be dismissed.” Both plaintiff and defendant excepted to this report. The court, Livingston, P. J., delivering the opinion, sustained the exceptions of the plaintiff and entered a decree that the “interest and right of defendant to take ore from said Cornwall ore banks is to the extent of a moiety only” commensurate with the interest of Mount Hope Furnace, and that defendant should account for the ore taken in excess of the amount he was thus entitled to take. The amount then due was ascertained and reported by a master, and the court entered a decree that said amount should be paid by defendant to plaintiff. On the question of jurisdiction the court said: “By the Act of June 16th 1836, sect. 18, the legislature has declared that the Supreme Court and the several courts of common pleas of this Commonwealth should have the jurisdiction and powers of a court of chancery, with reference to the matters therein enumerated and specified. And that the Supreme Court when sitting in banc, in the city of Philadelphia, and the Court of Common Pleas for said city and county, shall, besides the powers thereinbefore enumerated, have the power and jurisdiction of Courts of Chancery, so far as relates to— “ ‘ The prevention or restraint of the commission or continuance of acts contrary to law and prejudicial to the interests of the community or the rights of individuals.’ And by the Act of February 14th 3 857, the legislature declares, ‘ that the several Courts of Common Pleas of this Commonwealth, in addition to the powers and jurisdiction heretofore possessed and exercised, shall have the same chancery powers and jurisdictions -which are now by law vested in the Court of Common Pleas or District Court of the city and county of Philadelphia,’ and provides for an appeal from their decrees to the Supreme Court. “ It may, therefore, be said, as decided in Denny v. Brunson, 5 Casey 382, &c., ‘ that by the 18th section of the Act of 16th of June 1836, the equity jurisdiction of the courts therein specified, and those to which it has been extended by subsequent legislation, extends to’ ‘the prevention or restraint of the commission or continuance of acts contrary to law and prejudicial to the interests of the community or the rights of individuals.’. “And waste, as.an act contrary to law, is within the purview of the legislation of this Commonwealth on the equitable powers of the courts, and the jurisdiction conferred expressly extends to its prevention or restraint, and all the Courts of Common Pleas in the state now possess, in addition to their writs of estrepement, the power to restrain and stop waste by injunction. “ In Scheetz and Stout’s Appeal, 11 Casey 88, &c., it is decided that ‘the Courts of Common Pleas have jurisdiction in equity to restrain by injunction repeated acts of trespass upon the legal rights of a complainant.’ “ In Unangst’s Appeal, 5 P. F. Smith 128, it w.as held that a corporation obtaining a concession to enter, on condition of refraining from a particular injury, in its nature irreparable and not readily estimated in damages, forfeits its license, when it violates the condition, and should be restrained till it does equity. “And in Stoekdale v. Ullery, 1 Wright 486, it was held that the courts, in granting injunctions, are not restricted to acts ‘ contrary to law,’ but may exercise this power to restrain acts contrary to equity also; equity being so much a part of the law of Pennsylvania as that the word ‘ law’ often means both law and equity, or either. “ The equity powers and jurisdiction of courts being no longer confined to cases of accident, mistake, fraud, the cancellation or reformation of papers, or to complicated accounts between parties, but having, as we have seen, been extended and made to apply to the ‘ prevention or restraint of the commission or continuance of acts contrary to law and prejudicial to the interests of the community or the rights of individuals, we think the powers and jurisdiction of a court of equity are sufficiently broad and comprehensive to extend to and embrace the controversy or case as here developed.” From a decree in accord with this opinion the defendant took this appeal, alleging, inter alia, that the court erred in holding that the case was within the jurisdiction of-a court of equity.