Ruttledge v. Kress

Opinion by Beaver, J.,

In order to reach a proper conclusion in the present case, it will be well to keep prominently in mind the evident intent of the legislature and the dominant thought in the law which we are called upon to construe. From the time when, under the Levitical code, the Levites said “ Cursed be he that removeth his neighbor’s landmarks, and all the people said amen,” down to the present time, the boundaries of the habitations and possessions of men have been the object of the law’s jealous solicitude and care.

The 3d section of the Act of March 29, 1824, P. L. 152, provides: “That, in all cases where any person, after the first day of September, shall cut down or fell or employ any person or persons to cut down or fell any timber tree or trees growing upon the lands of another, without the consent of the owner thereof, he, she or they so offending shall be liable to pay to such owner double the value of such tree or trees so cut down or felled; or, in case of the conversion thereof to the use of such offender or offenders, treble the value thereof, to be recovered with costs of suit by action of trespass or trover, as the ease may be, and no prosecution -by indictment shall be any bar to such action.” The Act of May 8, 1876, P. L. 142, is evidently intended to protect the owners of lands in the enjoy *494 ment of their own property by imposing the same penalties for the removal of material below the earth’s surface as provided by the act of 1824, supra, in regard to the cutting of timber trees. The gist of both acts is the trespass upon the lands of another and the object of both evidently is to preserve inviolate the boundaries of adjoining owners of lands. Inasmuch, however, as it is more difficult to .. determine the boundaries 'beneath the soil than above it, the act of 1876 requires..the trespass to be done knowingly.

The only question presented for our consideration in this case is whether or not the provisions of the act of 1876, supra, apply to the digging, quarrying and carrying away of stone from an open quarry. The language of the act is: “ That, if any person or corporation shall mine or dig out any coal, iron or other minerals, knowing the same to be upon the lands of another person or corporation, without the consent of the owner, the person or corporation so offending shall be guilty of a misdemeanor, and being thereof convicted, shall be sentenced to pay such fine not exceeding $1,000 or to such imprisonment not exceeding one year as the court in their discretion may think proper to impose; and the person or corporation so offending shall be further liable to pay to such owner double the value of the said coal, iron or other materials so mined, dug out or removed, or in case of the conversion of the same to the use of such offender or offenders treble the value thereof, to be recovered with costs of suit by action of trespass or trover as the case may be, and no prosecution by indictment under this act shall be a bar to such action.” It is conceded that stone, of whatever character, is a mineral and that, although the act might appty to fire clay, which is a species of rock and dug from under the surface of the ground, it does not apply to building stone dug or carried away from an open quarry on the surface of the ground, and this, upon the ground, as argued by the appellants, “ that penal statutes are enacted to regulate the conduct of the bulk of humanity, not merely the actions of men of science. The words of such statutes are, therefore, to be interpreted in the sense in which the bulk of humanity could understand them.” And, as authority for this position, we are referred to Dunham et al. v. Kirkpatrick, 101 Pa. 36 , and numerous cases of like character, in which the courts construed the terms of a grant *495 of all minerals contained in a deed and in which it was held that the grant was to be construed according to the understanding of the parties, which would be based upon the generally accepted meaning of the term “ minerals.” But we are not construing a grant and the reasons which govern in the construction of deeds, leases, etc., do not apply in the construction of an act of assembly. The main object of the act under consideration, as of that of 1824, evidently was to preserve the boundaries of adjoining landowners inviolate and the reason for the law applies as fully in the case of digging or quarrying and carrying away limestone, granite or any other building material from an open quarry as in digging, mining and carrying away stratified iron ore, fire clay or other minerals under the ground. A quarry is defined to be “ an excavation or other place from which stone is taken by cutting, blasting or the like, usually distinguished from a mine from being widely open at the top and front.” To quarry is “ to cut, dig or take from, as from a quarry.” When we consider, as is matter of common knowledge, that some of the most valuable anthracite coal mines are, after the earth is stripped therefrom, surface mines, and that the great mass of the hematite iron ore mined in Pennsylvania is taken from the surface, the distinction between surface mining and underground mining loses its significance. If surface clay, which contains iron or aluminum were taken away from the land of another for the purpose of using the minerals therein contained, there can be no doubt that the trespasser would be liable under the terms of this act to the penalties therein provided. Under the contention of the appellant, iron ore mined fronv the surface of the ground would be within the provisions of the law, while limestone, an- equally necessary constituent element in the manufacture of metallic iron, would not. Upon what principle can such a distinction be justified or sustained ?

The testimony is not printed and we assume that the trespass was committed knowingly and that the defendants were liable, under the terms of the act, to the imposition of treble damages, as they were held to be by the trial judge in the court below. All the specifications of error relate to the one question. The case was carefully tried and reconsidered on an argument on the motion for a new trial. It does not appear that the liability, under the act of 1876, was denied at the trial. *496 The question was considered, however, on the argument for a new trial and is fairly raised by the assignments of error. Regarding it as the main object of the act and the intention of the legislature to preserve inviolate the boundary lines between adjoining owners, we have no difficulty in reaching the conclusion that the act applies to open quarries or mines as well as to those which are underneath the surface of the ground. Indeed, it would seem as if the act should apply with greater force in the former case than in the latter, for it is much more easy to ascertain where a boundary line is upon the surface of than underneath the ground.

Judgment affirmed.

W. W. Porter, J, dissents.