Grubb v. Grubb , 74 Pa. 25 ( 1873 )

The opinion of the court was delivered, July 2d 1873, by

Agnew, J. —

This was an action of partition by the heirs of Edward B. Grubb, in which the defendant pleaded the general issue and specially that the tract of land described in the declaration as an estate known and called “Mount Hope,” does not constitute the entire Mount Hope estate, but a part of it only, and that the undivided one-sixth of three mine-hills, known as the Cornwall ore-banks, have been owned, used and held together with it, constituting one single estate.

This plea the plaintiffs traversed, and raised an issue of fact, whether the undivided one-sixth of the Cornwall ore-banks formed part of the Mount Hope estate. The plaintiffs called for and gave in evidence a deed from Clement B. Grubb to Alfred B. Grubb, dated 29th October 1845, reciting that the Mount Hope estate was then owned in common and equal interests between Edward B. Grubb and Clement B. Grubb. This deed described the same property set forth in the declaration in this case, and in addition thereto conveyed the following mining right, viz.: “ Together also with the right, title and interest, so far as the said Alfred B. 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, take and carry away, for the use and advantage of said furnace, iron ore, out of and from three certain mine-hills in Lebanon township, Lebanon county, bounded, &e., known and called by the name of the Cornwall Ore-banks, and held as a tenancy in common with the heirs of Thomas B. Coleman and James B. Coleman, deceased, with ingress, egress and regress to and from the said mine-hills and every part thereof, for the purpose only of procuring ore for the said Mount Hope Furnace ; but for so long and for such time only as the said furnace can be carried on and be kept in operation by means of charcoal.” The plaintiffs rested on this deed, it being admitted they were the children of Edward B. Grubb. The defendant, for the purpose of showing that the one-sixth of the Cornwall ore-banks was in fact a part of the Mount Hope estate, then offered in evidence the record of a partition to February Term 1836, between Edward B. Grubb ánd the other children of Henry B. Grubb, deceased, in which the premises called Mount Hope, including as a part thereof the one-sixth of the mine-hills, called Cornwall Ore-banks, were awarded to Edward B. and Clement B. Grubb. The court rejected this offer and excluded the record. The defendant then proposed to prove that the ore for the use of the Mount Hope Furnace had been exclusively derived from the Cornwall Ore-banks, and that the Mount Hope estate, with these ore-banks, was worth $130,000, but without $30,000. This offer was also rejected, and the court directed a verdict for the plaintiffs upon the evidence.

In consequence of the course the argument took, it has been necessary to state the attitude of the case thus precisely, in order to extricate it from the volume of extraneous matter introduced by the defendant below. I have no doubt that the voluminous history of the title to the Mount Hope estate contained in the paper-books, down to the deed from Clement B. to Alfred B. Grubb, proves that it included the undivided one-sixth of the mine-hills called Cornwall. But this deed separated the interest of Clement B. Grubb in the mine-hills from the remainder of the Mount Hope estate, which passed by his deed to Alfred B. Grubb. By this conveyance he granted to. Alfred only a special and limited right or privilege of taking ore for the use of the Mount Hope Furnace, retaining in himself the corporeal estate in the Cornwall mine-hills,' which he did not convey. Clement and not Alfred was therefore the co-tenant of Edward B. Grubb in the mine-hills. The court then was right in rejecting evidence of the pre-existing state of the title and unity of the mine-hills with the Mount Hope estate, and in holding that under the deed of 1845, Alfred B. Grubb did not hold these ore-banks in common with the children and heirs of Edward B. Grubb. But it is argued, with much apparent force, this ought not to be, for the law will not suffer so great a wrong to be done to Alfred as to cut off the Mount Hope Furnace from the mines which supply it with ore, thereby sacrificing,' according to the rejected offer, $100,000 in the value of the Mount Hope estate, for it is worth but $30,000 without the mines, and the right otherwise would be worth nothing, for his privilege is annexed wholly to the Mount Hope estate. If this be true, then there must be a wrong somewhere under an apparent form of right. But we think the error is in assuming that by the partition in the mode being pursued, the mining privilege of Alfred B. Grubb will be severed from his estate in the Mount Hope Furnace. This involves a consideration of the nature of his right, and the incidents flowing from it.

Without- discussing at present the distinction between an easement and a right of profit a prendre, we may say that the mining right of Alfred B. Grubb is clearly a privilege annexed by the deed of Clement B. Grubb to the interest he conveyed in the Mount Hope estate, and will pass with it as appurtenant thereto. ■That it is not a right of profit a prendre in gross, is manifested by the terms of the grant, for it is a right only to take ore for the use and advantage of the Mount Hope Furnace, and the right of ingress, egress and regress is confined to the purpose of procuring ore for the furnace, and that so long only as the furnace shall be operated by means of charcoal. That this is not a grant of the minerals themselves in place, is equally clear from the language of the grant, and is proved also by the cases of Funk v. Haldeman, 3 P. F. Smith 229; Huff v. McCauley, Id. 206; Johnstown Iron Co. v. Cambria Iron Co., 8 Casey 241; Grubb v. Guilford, 4 Watts 223; Brant v. McKelver, 6 Harris 70; Caldwell v. Fulton, 7 Casey 475; Washb. Easem., ed. 1871, p. 10. Not being either a profit a prendre in gross, or an estate in the ore itself, it must rank in that class of easements wherein a right granted out of other land is expressly annexed to land.

A right of profit a prendre, which may be held apart from the possession of land, differs therein from an easement, which requires a dominant tenement for its existence: Bainb. Mines, ed. 3.871, p. 237. But a right of profit a prendre, if enjoyed by reason of holding another estate, is regarded in the light of an easement appertenantto such other estate: Washb. Easem., ed. 1863,p. 7. And, says Mr. Justice Strong, in Huff v. McCauley, supra, 209, some modern decisions have called it an easement, though it was a privilege on another man’s land with profit; and he refers to Ritger v. Parker, 8 Cush. 145, and Post v. Pearsall, 22 Wend. 425. It is immaterial, however, whether we call it an easement or a right of profit a prendre annexed to land. It is the same in nature, and is such a right as can be annexed to other land by express grant, and will pass as appertenant to it. Even land itself, under some circumstances, may be so annexed to other land as to pass as an appertenant: Murphy v. Campbell, 4 Barr 480, 484-5; Swartz v. Swartz, Id. 353; Cope v. Grant, 7 Id. 488; Blain’s Lessee v. Chambers, 1 S. & R. 169; Pickering v. Stapler, 5 S. & R. 107; Hill v. West, 4 Yeates 142, 146; Grubb v. Guilford, 4 Watts 244. In this case the right is incorporeal, not being a grant of the ore ,in place, but of a mere right to dig and take it away for a special' use, and is clearly annexed to the Mount Hope estate by express terms.

The declaration sets forth the Mount Hope estate with the appertenances, in defining the respective interests of the parties, and the writ de partitione faciendo will necessarily pursue the same description, and this will be followed by the final judgment in the same way. It follows that the mining right of Alfred B. Grubb will certainly pass with his interest in the Mount Hope estate, according to the above authorities, as appertenant to it, and consequently it must be valued and appraised along with the Mount Hope estate. It adds to the value of the land on which the furnace is erected, in the same way that a right to back water on other lands adds to the value of a mill; or an alley, or right of way, appertenant to a house in a city, adds to the value of the dwelling. In pursuing the partition in this mode no injustice can be done to the defendant, as the inquisition is under the control of the court, and may be set aside if the jury fail to make the requisite valuation.

It is proper, before concluding, to say we have considered the objection so strongly pressed, that -plaintiffs had shown no title in themselves, because Edward B. Grubb, their ancestor, was no party or privy to the deed from Clement B. to Alfred B. Grubb, and could not be estopped by the recital in it. But the recital that Clement B. and Edward B. Grubb were co-tenants in common in equal interests, is evidence, not on the ground of estoppel on either side, but simply as the admission or acknowledgment of Clement B., under whom Alfred B. Grubb derives title. Being a solemn declaration in writiug of the tenancy in common, it is prímá facie evidence or presumptive of the title of Edward B. Grubb, and stands until it is disproved, just as in many similar cases.

Implications of title are not uncommon even in ejectment, where the plaintiff must recover on the strength of his own title: Taylor v. Dougherty, 1 W. & S. 324; Hastings v. Wagner, 7 Id. 216. Thus, where both parties claim under the same person, neither is bound to go behind the common source of title: Riddle v. Murphy, 7 S. & R. 230. A deed from the commissioners to sell the lands of John Nicholson, under the lien of the state, was primá facie evidence of title in him: McHenry v. McCall, 10 Watts 456. Seisin ;and a descent cast, or a devise, are primá facie evidence of title: West v. Pine, 4 Wash. C. C. 691; Cook v. Nicholas, 2 W. & S. 27; and more to the point is Patton v. Goldsborough, 9 S. & R. 47, where it was held that it was competent to prove the verbal declar■ations of Dr. Smith, that the lot for which ejectment was brought was one of the four lots conveyed to his daughter by his deed of May 1783, the deed having failed to recite the numbers, and the original plan being mislaid, on which it was said he had marked her name within the lots.

Upon the whole case we discover no error, and the judgment is affirmed.