St. Vincent's Roman Catholic Congregation v. Kingston Coal Co. , 221 Pa. 349 ( 1908 )

Opinion by

Mr. Justice Mestrezat,

The facts of this case are not in dispute and are correctly stated in the opinion of the learned trial judge. The only question raised by this appeal is whether a lease for years is within the purview of the recording acts of this state so as to vest an estate for years in the lessee without his entering into possession. The learned court below answered the question in the affirmative, and its thorough discussion of the question vindicates its conclusion.

The fee simple title to a large tract of land including the premises in dispute was in Gaylord and others in 1866. By a written instrument dated January 9 of that year and recorded in March, 1869, the owners leased about five acres of the tract to James Dooley for a term of 999 years, excepting and reserving all the coal and minerals with the right to mine and remove all and every part thereof without liability for any injury or damage done the surface. By a lease, dated September 29, 1871, and recorded Januarj»- 8, 1872, Gaylord and others demised to the predessors in title of the defendant company all the coal in and under their land including the lot claimed by the plaintiffs in this action. This lease grants the right to mine and remove all the coal, but does not relieve the lessee from the obligation to support the surface nor release the lessee from damages for injury that might result to the surface from mining1 operations. The plaintiffs claim title by adverse possession which began in 1874, and has continued without interruption since that time to the present. The lot has been for many years and is now used as a cemetery by the plaintiffs.

The plaintiffs filed this bill to enjoin the defendant company, the owner of the coal, from mining and removing the coal in such manner or way as to affect the superincumbent surface. The plaintiffs’ contention is that by the lease to Dooley there passed to him only an interesse termini and not an estate for years in the land, because of his failure to enter into possession of the premises under the lease. It is, therefore, claimed that the possession of the premises remained in the owners of the fee, and that plaintiffs’ subsequent entry and possession were adverse, not to Dooley but to the owners of the fee, and the title acquired by adverse possession under the statute is the title of the owners. If this contention be correct and the plaintiffs’ possession was adverse to the owners and not to Dooley, it follows that the defendant company whose rights to the coal accrued by the lease of 1871 which gave them no right to affect the surface by their mining operations had no authority to mine and remove the coal without leaving proper supports to sustain the surface in its natural and unbroken condition. The defendant’s contention, however, was, and it was sustained by the court below, that the execution and recording of the lease to Dooley prior to the inception of the plaintiffs’ title, vested in the lessee not simply an interesse termini but an estate for years, and that the title acquired by the plaintiffs’ adverse possession under the statute of limitations was the title of Dooley, the lessee, and not that of his lessors, the owners of the fee. This conclusion of the court was rested upon its construction of the act of 1715, which makes the recording of an instrument a substitute for a feoffment with livery, thereby “ making good the title and assurance of the said lands, tenements and hereditaments as deeds of feoffment with livery and seizin.” As pointed out in the opinion of the learned judge, the Dooley lease was within the intendment of the recording acts and the effect of recording it ivas equivalent to entry into possession under the lease and consequently vested in the lessee an estate for years.

Dooley had a leasehold estate in the surface, and the entry by the plaintiffs in 1874, five years after the recording of his lease, was adverse and hostile to his estate. It was Dooley’s possession that the plaintiffs attacked when they entered in 1874. The owners of the fee had no right at that time to the possession of the surface as against Dooley. So far as the facts disclose, the owners had not forfeited the lease and had no right to forfeit it. They have never asserted any right to forfeit the lease, and so far as this record shows the Dooley lease was in 1874, and has since been in full force and effect.

The contention of the appellants that the ouster of the tenant, Dooley, by the plaintiffs would be sufficient to start the statute running against the owners of the land is not tenable. It is true that the tenant cannot deny the landlord’s title, but it is equally true that the landlord cannot oust the tenant and repossess himself of the premises until the tenancy has been terminated. Until that event occurs, the tenant has the right to the exclusive possession under his lease against the landlord as well as against any and all other persons who may not have a superior legal or equitable right. Reversioners and remainder-men are not affected by the statute of limitations until the precedent estate has been determined and their right of entry accrues : Marple v. Myers, 12 Pa. 122. This proposition is obviously correct, as it would be most inequitable and unjust to permit the statute of limitations to run against the reversioners or remainder-men until their right of possession accrued and it could be enforced by a proper action. So long as their bands are tied and they are unable to assert their right of possession, they are in no default and the law imposes upon them no penalty. It is a universal rule, with no exceptions so far as we are advised, that the statute of limitations does not begin to run against a party until his right of action accrues.

Forfeitures are not favorites of the law, and although a cause of forfeiture exists, it will not be enforced in the absence of affirmative action by the lessor in a contest between the tenant and a third party. There is nothing whatever in this record to show any cause of forfeiture of the Dooley lease nor that the lessors ever contemplated a forfeiture of the lease and a repossession by them of the leased premises. The lessors had unquestionably the right to permit Dooley to exercise his rights under the lease notwithstanding he may not have complied with its terms. While they might have enforced a forfeiture at any time that it occurred, it was not compulsory upon them but wholly discretionary and at their pleasure; and if they failed to exercise that right, the plaintiffs, whose only title to the premises is adverse possession, are not in a position to enforce the lessors’ right of forfeiture.

The fears of the learned counsel of the plaintiffs that the graves of the dead may be desecrated do not appear to have any substantial foundation. The plaintiffs, and not the defendant company, instituted this action to determine the right of the defendant to remove the coal under the cemetery. The defendant, through its counsel, disavows any intention to exercise its right of withdrawing support from the surface, and thereby endangering the graves in the cemetery. By defending this action, the defendant does not necessarily declare its intention to remove all the coal under the cemetery and thereby break and injure the surface. Its title has been attacked by the plaintiffs, and it was, therefore, put upon the defensive and required .to protect the title or surrender it'to the plaintiffs. Neither sentiment nor any other consideration required it to submit to an attack made by a party who had no paper title to the premises, and who had record notice of the defendant’s title. We have no doubt of the sincerity of the defendant company in disavowing its intention to exercise its right to mine the coal so as to affect the surface of the cemetery lot.

The assignments of error are overruled and the decree is affirmed.