McGowan v. Bailey, Wilson & Co. , 179 Pa. 470 ( 1897 )

Opinion by

Mr. Justice Dean,

On August 12, 1863, John McGowan, of Mifflin township, Allegheny county, died intestate, leaving a widow, this plaintiff, and thirteen children. At his death he was the owner of, and resided with his family on, a farm of about sixty-six acres, more than half of which was'underlaid with coal. After his death the widow continued to live on the farm down to the commencement of this suitthe ’other children conveyed'their interests to their three brothers, James, John and William, who by deed of August 3, 1868, with clause of general warranty, conveyed by metes and bounds all the coal under forty acres to John O’Neil, and his title became vested in these defendants by deed October 26, 1880. At the date of John McGowan’s death, there were two opened coal banks on the farm. In July, 1884, these defendants entered, put up valuable improvements, commenced mining and removing the coal and continued their operations down to the commencement of this suit. On October 20, 1893, the widow filed her bill against defendants, averring she was entitled to her statutory dower of one third of the rents and profits of the coal, and praying an account. Defendants by answer denied her- right of dower in the coal, and averred she had received'her dower find' support'from'the surface of the farm; further, that she knew of the conveyance by her sons and of defendants’ mining operations, yet prior to the suit, had made no demand for dower, nor had she offered to contribute any part of the expenses of mining; they further set up the plea of the statute of limitations. There were several pleas partaking of the nature of demurrers, such as want of jurisdiction, nonjoinder of children of John McGowan, and nonjoinder of warrantors of title, which were properly overruled, and James F. Robb was appointed master to first determine from the facts and law whether plaintiff was entitled to an account. He reported, she was, and a decree to that effect was made by the court below. Mr. Róbb becoming ill, John D. Shafer, Esq., was appointed in Iris stead, and he proceeded with the hearing, and stated an account, showing a balance due plaintiff of $4,900 with interest from date bill was filed. Both parties filed exceptions which were overruled by the court and the report confirmed, and from that decree we have this appeal by plaintiff.

All of appellants’ assignments of error bear upon two points, viz., the master’s findings of fact as to quantity of coal mined, and his conclusion as to the basis of computation; both, it is argued, are not watranted by the evidence or the law. The master’s finding of quantity mined was as follows: Area mined, 35 acres; quantity per acre, 105,000 bushels; number of bushels lump coal mined 3,675,000; slack coal mined 40,000 bushels per acre; total slack, 1,400,000 bushels. The defendants having other banks on adjoining land from which they were mining coal, it was impossible for the master to ascertain the exact output from this land by inspection of shipping or sales books; but the cubic feet mined, shows with proximate accuracy the quantity, and that method was adopted. The plaintiff claimed she was a tenant in dower, and was deforced of her dower by defendants, therefore they must account as trespassers.

It is not worth while to discuss the precise nature of the widow’s interest in this farm of which her husband died seized, and of which there had been neither appraisement nor partition, and give to it a name capable of a strict-legal definition. The act of assembly of 1833 declares: “Where such intestate shall leave a widow and issue, the widow shall be entitled to one third part of the real estate for the term of her life.” While it remains in this situation, no matter what the estate may be called after appraisement or partition, it is a freehold estate in the land, and this she enjoys in common with the children of her husband, whose interest is the remaining two thirds. There is no hostility in the ,estates which gives the right of enjoyment to either to the exclusion of the other. The land descending from a common source, the intestate husband and father, the statute declares the quantum of the estate, and plainly intends it shall be enjoyed according to their respective interests; and unless there be actual deforcement, the turning out or exclusion of her who is in lawful possession, all she is entitled to is an account from the children. Unless there be a severance of the inheritance, she cannot treat her cotenants as trespassers, merely because they have actively managed the common estate, and have received the whole of the rents or proceeds. These defendants being the grantees of the children, took precisely their place as cotenants with the mother. And the evidence shows clearly all parties so understood it. The mining proceeded without a word of objection on her part until nearly all the coal was mined out. She did not then proceed against them as trespassers, but filed this bill for' an account of her statutory thirds of the rents, issues and profits of which her cotenants had received the whole. The bill, evidently, from the averments and prayer, was framed under the act. of April 25, 1850, which provides “ that in all cases in which any coal or iron ore, mines or minerals have. been or shall be held by two or more persons as tenants in common, and coal, iron ore, or other mineral has been or shall be taken from the same by any one or more of said tenants respectively, it shall be lawful for any one of said tenants in common to apply by bill or petition in equity to the court of common pleas of the county in which the lands lie, praying that an account may be decreed and taken of all coal, iron ore, or other mineral taken by said tenants respectively; and said court shall thereupon proceed upon such bill or petition agreeably to the course of a court of Chancery, and shall have full power to make all orders .... that may appertain to justice and equity in the premises; and may cause to be ascertained the quantity and value of the coal, iron ore or other mineral so taken respectively by the respective parties, and the sum that may be justly and equitably due by, from and to them respectively, according to the respective portions and interests to which they may be respectively entitled in the lands.”

Here, both parties had an interest in the land; the defendants being one of the tenants in common, and as is said by Sharswood, J., in Coleman’s Appeal, 62 Pa. 252: “ A tenant in common exercises his undoubted right to take the common property, and he has no other means of obtaining his own just share than by taking at the same tim'e the shares of his companions. The value of the ore in place is therefore the only just basis of account.” But as in the case before him, no evidence had been given as to the value of the ore in place, the finding of the master that the value of the ore at the mine’s mouth, after deducting the expenses of" putting it there, was adopted as an equitable basis on which to state the account.

The master in this case determined that plaintiff was entitled to one third the value of the coal in place, and in this conclusion we concur. He further found that value was 40 cents per hundred bushels. The evidence before him justified the finding. He adopted as the quantity mined, the number of bushels of lump coal, making no allowance for slack coal. He bases this finding on the evidence that what is universally understood in that coal region or neighborhood by bank leave or coal leave, is lump coal only, the slack being worth but little, is never accounted for by the operator, nor payment exacted for it by the owner; that it is considered a by-product, and goes with the lump coal sold. While we do not adopt this conclusion as a rule' applicable to all cases of account between cotenants of coal mines, we think no injustice was done by invoking it in this case. For years, plaintiff asked no account, nor made demand for her share; it is a fair presumption she did not intend to exact more than was paid by other owners of coal in that region; if she intended to make an unusual demand, she should have asserted it sooner.

As to defendants’ plea of the statute of limitations, it cannot prevail. True, the three sons conveyed to O’Neil the predecessors of defendants in title the coal without reservation of their mother’s estate, in 1868, and the deed was put of record; but that was no assertion of a right hostile to her of which she was bound to take notice. As long as her possession was undisturbed, the paper title, even of record, did not impair her right, while the'same possession, being in the direct line of their title, was notice to defendants, that as to her third, her claim was unequivocal and unabated. It was not until July, 1884, that defendants entered upon the land and commenced mining the coal. Being in the undisturbed possession, no right of action could accrue until her cotenants’ liability to account for her share of the coal began; by reason of their relation in estate to her they had a right to mine and receive the money for all the' coal, including her third; this was therefore not an act hostile to, or in denial of her right. As to her third, they were merely trustees for her, and long before lapse of time raised a presumption of payment, she made a legal demand for an accounting. It has been held over and over again, since Dillebaugh’s Estate, 4 W. 177, that the “statute of limitations in such case is out of the question.” That the heir is a trustee as to her thirds ; that an alienee of the land is in no better situation than the heir, and that even the taking of a recognizance or other security on the land in proceedings in partition to protect her interest, is merely a collateral security for her statutory estate. 'We are of the opinion the master’s conclusion that plaintiff was entitled to one third of 40 cents on every hundred bushels of lump coal removed, or $4,900 was correct, but we do not concur in his finding that she was entitled to interest only from the commencement of the suit or filing of the bill. The master gives no reason except that she made no demand, for striking off the interest which is always computed on the balance due on an accounting, from the date it ought to have been paid. She was no more bound to demand, than they were to tender payment. They received the money of the common property, and as to the third of the value of the coal in place, were her bailiffs. The mean time found by the master, during which defendants had plaintiff’s money, was from July 1,1890; this was an unjust detention, nearly three years longer than the master allowed, and from that date they should pay interest. Therefore the decree is affirmed with the modification that interest on the $4,900 amount due, shall be paid from July 1, 1890, to date of this decree. :