Transcanada Keystone Pipeline, LP v. Nicholas Family Ltd. P'ship

<p>Appeal, No. 263, Jan. T., 1896, by plaintiffs, from decree of C. P. Lackawanna Co., Sept. T., 1894, No. 5, on bill in equity.</p> <p>Bill in equity praying for an injunction to restrain the defendants from mining coal under certain lands claimed by plaintiffs. Before Gunster, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned■ was in dismissing bill.</p> <p>It is well settled by numerous authorities both in this state and in England that, where a severance of the surface from the underlying strata of coal or other minerals has taken place, no possession of the surface constitutes any possession of the underlying strata: Plummer v. Hillside Coal & Iron Co., 160 Pa. 483 Kingsley y. Hillside C. & I. Co., 144 Pa. 618; 1 Am. & Eng. Eney. of Law, 262; Putnam Free School v. Fisher, 34 Me. 172; Caldwell y. Copeland, 37 Pa. 431.</p> <p>Title to any of the minerals, quite distinct from the title to the surface, may be shown by documentary evidence; in the absence of such evidence, or in opposition to it, title to them may be made out by proof of possession and acts of ownership under the statute of limitations. The acts of ownership, however, which constitute possession and confer title must be distinct from such as are exercised over the surface: Tyrwhitt v. Wynne, 2 Barn. & Aid. 554; Cullen v. Rich, Buller, N. P. 102; Rich v. Johnson, 2 Strange, 1142; Caldwell v. Copeland, 87 Pa. 427; Armstrong v. Caldwell, 53 Pa. 284; MacSwinney on Mines, 526; Tliew v. Wingate, 10 B. & S. 714; McDonnell v. McKinty, 30 Ir. L. R. 514; Dartmouth v. Spittle, 19 W. R. 445 ; Ashton v. Stock, L. R. 6 Ch. Div. 726; Seaman y. Yawdrey, 16 Yes. 392; Barnes v. Mawson, 1 M. & Sel. 84.</p> <p>To constitute a continuous possession of mines, it is only necessary that the operations be prosecuted as continuously as the nature of the business and the custom of the country permit: Stephenson y. Wilson, 50 Wis. 95; Wilson v. Henry, 40 Wis. 594.</p> <p>This was an ejectmen

<p>APPEAL from District Court, Ada County.</p> <p>An action to establish a right to the possession of a right of way over which to divert water cannot be maintained exclusive of the fight to divert water, especially as against one who has such right to divert. {Smith v. Hawkins, 110 Cal. 122, 42 Pac. 453.) There is only one way, so far as this controversy is concerned, to acquire the right to the possession of a right of way. over the public domain and that is as follows: “Whenever, by priority of possession, rights to the use of water for . . . agricultural .... purposes, have vested and accrued; .... the right of way for the construction of ... . canals .... is acknowledged and confirmed.” (17. S. Rev. Stats., sec. 2339.)</p> <p>Possessory rights to ditches and possessory rights to water may each have an existence independent of the other. That a person may convey a water right, reserving the ditch, or convey a ditch independent of the right to the use of the water accustomed to flow therein, is, we think, clearly within reason. A ditch is itself land. (Kinney on Irrigation, see. 224, and cases cited in note; Reed v. Spicer, 27 Cal. 58.) Interest in water ditch is real estate, and can only be transferred by deed, prescription or condemnation. (Burnham v. Freeman, 11 Colo. 601, 19 Pac. 761; Smith v. O’Hara, 41 Cal. 371.) For a case recognizing ownership of ditch in one person and ownership of watqp running therein in another, see ' Clifford v. Larrien (Ariz.), 11 Pac. 397. A ditch constructed on unoccupied public lands of the United States is held by grant, and the owner of such ditch does not forfeit his right thereto merely by nonuser. (Welch v. Garrett, ante, p. 639, 51 Pac. 405.)</p>

<p>Appeal from Lafayette Circuit Court. — Hon. C. W. Sloan, Special Judge.</p> <p>(1) There was no express grant on the right of way. The deed from Samuel Wilson to Caroline Mitchell described the ground by metes and bounds. A grant of land to or bounded by a street or alley, when there is none, where the strip is owned by the grantor, will give a right of way over the strip to the grantee. This we admit to be law. Moses v. Bock Co., 84 Mo. 242; Carlin v. Paul, 11 Mo. 32; O’Linda v. Lothrop, 21 Pick. 292; Toby v. Taunton, 119 Mass. 404; Lewis v. Beatie, 105 Mass. 410; Bodge v. Railroad,’ 43 N. J. Eq. 351. This claim under a grant is effectually disposed of by'the production of the deed from Samuel Wilson, claimed by plaintiff as lost. (2) A way by necessity can only arise where land is sold and there is no way of reaching it, except over the land of the grantor. Snyder v. Warford, 11 Mo. 514; Trash v. Patterson, 29 Me. 499; Perman v. Mead, 2 Mass. 203; Wisler v. Hershey, 23 Pa. St. 333; Kripp v. Curtis, 71 Cal. 62. (3) But here the land conveyed fronted sixty feet on a public street on one side, and forty feet on another on a- public alley. Mere convenience and usefulness will not establish a right of way of necessity. Colville v. Judy, 73 Mo. 651; Cox v. Tipton, 18 Mo. App. 450; Oliver v. Pitman, 98 Mass. 46; Anderson v. Buchanan, 8 Ind. 132; Moses v. Bates, 74 Ala. 376. (4) Nor does the right exist when one can get to his land by going over his own land, no matter how inconvenient it may be; or when the highway can otherwise be reached. McDonald v. Tindall, 3 Rawle, 492; Ogden v. Grove, 38 Pa. St. 487; Francis’s Appeal, 96 Pa. ' St. 200; Parsons v. Phillips, 68 N. Y. 62; Pentland v. Keep, 41 Wis. 490; Gayetty v. Bethune, 14 Mass. 49; Bussell v. Jackson, 2 Pick. 574. (5) When lot runs from one street to another and is then divided, no right of way, from one part over the other to street from which it is cut off, exists. Schyniser v. Phelps, 62 How. Pr. 1; Nicholas