Rockwell v. Warren County

<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>Error to the District Court, Carbon 'County; Hon. David H. Craig, Judge.</p> <p>The material facts are stated in the opinion.</p> <p>Although the statute implies that an injunction may be granted without notice, we submit that the practice of the District Court in granting an injunction or any other extraordinary remedy on an ex parte hearing should be discouraged. Neither the letter nor the spirit of the statute intends that an injunction may be granted without notice on such a doubtful and uncertain showing as made in the petition in this case. The power should not be so exercised, except to prevent injuries that are imminent and irreparable, and certainly the court should not interfere where the plaintiff’s right is doubtful or where an action at law .or in equity prosecuted in the ordinary mode will afford adequate redress. In the case at bar there is no allegation that injury is likely to occur before a hearing can be had, nor that the security will be insufficient if the alleged fixtures be removed. The allegation that the articles mentioned in the petition are a part of the realty is a mere conclusion. It sufficiently appears from the petition that.they were at one time at least personal property, and no showing is made as to the manner in which they became a part of the realty. It does not appear by the petition or the affidavits* that these articles were specially designed for the real property mentioned in the mortgage. It appears affirmatively from the petition that the articles were only necessary to carry on a business theretofore conducted on the premises, from which it may be assumed that they are not necessary for any other business that might be conducted on the premises. If that be true then no argument would seem to be necessary on the point that the articles retained their character as personalty and became in no way subject to the mortgage. (Fortman v. Goepper, 14 O. St. 567; Wagner v. R. R. Co., 22 O. St. 577.) It is therefore submitted that

<p>Appeal from a judgment of the superior court for Spokane county, Kennan, J., entered February 8, 1909, upon granting a nonsuit at the close of plaintiff’s case, dismissing an action to enjoin the maintenance of a drain, and for damages.</p>