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make. Here the possession of the owner was known. estate in which it was at work was known; and the defendant was in its service, contributing by his own labor to the development of the mineral estate and to the maintenance of his employer's possession. This was notice by, and because of, the clearest knowledge of all the facts. McDonald had this knowledge when he first entered upon the surface, and he was affected by it. He knew of the actual severance of the estates in the Porter tract. He knew the owner was in the exclusive possession of the lower one, and himself assisted as an employé in the work by which that possession was made visible and notori

He never did anything to challenge its possession of the mineral estate. On the contrary, all he did, aside from the erection of a shelter on the surface, was as servant of the owner, under its direction, and in the clearest recognition of, and subserviency to, its title. Under such circumstances it is plain. that if he acquired a title to the surface of the six acres he claims, he could not clutch also the mineral estate, or any part of it that lay below the surface.

It would be inequitable and unjust to hold otherwise in this case. He had stolen in upon the surface while at work for the company that owned both it and the coal. He knew of the severance in fact of these estates, and aided in the general work that made the severance evident to the world. If entering under such circumstances he could acquire the surface, he is limited to it. Knowing all the facts he was bound, if he desired to acquire title to his employer's mine or any part of it, to enter upon the mineral estate at some point, take possession, hold it openly and adversely for twenty-one years, so that his position and claim could have been known to the owner. Any different holding would lead to very absurd results. It would require 73 us to hold that constructive notice is better than actual notice. Even this is short of a full statement of the result of the contrary doctrine, for in reality it would require us to hold that notice in fact had no significance and bound no one. If McDonald was not bound by the complete knowledge he possessed, and the opportunity for inquiry which his relations to the owner afforded him, it would follow that actual knowledge did not so much as put him upon inquiry. It would be much more reasonable to strike down the constructive notice which the law raises from the recording of a deed than thus to put it out of the power of an owner to protect himself by the clearest disclosure of his possession of his estate, and its purpose, to one

of his own employés. But it is said that the company was not engaged in mining immediately under the six acres of surface occupied by McDonald, and that there was considerable unmined coal in place directly below his inclosure. McDonald entered upon the surface of the Porter tract, knowing of the severance of the coal under it from the surface. The plaintiffs' mineral estate was protected as fully by this actual knowledge as it would have been by constructive notice; and no title by the statute of limitations could be acquired within the limits of that estate without an entry upon it. An entry upon another estate, that upon the surface, can have no effect outside the estate entered. If there is no severance an entry upon the surface will extend downward and draw to it a title to the underlying minerals; so that he who disseises another and acquires title by the statute of limitations will succeed to the estate of him upon whose possession he has entered. But if a severance is made before his entry, and he has notice of that severance, either by the record or by the state of the possession acquired both by observation and by years of service in the employment of the owner, his entry upon either of the estates will not affect the other. Possibly the question of the extent of the possession of a trespassing miner acquired by reason of his entry upon the mineral estate may sometime be presented. If so it will be time to consider it when it comes before us. It is not in this case. As applicable to the facts now before us, we hold that the Porter tract, or so much of it as was accessible from the pit's mouth in use, so that coal could be mined and removed therefrom by the ordinary methods of mining, was in the actual 74 possession of the plaintiffs, and that no inclosure upon the surface of that tract by one who had notice of the severance would draw to it any part of the mineral estate within its limits. This disposes of the suggestion that the unmined coal under the six acres has been, or could be acquired by McDonald by virtue of his possession on the surface. He acquired the surface because he put his actual possession against the constructive possession of the owner. He did not acquire the coal because he had actual notice of its severance from the surface by the owner. This limited his possession to the estate on which he entered. These views require us to reverse the decree of the court below, to restore the preliminary injunction, and, upon the facts that are undisputed, to make the injunction perpetual. The costs of this appeal to be paid by the appellees.

MINES-SEVERANCE OF TITLE TO SURFACE AND MINERALS UNDERNEATH-ADVERSE POSSESSION.-The surface of land and the minerals underneath may be dissevered in title and become separate tenements: Lillibridge v. Lackawanna Coal Co., 143 Pa. St. 293; 24 Am. St. Rep. 544, and extended note. Prima facie the owner of the freehold has a right to the mines and the minerals underneath, but this is only a presumption of law that may be rebutted by showing a distinct title to the surface in one, and to that which is underneath in another: Riddle v. Brown, 20 Ala. 412, 56 Am. Dec. 202. Possession of the surface of land for more than twenty-one years does not carry with it the possession of minerals below it, where the title to the latter had been severed from that of the surface by deed: Caldwell v. Copeland, 37 Pa. St. 427; 78 Am. Dec. 436, and note.

SAYLOR V. PENNSYLVANIA CANAL COMPANY.

[183 PENNSYLVANIA STATE, 167.]

CORPORATIONS-PUBLIC DUTIES-BILL TO ENFORCE. A bill in equity to enforce the performance of public duties by a corporation cannot be maintained by a private party in the absence of a special right or authority.

CORPORATIONS-RIGHT OF PRIVATE PARTY TO ENFORCE PUBLIC DUTIES.-A private party cannot maintain an action to recover damages from a canal company for failure to reconstruct part of its canal destroyed by flood, on the ground that he is thus prevented from using his canal boat at a profit. The right to demand and compel the canal company to reconstruct its canal is a public right alone, and no private citizen can enforce it without special injury to himself.

Trespass to recover damages alleged to have been sustained by reason of the negligence of the defendant in not keeping in good repair that part of its canal, known as the Juniata division and extending from Millerstown dam to Newton Hamilton dam, a distance of fifty-four miles, within a reasonable time, after June 1, 1889, at which time said part of such canal was destroyed by a disastrous flood. Plaintiff was at the time mentioned the owner of a canal boat and engaged in the business of boating therewith. He had established a regular, and certain trade upon that division of the canal in question by which he was enabled to make large gains and profits with his boat. The failure of the defendant company to keep the said portion of its canal in good repair and navigable condition rendered plaintiff's boat almost valueless and destroyed the greater part of his business. The statute referred to in the opinion provided that the said canal company, "shall be bound ever after to keep in good repair and operating condition the line of said canal," including the division in question, and the

same shall be and remain forever a public highway for the use of all persons or companies engaged, or wishing to engage, in the business of the transportation of tonnage or passengers, they first paying just and fair charges therefor." Verdict and judgment for defendant. Plaintiff appealed.

W. H. Sponsler, for the appellant.

B. F. Judkin and L. E. Atkinson, for the appellee.

172 MCCOLLUM, J. It was held in Buck Mountain Coal Co. v. Lehigh Coal etc. Co., 50 Pa. St. 91, 88 Am. Dec. 534, that a bill in equity to enforce the performance of public duties by a corporation cannot be maintained by a private party in the absence of a special right or authority. Thompson, J., in delivering the opinion of the court said: "There are many authorities in England and in this country which deny the right of private parties, in their own names-in the absence of special laws when their interests are only in common with the public, to compel the performance of a duty to the public. The reason is that if one individual may interpose, any other may, and as the decision in one individual case would be no bar to any other, there would be no end to litigation and strife. The general laws of order, so necessary to good government, forbid anything like this." It follows from the decision in the case cited that the plaintiff in the case under consideration cannot maintain an action to compel the performance by the Pennsylvania Canal Company of the duty imposed by the act of May 16, 1857: Pub. Laws, 519. The commonwealth may compel it, but a private citizen cannot. The learned counsel for the plaintiff concedes this much, but contends that a party who is injured by the company's neglect to perform it may have an action for damages. The duty of the defendant company undoubtedly was to keep the canal open and in repair as a public highway, "for the use and enjoyment of all parties desiring to use and enjoy the same." That portion of the Juniata division of the canal to which the contention of the plaintiff relates was virtually destroyed by the flood of 1889. It has not been navigable since, and the company has made no effort to reconstruct it. It extends from the Millerstown 178 dam to the Newton Hamilton dam, a distance of fifty-four miles. No claim is made that prior to the flood referred to the company was remiss in the performance of its duty to keep this canal in repair. It was not therefore responsible for injuries occasioned by the flood: Pennsylvania R. R. Co. v. Patterson, 73 Pa. St. 491, and Pennsylvania Canal Co. v. Burd,

90 Pa. St. 281, 35 Am. Rep. 659. The plaintiff's boat was not destroyed or injured by the flood or by the failure of the defendant company to reconstruct the canal between the points above mentioned. He could not after the flood use his boat for the transportation of goods and passengers between these points, nor could any other lessee or owner of a boat use his for a like purpose. The business in which the plaintiff was engaged was open to all persons using or desiring to use the canal for the purpose for which it was constructed. The privilege he exercised and enjoyed was not special or peculiar, nor was the injury he alleges he sustained by the neglect or failure of the company to repair or reconstruct the highway it was required as a purchaser to maintain. The privilege was such as any person who chose to exercise it was entitled to, and the injury done by the abandonment of the highway was not to the plaintiff alone, but to him in common with the public. The difference, if any, was only in degree, and this will not sustain his suit.

The cases cited by the plaintiff from our own reports are plainly distinguishable in their facts from the case under consideration, and are not applicable to it, as an examination of them will clearly show. It follows from what has been said that the learned court below did not err in directing a verdict for the defendant.

Judgment affirmed.

CORPORATION-PUBLIC DUTIES-LIABILITY FOR NONPERFORMANCE-MANDAMUS.-In an action against the proprietors of a canal who were bound by their act of incorporation to construct their canal so deep and wide that rafts of a certain description could pass through, when these could pass the river with which it was connected; it was held that they were liable to the owner of a raft of such description, for which they had received toll, for all the damages he sustained in consequence of the canal not being sufficient to allow the passage of the raft, without evidence that it could have passed the river: Riddle v. Proprietors, 7 Mass. 169; 5 Am. Dec. 35. See, also, Thayer v. Boston, 19 Pick. 511; 31 Am. Dec. 157, and note. Mandamus is the usual method of compelling corporations to perform their duties, and may issue for the benefit of private persons as well as for the public: Monographic note to City of Potwin Place v. Topeka Ry. Co., 37 Am. St. Rep. 318, 319.

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