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of land in Cornwall, the common acceptation of the word 'acre' there amounts to as much as a hundred of other counties. So a 'perch' in Staffordshire is as much as twenty perches in some other place. Therefore such words must be governed by the common and known acceptation of the people."

It goes without saying that the words, "bed," and "bed of coal,”. have been and are at times used as synonymous with "vein,” for geologies, dictionaries, and current speech recognize such use. But, in face of the practice of quarrying in common use in Luzerne county, in face of the fact that such a coal quarry was what Wilson had occupied and worked, and that such a quarry was what he afterwards occupied, it would seem clear that, when these men put, or the scrivener put, the word "coal bed” in the deed and described it as "on the Lackawanna creek,” and as “now occupied by said Wilson,” that term meant a quarry. This is illustrated by the deed of Thomas Fell to George Price and wife of January 15, 1821. By it Fell conveyed in fce simple 54 acres, “the northerly half part of lot No. 55 in the first division of said Pittston,” for $375. On the same day Price and wife, for the consideration of $1, conveyed to Fell "one equal half part of the coal bed now opened on the south part of the northerly half part of lot No.

together with a sufficient road and cartway to and from said coal bed, with liberty to work one equal half part of said coal bed at all times without interruption.” The conveyance of the whole tract by Fell for a substantial consideration, and the reconveyance for a nominal consideration of the half of the coal bed, shows that that term “coal bed" was used as a “quarry,” and not as a "vein." Now, this restricted character of a “quarry," which we regard as synonymous with “coal bed,” is referred to in Shaw v. Wallace, 25 N. J. Law, 462, where it is said:

"Now, a ‘mine,' properly speaking, is the pit or excavation in the earth from which the ore is taken. The term is certainly used to include the bed or vein of ore into which the pit enters, so far as may be necessary to the working of the mine; and the whole series of shafts and subterranean passages and the chambers connected with it. But neither in ordinary parlance, nor in strict terbnical language, is a 'mine' understood to indicate the entire ore bed with which the shaft may be connected. And by a 'quarry' we understand, not an indefinite extent of stone or rock which may be worked, but the spot where the rock is quarried. The ‘ore' may extend indefinitely, but the mine' is the pit from whence it is extracted."

It is proper to here note that the deeds from which extracts are made have not been the only ones selected because they supported any particular view, but the others have not been referred to because they did not throw any light on the case. For example, the deed from Cussie to Hepburn, of 1810, is the original title on which many of the other conveyances are based, and these must be considered in connection with the parent deed. Now, it is true the parent deed conveys "a certain coal bed or beds,” and in such subsequent deeds it seems that this term is sometimes treated as synonymous with veins; but it will be noted that there are also used in the original deed other words and terms which greatly enlarge that term. Thus, it conveys "a certain coal bed or beds in or upon lot No. 49, *

now in the possession of the said William Cussie, Jr., and all other beds or potts


of coal in or upon said lot of land,” and it further covenants that the grantee "shall have full right and lawful authority to enter upon said lot of land or any part thereof, and dig, raise, cart and carry away the coal in or upon said land, without let or molestation from him, the said William Cussie, his heirs or assigns, or from any other person or persons hereafter forever.”

From all these considerations, it seems to us that the parties to this deed had in view this quarry or stripping which Dr. Wilson had theretofore been occupying by operating, and that it was this quarry which was meant to be conveyed, for, to use the language of Judge Conyngham in the Gloninger Case, supra:

"It is difficult to conceive that these parties really supposed that the one was selling and the other buying the exclusive right to take all the coal upon the tract, or even in the one great vein."

Is it credible that, when these parties made this deed, they understood that, if Feltz, the grantor, found an outcrop of the vein back in the Keyser Creek Valley, or at any other place on his 334 acres, the conveyance of the coal bed "on the Lackawanna creek," "nowoccupied by the said Wilson,” would prevent Feltz from starting and occupying a coal bed himself possibly two miles back from that stream?

If we are correct in our conclusion that the intent of the parties, or the effect of the words they used, was not to convey the coal underlying the whole tract, it is then asked what was meant by such a conveyance? How far did Wilson have a right to take coa!? What line defines his right? And, because no exact line is fixed by the deed, it is therefore contended he was bound by no line, and the conveyance must be held to cover the entire tract. But that conclusion by no means follows. To require the court to read into this deed boundary lines is to assume the premise that the parties in 1823 meant that the deed was meant to limit by boundaries a certain inclosed area of coal. This, in our judgment, is just what the parties had no thought of doing in 1823. It must be observed that this deed is brought forward by the defendant to defeat an otherwise complete title vested in the plaintiff by sufficient deeds. The existence of this deed of 1823 is not of itself sufficient to defeat the plaintiff's title. Its efficacy in that regard lies in the fact that it must be shown, either by express words or by necessary implication, that it conveys the coal under the hundred acres in controversy, to which otherwise the plaintiff has shown title. Now, if the description in the deed is so indefinite, so incapable of application by lines and boundaries, that it does not certainly include the plaintiff's coal, and was not in 1823 meant to include the coal under the whole tract and cover the land embraced in this suit, it should not avail to defeat the plaintiff's title. It is contended, of course, that there are definitions of boundaries in the reference to tract No. 1; but we regard the phrase "on lot No. 1” as qualifying the term “coal bed on the Lackawanna creek.” It united with the term, "on the Lackawanna creek,” to locate the coal bed "now occupied by the said Wilson,' as being on a certain stream and tract. It seems to us these qualifying terms, “on the Lackawanna creek,” and “on lot No. 1 in Providence township,” are descriptive terms to locate the coal bed, and not to de fine the limits or extent of the vein in which that coal bed was made.

Apart from so defining and describing the location of the coal bed, it seems to us these qualifying words have no other effect, and that the deed would have the same effect if it read, "all that certain coal bed on the Lackawanna creek, in Providence township, now occupied by John Wilson,” for oral testimony would show that such coal bed then occupied by Wilson was located on the Lackawanna creek and on lot No. 1.

But, returning to the question referred to, we remark that one of the requisites to a deed is certainty of its subject matter. 2 Blackstone, 298. Now, if the parties have omitted to define what was meant, and to define it by boundaries and limits, to that extent it lacks the certainty requisite to a conveyance. From the surrounding circumstances and conditions when this deed was made, there is nothing to require a construction that this grant covered 334 acres of coal laterally in order that John Wilson should have full enjoyment of this grant. Nor is the court called upon to say just what the deed did convey to John Wilson. That it conveyed to him the coal bed on the Lackawanna creek is certain. How far back from the Lackawanna creek that grant extended it was for the defendant to show. This burden was upon him, and therefore we say, adapting the language of Henry v. Huff, 143 Pa. 561, 22 Atl. 1046, to this case:

"The only real question raised was: Where is the eastern line of the defendants' coal bed? Upon this question the defendant had the burden of proof, and it was its duty to show that such eastern line inclosed the coal claimed by the plaintiffs. Failing to do this, it failed in its defense, and the plaintiffs are entitled to recover."

Before closing, we deem it proper to say that we have not overlooked the defendant's alleged title by adverse possession. The vein in controversy underlying this tract of 100 acres was not taken possession of or mined by the defendant, and there is no evidence of any such open, notorious, continuous, and hostile possession thereof as would create a 'title of that character. The entries that were made were very limited in character, were not continuous, and knowledge of them was not brought home by any surface indications, or indeed in any way to Isaac B. Feltz, who resided on the surface, or to any person claiming under him. It is further pr per to note that, as grounds for a new trial, numerous rulings of the court during this protracted trial are set forth. As the case took shape, both parties conceded there were no questions of fact for a jury to pass upon, and as we have carefully refrained from using, in this opinion, any facts, papers, maps, or evidence objected to by the defendant, concerning which any question is raised on the motion for a new trial, it will be obvious that no harm was done to the defendant by the rulings of the court in that regard, and therefore, as well as on the ground that we find no error in the rulings, the motion for a new trial will be refused.

After careful consideration, we are therefore of opinion that the motion of the defendant to enter judgment in its favor on the reserved point and non obstante veredicto should be denied. The clerk is therefore directed to enter judgment on the verdict in favor of the plaintiff and against the Delaware, Lackawanna & Western Railroad Company and Isaac B. Feltz, the defendants.

CARVER et al. V. SAN PEDRO, L. A. & S. L. R. CO.

(Circuit Court, S. D. California, S. D. June 23, 1906.)

No. 1,219.


An obstruction to navigable waters may be enjoined at suit of a private person who suffers a special injury therefrom, whether such injury be different in kind from that of the public at large or only greater in degree.

[Ed. Note.–For cases in point, see Cent. Dig. vol. 37, Navigable Waters,


A patent for land does not by implication convey title to the soil under a navigable stream, although such stream is embraced within the limits of the grant, so as to affect the status of the stream as a navigable water

way. 3. SAME.

Even a grant of the bed of a navigable stream to a private owner leaves the stream subject to the public right of navigation and the control of Congress.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 37, Navigable Waters,

88 219, 220.) 4. SAME.

No act of or grant by an executive department of the United States can affect the right of the public to use the waters of a navigable stream for purposes of navigation, nor the power of Congress to control the same.

[Ed. Note.-For cases in point, see Cent, Dig. vol. 37, Navigable Waters, $ 43.] 5. INJUNCTION-RIGHT TO PRELIMINARY INJUNCTION.

The character of an injunction, as to whether it is mandatory or preventive, is determined by the situation at the time of tire filing of the bill therefor, and the right of a riparian owner on a navigable waterway to a preliminary injunction to restrain the obstruction of such waterway by a bridge, which was not standing when the bill was filed, is not affected by the fact that it had been temporarily removed and was thereafter replace !. so that the injunction would be mandatory in effect.

In Equity. On demurrer to bill and order to show cause. L. H. Valentine, Joseph H. Call, Long & Baker, and Seward A. Simons, for complainants.

J. A. Gibson, A. S. Halsted, and T. E. Gibbon, for defendant.

WELLBORN, District Judge.. The uncontradicted evidence, written and oral, adduced on this hearing, shows the following facts: That Cerritos slough is navigable; that defendant's bridge was built without authority of Congress or the Legislature of California, and obstructs the navigation of said slough; that complainants, respectively, own lands situated on said slough, and are engaged in business enterprises dependent upon its navigation, and are suffering from the obstruction of such navigation serious damages, which from their nature are incapable of estimation, and are therefore irreparable. Heilbron v. Canal Co., 75 Cal. 426, 17 Pac. 535, 7 Am. St. Rep. 183. From these facts it necessarily results that said bridge is a public nuisance, and the first inquiry, purely one of law, is as to the sort of injury which will

justify resort by a private person to a court of equity for abatement of such a nuisance.

It is firmly established by a long line of federal decisions that an obstruction to navigable water may be enjoined by a private person who is injured thereby differently from the general public, either in degree or kind. Georgetown v. Alexander Co., 12 Pet. 98, 9 L. Ed. 1012; Pennsylvania v. Wheeling, etc., Bridge Co., 13 How. 564, 14 L. Ed. 249; Union Pacific Railroad Co. v. Hall, 91 U. S. 343, 355, 23 L. Ed. 428; Baird v. Shore Line Ry. Co., 2 Fed. Cas. 427 (No. 758); Works v. Junction R. R., 30 Fed. Cas. 626 (No. 18,046); Hatch v. Wallamet Iron Bridge Co. (C. C.) 6 Fed. 326; Id. (C. C.) 6 Fed. 780. This last case was reversed by the Supreme Court, but the reversal was on jurisdictional grounds, not affecting the point now under consideration. Willamette Iron Bridge Co. v. Hatch, 125 U. S. 2, 8 Sup. Ct. 811, 31 L. Ed. 629.

Whitehead v. Jessup (C. C.) 53 Fed. 707, relied on by defendant, it must be conceded, is not in line with the cases above cited, but supports defendant's contention that, in order to maintain the suit, it must appear that the defendant's bridge causes some injury to the complainants different in kind from that sustained by the general public who navigate the waters in question. In the case last named, paragraph 2 of the syllabus is as follows:

"One who seeks by suit in his own name to compel the removal of an obstruction to navigable waters must show some injury to himself. caused thereby, different from the injury sustained by the general public who navigate such waters. Hence, where complainant, a riparian owner, had free access to the navigable channei in front of his land, held, that he could not, in bis own name, maintain a suit to compel the removal of a bridge over such channel, half a mile from his land, though his boats, in navigating to and from adjacent waters, were obstructed by such bridge."

Under this view of the law, a person who owns land of inconsiderable value immediately in front of the bridge and abutting upon the slough, if at all injured, no matter how slightly, might have equitable relief against the public nuisance; whereas, another riparian owner, but a few rods above the bridge, with large wharves for the accommodation of the shipping interests of the general public, and with large manufacturing establishments dependent for their operation entirely upon the navigation of the waterway, and costing hundreds of thousands of dollars, would be wholly remediless. If the question were an open one in this court, I could not subscribe to such a doctrine. The distinction which allows a remedy in one case, but denies it in the other, is unsubstantial, and the right to the free use of navigable waters for trade and commerce is of such transcendent worth to individuals, as well as the state, that the remedies for its enforcement ought not to be abridged by technicalities or overnice refinements. The just rule, it seems to me, is that relief should be granted in all cases where there is special injury to the complainant, whether the injury complained of be different in kind from that of the public at large or only greater in degree, and this unquestionably is the doctrine of Pennsylvania v. Wheeling Bridge Co., supra, as the Supreme Court itself subsequently declared in the following unmistakable terms:

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