
    PAYNE VS. ULMER.
    Where A has a right to take ice from certain canal levels, he cannot maintain trespass against B for taking ice, which had never been in A’s actual possession for the same levels.
    A question of law was reserved and noted by the judge on his notes, but not by the stenographer ; the Court below ordered it to be entered on the record after a writ of error was filed.
    Whether there is any evidence to submit to the jury is a question of law for the Court.
    Error to Common Pleas of Schuylkill County. No. 204, Jamtary Term, 1881.
    This was an action of trespass q. c.f. d. b. a. for a quantity of ice. Payne claimed title under the following license : “Reading, January 24, 1874. Mr. J. M. Payne is permitted to take ice from the canal levels above Schuylkill Haven, to be loaded into boats or shipped by rail to Philadelphia, provided no previous grant has been given by proper authority to other parties. James F. Smith, Chief Engineer of Canals. A verdict was rendered for Payne for $90.12| on March 25, 1879. The same day “the Court directs a rule to be entered to show cause why judgment should not be entered for the defendant, notwithstanding the verdict.”’ On September 6, 1880, the rule was made absolute and judgment, entered for defendant' in the following opinion by
    Bechtel, J.:
    This .is an action of trespass guare clausum, fregit d. b. a., and the defendant has entered a plea of “not guilty.” The more important question to be determined is, has the plaintiff shown such title or actual possession or right to immediate actual possession, flowing from a right of property, as will enable him to maintain his action. The defendant made no claim of title or authority, and. occupies the position of a trespasser, and consequently the plaintiff contends that he cannot set up the title of another to defend himself from the consequences of his tortious acts. The authorities upon this subject are numerous, and among them we find the cases of Stambaug-h vs. Hollobaugh, 10 S. & R. 357 ; Townsend vs. Kerns, 2 Watts, 180, and Bigelow vs. Lehr, 4 Watts, 377. Prom these cases we gather, as the general doctrine, that a party in possession may maintain trespass against a wrongdoer, and the latter on the plea of not guilty, cannot shelter himself under the title of a third person. He should specially plead such title, and aver authority in himself to enter. The action of trespass is founded on possession, which has always at least a qualified property annexed to it, which is valid until a better title is shown. The plain-, tiff, having shown a possession of property, the subject of trespass, the defendant to maintain his defence must show a better right in himself, he may not rely on the plaintiff’s want of title. It will be noticed from these authorities.that it is only after the plaintiff has shown a title or possession in himself, that he can object to the defendant sheltering himself under the title of a third party. They do not in any respect tend to show that the defendant may not dispute both the title and possession of the plaintiff, nor do they relieve the plaintiff from the duty of establishing his right to maintain the action which he has instituted. In the first vol. of Hilliard on Torts, 493, note “a,” we were told that the defendant has a right to prove that the legal title was at the time of the trespass, vested in a third person, and that the plaintiff was not in possession. Substantially the same doctrine is found in Alternóse vs. Hufsmith, 9 Wr. 121. Whatever may the defendant’s rights in this respect, certain it is the plaintiff cannot recover in trespass simply because he is the plaintiff, and has shown that the defendant committed a trespass upon the rights of some one. To permit this would be to require the defendant to pay twice, or oftener, the damages occasioned by his wrongful act. What then is necessary upon the part of the plaintiff in trespass quare clausum fregit, to enable him to maintain bis action ? In the case before us the plaintiff seeks to recover the value of the property .taken by the defendant, not simply damages for disturbing the possession. Justice Coulter, in Lewis vs. Carsaw, 3 Harris, 31, says ; “To maintain and support the action of trespass, there must be in the plaintiff either actual possession or the right of immediate actual possession, flowing from the right of property .” Justice Thompson, in Weitzel vs. Marr, 10 Wr. 464, says: “To maintain trespass, there must be in the plaintiff either actual possession or the right to immediate actual possession, flowing from the right of property, and he must have been deprived of it by the tortious act of another.” In Waldron vs. Haupt, 12 Smith, 410 ; Creps vs. Dunham, 19 Smith, 459, and Union Petroleum Co. vs. Bliven Petroleum Co., 22 Smith, 183, substantially the same ruling is found. To maintain this action, the plaintiff gave in evidence two writings. In the first, this language occurs : “If there is any ice in the levels above dam 6, we will make no charge for it, subject, however, as to cutting, to privileges, if any, heretofore granted. The shipments should be made in cars, &c.” The other writing is in this language : Mr. J. M. Payne is permitted to take ice from the canal levels above Schuylkill Haven, to be loaded into boats or shipped by rail to Philadelphia, provided no previous grant has been given by proper authority to other parties.
    
    From the testimony of the plaintiff it appears that by virtue of these writings he claims all the ice in the canal levels, from dam No. 6 to Port Carbon, a distance of nearly six miles. The plaintiff does not claim that he had actual possession of the canal level, from which the ice was removed, nor of the ice itself, but that he had the right of immediate actual possession. The right to immediate possession must, as we learn from the authorities above cited, be a right flowing from the right of property. What right of property then had the plaintiff in the ice in question? He had made no absolute purchase of it, he had paid nothing for it, and he has not bound himself to pay anything for it. He entered into no contract to take any particular ice, nor any particular quantity of ice. He was not bound by virtue of these writings to take any ice. It is true he had permission to take ice, but the permission is a conditional one, for which he paid no consideration, and in consequence of which he had, so far as the ice in question is concerned, made or incurred no expenditure.
    He could take ice only upon condition that he shipped it to Philadelphia. If he took it without shipping to Philadelphia, either by boat or rail, then it was without authority, and he became a trespasser. Hence his right to take possession of the ice did not flow from a right of property, but was the means through which, he might comply with the condition attached to his authority and thereby acquire a property in the ice. This construction of his written permission accords with his understanding of it, as he expressed it in his testimony when he said, “the consideration was that I was to load it either on cars or in boats, and ship to Philadelphia over canal or by P. & R. R. R. Co. The freight was $1.70 per ton. The permission given the plaintiff in this caáe is in some respects not unlike that given in Creps vs. Dunham, 19 P. P. S. 459. In that case, the contract conferred upon one named Hatch, a right to cut timber upon certain lands, and convert it into staves, which were not to be removed until a certain price per thousand was paid. It was held that although Hatch had the right to enter upon the land, cut the timber and actually convert it into staves, yet it did not give him either the actual possession of the staves or the right of immediate possession. And while Hatch might assign his right, yet his assignee, though be went upon the land and counted the staves which he claimed to have purchased, did not obtain either possession or the right of immediate possession, and consequently could not maintain trespass against the Sheriff who sold them as the property of another.
    This ruling accords, to some extent, with that to be found in Johnstown Iron Co. vs. Cambria Iron Company, 8 Casey, 241, and Dark vs. Johnston, 5 Smith, 168.
    But there is another condition attached to the authority or permission granted, “provided no previous grant has been given by proper authority to other parties,” says the writing. There is nothing in the testimony to show whether or not any previous grant was given. This we think a matter of importance, for if a previous grant exists for the ice in question, then the very authority or title which the plaintiff invokes to sustain his action, is to be found in another; and surely the defendant cannot be made to pay for his wrong, both to this plaintiff and such other one. We are inclined to the opinion that it was the duty of the plaintiff to show, as part of his case, that no such previous grant had been given. Our conclusion, therefore, is, that the writing in question, is but a conditional license or permission, and entirely different from a contract of purchase or a lease. In Punk vs. Haldeman, 3 Smith, 243, Woodward C. J., discussed this subject and says “there is a great distinction between a lease of mines and a license to work mines. The former is a distinct conveyance of an actual interest or estate in lands, while the latter is only a mere incorporeal right, to be exercised in the lands of others. It is a profit a prendere, and may be held apart from the possession of land, and though the licensee will be entitled to search and dig for mines according to the terms of the grant, and appropriate the produce to his own use on payment of the stipulated rent or proportion, yet he will acquire no property in the minerals till they are severed from the land, and have thus become liable to be recovered in an action of trover.
    At the time of the trespass there had been no severing of the ice by the plaintiff, there was no actual possession in him. He had no such title to the ice as would give him constructive possession or the right of immediate actual possession, flowing from the right of property, and, consequently, cannot maintain trespass. The conclusion to which we have arrived renders it unnecessary to determine whether or not the Navigation Company, under its charter, ever had any property in the ice which formed upon the canal levels, any more than it had in the ice which formed on the river Schuylkill adjoining, or whether, by its lease to the P. &R. R. Co., it transferred any right of property to the ice. If the defendant has trespassed upon the rights of these corporations they have their remedy.
    And now September 6th, 1880, the rule is made absolute and judgment is entered for defendant “non obstante veredicto.”
    On Feb. 11, 1881, Payne took out a writ of error. On March 7, 1881, the Court below amended the record as follows :
    7 March, 1881, it appearing to the court that at the time of the trial of the above stated case the following questions were reserved, to wit:
    Has the plaintiff shown such title to the property in question as would enable him to maintain this action of trespass ?
    
      Has the plaintiff shown such actual possession or the immediate right to such actual possession as would enable him to maintain trespass ?
    Under the case presented by the plaintiff should the court direct a verdict for the defendant ?
    And that the same were not placed upon the minutes kept by the stenographer during the trial, although the same were written down upon the minutes kept by his Honor, Judge Bechtel, who tried the case. The court do now order'and direct that the same be placed upon the minutes kept by the stenographer and made a part of the record in said case.
    
      James Ryon and W. F. Shepherd, Esqs., for plaintiff in error argued,
    that the record does not show the facts reserved, and therefore the court could not enter judgment “non obstante veredicto.'” Winchester vs. Bennett, 4 P. F. S. 410; Wilde vs. Trainor, 9 P. F. S., 439; Miller vs. Hershey, 9 P. F. S. 67; Clark vs. Wilder, 1 Casey 314; Irwin vs. Wickersham, 1 Casey 316; Wilson vs. Tuscarora, 1 Casey 317.
    That even if Payne’s right only amounted to an easement; yet it was in writing; and vested the title and possession in him as against all except the company; Huff vs. McCauley, 3 P. F. S. 206; Johnson vs. Cowan, 9 P. F. S. 275; Caldwell vs. Fulton, 7 Casey 475. Ulmer was only a trespasser; and Payne could maintain trespass; Groves vs. Hodges, 5 P. F. S 504.
    
      N. Heblich and D. B. Green, Esqs., contra,
    
    argued that the question of the right of possession does not arise in Huff vs. McCauley, Johnston vs. Cowan or Caldwell vs. Fulton. The case of Groves vs. Hodges did not decide as plaintiff claimed.
    That the ownership of the ice was vested in the owners of the soil and not in the canal company, Egerton vs. Huff, 6 Am. Law Reg., N. S. 720; and as Payne had neither actual possession, nor the right of possession trespass would not lie.
   The Supreme Court affirmed the decision of the lower court on March 28, 1881, in the following opinion:

Per Curiam.

Whether there is any evidence to submit to the jury as to a fact material to the plaintiffs recovery is a pure question of law and may therefore be properly reserved.

Upon the point reserved we affirm this judgment upon the opinion of the learned court below.

Judgment affirmed.  