
    Miles Land Company, Appellant, v. Pennsylvania Coal Company.
    
      Equity — Jurisdiction—Ejectment bill — Remedy at law — Act of June 7, 1907, P. L. 440.
    
    1. A bill in equity praying for an injunction to restrain the mining of coal, for an inspection of the mines, for discovery, and an accounting of coal mined and removed, and averring ownership of the plaintiff in the land, is properly certified under the Act of June 7, 1907, P. L. 440, to the law side of the court when the answer claims ownership in fee simple in the defendant.
    2. In such a bill the primary question is one of title, and the right to discovery and account is dependent on the plaintiff’s title to the land.
    Argued Feb. 21, 1911.
    Appeal, No. 255, Jan. T., 1910, by plaintiff, from decree of C. P. Lackawanna Co., May Term, 1909, No. 5, certifying to the law side of the court the case of Miles Land Company v. The Pennsylvania Coal Company.
    Before Mestrezat, Potter, Stewart, Elkin and Moschzisker, JJ.
    Affirmed.
    Bill in equity for an injunction and for an account. Before Edwards, P. J.
    
      Error assigned was in certifying the case to the law side • of the court.
    
      March 20, 1911:
    
      Samuel B. Price, with him Cole B. Price, for appellant.
    
      Everett Warren, with him Henry A. Knapp and Charles P. O’Malley, for appellee.
   Per Curiam,

This bill prayed for an injunction to restrain defendant from mining coal under two parcels of land containing in the aggregate about six acres, and for an inspection of the mines, for discovery and an account of the coal mined and removed from the premises. It averred that the plaintiff is the owner of the land; the answer denies such ownership and avers that the defendant company owns the land in fee simple. The court below held that the bill would not lie, that the title must be determined in an action at law, and certified the case, under the Act of June 7, 1907, P. L. 440, to the law side of the court. This is the error assigned on this appeal.

We think the court was clearly right. The defendant company was in possession and mining the coal, and claimed to own the premises in fee. The primary question was one of title. The right to discovery and account prayed for in the bill was dependent on the plaintiff company’s title to the land. If it had title, the relief prayed for followed; if it did not have title, it could demand neither discovery nor an account, as it had no interest in the coal mined by the plaintiff. The proper forum to settle the first and controlling question is the law side of the court. In the meantime, the plaintiff company has an ample remedy to protect and preserve its rights in the coal now being mined by the defendant.

The order certifying the case to the law side of the court is affirmed.  