Opinion
November 13, 1933.
February 1, 1934.
Equity — Jurisdiction — Dispute concerning possession of lands — Adequate remedy at law.
A telephone company's right to enter upon land in order to renew and repair its telephone line, which it constructed twenty-two years before and has maintained ever since should be attacked by action of ejectment rather than by bill in equity; and on preliminary objection to such a bill the cause should be remitted to the law side of the court.
Appeals — Practice, C.P. — Preliminary question of jurisdiction of subject matter — Estoppel — Act of March 5, 1925, P.L. 23.
The Act of March 5, 1925, P.L. 23, permits appeals from orders concerning purely jurisdictional points before proceedings are had on the merits. A failure of a defendant to appeal within the fifteen days allowed by the Act does not preclude it from raising, after a final decree, the question as to whether the court had jurisdiction of the subject matter.
Appeal No. 130, October T., 1933, by plaintiffs from decree of C.P., Lancaster County, No. 8 Equity Docket, Page 126, in the case of William D. Kurtz and Roland C. Kurtz v. Enterprise Telephone Company.
Before TREXLER, P.J., KELLER, BALDRIGE, STADTFELD, PARKER and JAMES, JJ. Appeal dismissed.
Bill in equity to enjoin the defendant and its employees from repairing a pole line. Before ATLEE, P.J.
The facts are stated in the opinion of the Superior Court.
The court dismissed the bill. Plaintiffs appealed.
Error assigned, among others, was the decree of the court.
Harris C. Arnold, for appellants.
John E. Malone, and with him G.T. Hambright, for appellee.
Argued November 13, 1933.
The complainants in this case filed a bill in equity to enjoin the defendant, its agents, employees and workmen, from going on premises described in the bill, belonging to them, the complainants, and erecting, renewing or repairing the telephone pole line which the defendant had constructed thereon twenty-two years before and maintained ever since.
Within eight days after the filing of the bill and the issuing of a preliminary injunction thereunder, the defendant filed an answer raising as a preliminary objection to the bill, that "the exclusive remedy of the plaintiffs is at law by an action of ejectment." See Act of June 7, 1907, P.L. 440.
The court overruled the preliminary objection and directed the defendant to answer on the merits.
This was done, and the case was heard on bill, answer and testimony, and after due consideration a decree was entered that the injunction be dissolved and the bill dismissed, on the ground that the weight of the evidence did not support the averments of the bill.
Complainants have appealed.
We need not discuss the propriety of the entry of this decree for we are of opinion that the preliminary objection of the defendant to the bill as an ejectment bill should have been sustained.
The defendant was in actual possession of so much of the land as was occupied by the pole line and had been for over twenty-one years. The real purpose of the bill was to eject the defendant from that possession. Hence complainants' remedy was by action of ejectment: Washburn's App., 105 Pa. 480; O'Neil v. McKeesport, 201 Pa. 386, 50 A. 920; Thomas v. Hukill, 131 Pa. 298, 18 A. 875; Grubb's App., 90 Pa. 228; Tillmes v. Marsh, 67 Pa. 507; Goss v. Spencer, 245 Pa. 12, 91 A. 215; Messimer's App., 92 Pa. 168. There is nothing in the case of Bradley v. American Tel. amp; Tel. Co., 54 Pa. Super. 388, relied on by appellant to the contrary. That was an action in ejectment, as this should have been.
The defendant has consistently maintained that equity had no jurisdiction of the controversy. It is not prevented from pressing the point here because it did not appeal from the order of the court dismissing the preliminary objection to the bill, under the Act of March 5, 1925, P.L. 23.
The objection was not to the jurisdiction of the defendant's person, as by some failure to serve the process properly, but to the subject matter of the suit; that equity had no jurisdiction because there was an adequate remedy at law. In the latter case, the defendant is not precluded from raising the jurisdictional question after final decree by reason of a failure to appeal within fifteen days under the Act of 1925: Wettengel v. Robinson, 288 Pa. 362, 367, 136 A. 673.
For these reasons the appeal is dismissed, but the cause is remitted to the court below with directions to transfer it to the law side of the court; the costs in the cause to abide the final determination thereof in the court of law. See Act of 1909, supra, sec. 3, p. 441.