Appeal from decree of Court of Common Pleas of Dauphin County, No. 2607 Equity Docket, 1963, in case of Carlo Carelli and Helen A. Carelli, his wife v. Lois M. Lyter.
John J. Krafsig, Jr., for appellant.
Richard D. Walker, for appellees.
Bell, C. J., Musmanno, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice O'Brien. Mr. Chief Justice Bell dissents. Mr. Justice Jones and Mr. Justice Cohen took no part in the consideration or decision of this case.
Appellees commenced an action in equity seeking to enjoin appellant from trespassing upon and interfering
with appellees' use of their land. The chancellor made an adjudication and entered a decree nisi granting the relief prayed for in the complaint. This appeal followed the dismissal of appellant's exceptions and the entry of a final decree in accordance with the decree nisi. At oral argument, this court requested counsel to file supplemental briefs on the issue of the propriety of proceeding in equity.
We agree with the appellant that "the kernel of the controversy is the legal title to land", and thus equity is an improper form of action. The proper proceeding to try title to land is an action of ejectment at law, rather than an injunctive proceeding in equity. Although the form of plaintiffs-appellees' complaint indicates that the instant case is a suit to enjoin a continuing trespass, the record reveals that such is not the situation.
Attached to both the complaint and the answer, as exhibits, are deeds into the respective parties. Defendant's answer, paragraph 3, puts in issue the question of title to the tract over which the alleged trespass occurred. Further, defendant in her answer requests the court to enjoin the plaintiffs from trespassing on the same tract of land. Moreover, the chancellor himself treated the action as one to try title, tracing in his findings the chain of title of each of the parties, and holding in his conclusions of law (2) that the plaintiffs are the owners of the tracts of land at issue.
There is no doubt in our mind that this is an action to try title to land, which should properly be heard at law.
However, we hold that once the chancellor has adjudicated the case on the merits, any objection to the propriety of a case being heard in equity comes too late. Pa. R. C. P. 1509(c) provides: "The objection of the ...