CHARLESTON.

#### Elk Garden Big Vein Coal Mining Company *v.*Dr. Richard Gerstell.

Submitted January 15, 1924.

Decided February 5, 1924.

1. *Taxation*— Redemption *Owner May Recover for Wrongful Removal of Goal During Forfeiture.*

Where tlie title to a tract of coal owned by a corporation is forfeited to the State for the failure of the owner to have the same charged on the land books of the county wherein the coal lies for five successive years, and the former owner redeems the same, as provided by the statute, it; becomes reinvested with its former title; said title is retrospective in character; and the corporation may maintain an action of trespass for the wrongful removal of said coal, though the trespass was committed while the title to said coal was. vested in the State, (p. 473).

2. *Trespass*— Declaration *Sufficient Against General Demurrer, Though Not Charging Force.*

Where a count in a declaration contains the usual and formal allegations of a declaration in trespass but fails to charge that the acts constituting the trespass were committed with force and arms, a general demurrer thereto should be overruled. . (p. 473).

3. Limitation! op *Actions*— Special *Plea of the Statute of Limitations Proper.*

An objection to the filing of a special plea of the statute of limitations in an action of trespass, if in proper form, should be overruled and the plea permitted to be filed, (p. 476).

*4724. *Same*— Special *Replication to a Special Plea of the Statute of Limitations Held Properly Rejected.*

■WOiere a declaration in trespass filed at July rules, 1923, alleges that the plaintiff was lawfully in possession of a tract of coal since long before the trespass was committed, as alleged therein, “and ever since”, a special replication by the plaintiff to a special plea of the statute of limitations, setting up that it was 'a continuous trespass since 1917, and that the plaintiff did not know of said trespass until the latter part of the year 1922, if objected to, should not be permitted to be filed, (p. 476).

Case certified from Circuit Court, Mineral County.

Action by the Elk Garden Big Vein Coal Mining Company against Dr. Richard Gerstell. Case certified to Supreme Court on certain rulings of the lower court.

*Affirmed.*

*Wm. MacDonald,*for plaintiff.

*JR. A. Welch*and *Chas. N. Finnell,*for defendant.

McGinnis, Judge:

This is an action of trespass instituted in the circuit court of Mineral county, antj. is certified to this Court upon the ruling of the lower court, overruling the demurrer to the declaration, and upon the ruling of said court in rejecting the special plea of the defendant set forth in the record, and permitting the defendant to file a special plea of the statute of limitations, and in rejecting the reply to said plea by the plaintiff.

The declaration contains three counts. The first and third -counts allege that the plaintiff, Elk Garden Big Vein Coal 'Company, a corporation, on the 14th day of December, 1892, •■and ever since, was lawfully in possession of, and the fee simple owner of, all the coal contained in the Big or Fourteen .'Foot vein of coal underlying all that piece or parcel of land ¡situated in the Allegheny mountains in Mineral county, West Virginia, near the town of Elk Garden, containing - acres; that on the-day of July, 1917, the defendant with force and arms entered upon the same and removed the coal *473therefrom, whereby the plaintiff sustained damages to the amonnt of $20,000.00.

The second eonnt makes 'practically the same allegations, and charges that the defendant associated with him in the mining and removal of the coal (as alleged in the first count), George R. Davis and Granville Barrick, and that the said coal was removed by them under the name of the Locust Grove Coal Company, to the damage of the plaintiff $20,000.00.

There was a general demurrer to the declaration on the grounds that the first and third counts in the declaration are in trespass while the second is in case. There seems to be no material difference in these counts. True, the first and third counts charge that the injury complained of was done with force and arms, -but each of said counts charges a direct injury to the plaintiff’s property by the defendant, and under Section 10 of Chapter 125, Code (Barnes’ 1923), we are of the opinion that all of said counts are in trespass. This being the only ground of demurrer insisted upon by the defendant, the court did not err in overruling the demurrer.

The most difficult question which arises in this case is the question raised on the objection to the filing of the special plea by the defendant, which plea sets up, as a defense, the facts that, at the time the alleged trespass complained of in the declaration was committed, as therein alleged, the plaintiff was neither the owner of the said vein of coal, nor was it in possession of the same; that at that time the title to the said vein of coal was in the State of West Virginia, having been forfeited for non-entry on the land books of Mineral county; that the plaintiff failed to have the said vein of coal charged on the land books of said county from the year 1898 to the year 1922, and that by reason of said non-entry the title to said Big Vein of coal was forfeited to, and became' vested in, the State in 1903. We fail to find any decisions, either by this Court or.the courts of other States, having similar statutes and holdings, which bear directly upon this question.

As a general rule, the plaintiff, to maintain an action of trespass to real property, must be either in actual or constructive possession of the property trespassed upon at the *474time tbe trespass is committed. *Gillison, Trustee,*v. *City of Charleston,*16 *W.*Va. 282. Tbe common law rule is that tbe plaintiff must be in actual possession of tbe property at tbe time of trespass, but tbe modern authorities bold tbe rule as above stated.

“Tbe plaintiff must possess tbe real estate at tbe time when tbe alleged injury occurred, as a rule, in order that be may maintain an action of trespass therefor. However, if be acquired tbe title after tbe injury and tbe title is retrospective in character, dating back prior to tbe time of tbe injury, be may maintain his action.” 26 R. C. L., page 958, sec. 35.

Tbe title to this vein of coal forfeited to tbe State in tbe year 1903, under Section 39, Chapter 31, of tbe Code, and tbe title to tbe same, from that time until it was redeemed by tbe former owner, was vested in tbe State. Tbe State held tbe title for what purpose? It could not use it for its own purposes. It could not dispose of it except for tbe taxes unpaid thereon, and when sold by it for that purpose, tbe former owner, bis personal representatives or assigns, and any person having a lien on tbe land at tbe time of tbe forfeiture and still existing, is entitled to tbe excess for which tbe land sells after tbe taxes, interest and costs have been paid. Tbe'law further gives tbe former owner tbe right to redeem tbe land by the payment of tbe taxes, interest and costs, and when this amount has been paid, tbe title reinvests in tbe former owner. Tbe whole policy of tbe law, including its many changes, seems to be that tbe State bolds tbe title to' tbe land forfeited to it for any cause, solely for tbe payment of tbe taxes charged and chargeable thereon, and we may well say, as is held by a long line of cases decided by this Court, that tbe former owner has no title to land forfeited to tbe State while tbe forfeiture exists, and before its redemption under tbe law, but that tbe title is held by it for tbe sole purpose of the payment of tbe taxes *thereon;*and when tbe title of tbe' State is reinvested in tbe former owner by tbe redemption thereof, we are of tbe opinion, and so bold, that tbe effect of said redemption and reinvestment is to transfer and assign to tbe former owner tbe right to institute any action for trespass on tbe land, tbe cause of which arose at any time during tbe *475forfeiture. That statute which grants to the former owner the title Tested in him before the forfeiture makes his title retrospective in its nature and entitles him to bring an action of trespass for acts committed while his title was vested in the State.

Our statutes creating forfeiture of land to. the State for any cause, and prescribing the proceedings by which it could or may collect the taxes thereon, have at all times recognized and granted to the former owner the privilege to redeem his land by filing a petition setting up his title and showing his right to redeem it. Acts 1872-3, Chapter 134; Acts 1882, Chapter 95, Section 14; Acts 1885, Chapter 46; Acts 1887, Chapter 17; Acts 1891, Chapter 94; Acts 1893, Chapter 24.

There has been no change in the statute by which the title passed to the State. The changes that have been made refer to the manner of procedure by which the State may collect the taxes against the property by sale thereof or by redemption by the former owner, and vesting the title in the purchaser at such sale and reinvesting the same in the former owner upon its redemption.

That the title to this coal was forfeited to the State for ■ non-entry on the land books of Mineral county, and that the former owner during the time the title was so vested in the State could not maintain an action of trespass for the taking and removal of the same, seems to be unquestioned. *State*v. *Coal Company,*83 W. Va. 230. This Court in passing upon the effect of this statute in many cases so holds. In the case of *McClure*v. *Maitland,*24 W. Va. 561, the Court holds that: “The former owner having no interest in the land or proceedings for its sale is not entitled to be a party to the proceedings”. The Court in that ease was passing upon the statutes in force at that time. The legislature in 1882 materially changed the statute in reference to the sale and redemption of forfeited lands, and required the former owner to be made a party to the suit. Before 1882 and at the time *McClure*v. *Maitland, supra,*was decided the proceeding was purely ministerial and ex parte. Since that time the legislature has recognized that the former owner, at least, had an inchoate interest in the land from which he could not be divested *476until tbe land was sold as required by law. *Neal*v. *Wilson et*al, 79 *W.*Va. 482. Since 1893 tbe statute requires a chancery suit to be brought in tbe name of tbe State, and in this suit it requires tbe former owner to be made a party. The State, under tbe constitution and forfeiture laws, charges tbe former owner with tbe taxes and twelve per cent interest, and tbe costs of tbe proceeding’s whether tbe land is sold or redeemed. If sold, tbe former owner receives tbe excess of that amount, and while tbe constitution did not give the former owner tbe express right to redeem except under certain cases, the effect was tbe same as a redemption. If tbe former owner so desired, be is not prohibited from bidding at tbe sale contemplated in tbe constitution and could, if be so desired, make tbe land bring more than any one else could afford to offer for it. Constitution, Section 4 and Section 5 of Article XIII. It seems to have been tbe purpose and intent of tbe legislature, viewed through all 'its acts and amendments, that when tbe former owner redeems bis land he is entitled to receive not only bis former title, but tbe land itself as it was immediately before tbe title became vested in tbe State and that be is reinvested, not only with tbe same title be bad before tbe forfeiture, but tbe right to institute an action of trespass tbe cause of which arose while tbe title to tbe land was vested in tbe State; and tbe benefit of tbe constructive possession of tbe State at tbe time tbe trespass was committed is transferred to tbe former owner upon tbe redemption of bis land and tbe reinvestment of bis title.

We therefore bold that tbe lower court did not err in refusing to allow defendant’s special plea, setting up tbe forfeiture of this coal, to be filed.

Tbe objection to tbe plea of tbe statute of limitations is not supported by any authorities and tbe only reason given in support of it is that the act of trespass, as alleged in tbe declaration, was a continuing act. We do not think this is a sufficient reason for rejecting tbe plea of tbe statute of limitations. Tbe court in passing upon a plea can not assume that tbe allegations of tbe declaration will be proved as alleged, and in a trespass case the'plea of the statute of limitations is always allowed' to be filed. Whether or not it con-*477stitntes a defense depends on the facts proved to support the plea upon the trial, and any trespass committed more than five years before the institution of the suit is barred by the statute, although the declaration alleges the trespass with a continuando. The statute of limitations having begun to run against the State when the first entry was made and the first trespass committed, the fact that the plaintiff did not know, as alleged in its replication, that the trespass had been 'committed until after the statutory period had expired, did not stop the running of the statute: “For it is settled law that when the statute has begun to run no subsequent event will interrupt it.” *Jones*v. *Lemon,*26 W. Va. 629.

The court did not err in sustaining the objection to the replication to the special plea of the statute of limitations and, for the reasons stated, we affirm the rulings of the lower court in overruling the demurrer to the declaration, in sustaining the objection to defendant’s special plea, in permitting the special plea of the statute of limitations to be filed, and in sustaining the objection to the filing of the replication thereto; and it will be so certified to the lower court.

*Affirmed.*