dissenting :
The defendant has no title to the triangular piece of land on which he is attempting by force to construct a tramway and build a coal tipple. He does not have either the possession or the right of possession. He must, therefore, be regarded as a trespasser in this proceeding. The learned court below in .entering the decree dismissing the bill said that the defendant was regarded as a stranger having no rights under his alleged purchase of the property in dispute. It was conceded at the argument that defendant was not now asserting title under the so-called agreement to purchase, and therefore is without legal right to justify his acts of trespass. We must accept this as an established fact in the consideration of the case; indeed, no other conclusion could be reached under the testimony, because the only evidence of title offered by defendant was the receipt signed by Joseph H. Berlin, as attorney in fact for Mrs. Yeagley. The receipt does not describe any land, is silent on the subject of possession, and the party who signed it testified that it had been altered by the interlineation of the words “ as per agreement ” after he had signed it. No evidence was introduced that the self-styled attorney in fact had any authority to sell the interest of Mrs. Yeagley in the partnership or land, and this leaves the defendant without the shadow of legal right *31to support his contention. Here, then, is a case in which, the defendant has undertaken to invade and take possession of a property by constructing permanent obstructions upon it, without any legal right, title or interest in the same. He did not have title to the land, and since he never had possession in fact, nor the right of possession in law, he is a trespasser ab initio. Under somewhat similar circumstances this court has held that where a person goes upon the property of another and wrongfully builds upon it, he is a trespasser and will be compelled by injunction to remove the wrongful construction: Bright v. Allan, 203 Pa. 394. Our courts have frequently held that one who attempts to enforce by violence his claim of ownership of land in the possession of another, will be enjoined by a court of equity until he appeals to a proper tribunal for the adjudication of his rights. If a person under a claim of ownership will be restrained from disturbing one in actual possession until the legal rights are established by an action at law, the present plaintiffs have a much stronger equity against a trespasser without any title. This principle is clearly recognized in Pomeroy’s Equity Jurisprudence, vol. 5, sec. 502, wherein it is said: “ Hence a true regard for the interests of both parties requires that a temporary injunction should issue to preserve the property in its present condition till the ownership is decided. . . . The courts are largely guided in forming their conclusion by balancing these possible wrongs against each other, and acting favorably toward whichever party will be the least injured by unfavorable action. . . .” This doctrine is sound even as between different persons asserting title under a claim of right to the disputed land. The present case is much stronger because the defendant has no title to the land, and therefore in balancing the wrongs the equities are all with the plaintiffs here.
It was necessary for the plaintiffs to establish one of two things in order to sustain their bill and be entitled to the injunction. First, that they were the owners of the title, or, second, that they were in possession under a claim of right. In either event, they were entitled to the injunction. It is averred in the bill that the title to the piece of land in dispute was in the partnership. This fact is not only averred in the bill, but at the hearing plaintiffs’ counsel offered to prove by *32Mrs. Yeagley, in whose name the legal title stood, what real estate belonged to the partnership, with the evident intention of showing that she held the title in trust for partnership purposes, but the court refused to admit the testimony. This was clear error, because in equity it is immaterial in whose name the legal title stands, if the intent is to convey to the partnership. The possessor of such legal title will be deemed to hold the property in trust for partnership purposes: 22 Am. & Eng. Ency. of Law (2d. ed.), 93. There has been and there can be no sufficient reason given for the exclusion of the testimony of Mrs. Yeagley in this respect. It is said that the purpose of the question was not broad enough. But this is technical in the extreme, and without merit in view of the ground upon which the court excluded the testimony. It was excluded on the sole ground that the partnership agreement of 1901 was conclusive of the rights of the partners, and that no title to the real estate could be shown unless therein specified. Certainly, this cannot be the rule. The partnership agreement on its face and the evidence offered at the trial show that at the time the agreement was executed there was a dispute between the partners about the title to the land. Mrs. Yeagley claimed it belonged to her individually. Llewellyn insisted that it belonged to the partnership under an arrangement made with her husband ten or twelve years prior thereto. He refused to sign the agreement until the provision relating to the title to the disputed land was stricken out. It was stricken out before execution, and we must conclude from this fact alone that nothing was settled by that agreement so far as the title to the disputed land was involved. It is contended, however, that 'because there had been inserted in the agreement the phrase “ and a right of way over land to mine ” it necessarily follows that the title to the land was in Mrs. Yeagley, and only the right of way over the same was granted to the partnership. The court below and here rule the case on this ground. In my opinion, this is balancing the plaintiffs on a too narrow edge to be in keeping with the spirit and purpose of a court of equity. Even if we concede that under the agreement the partnership acquired no title to the land because of the phrase used, it certainly cannot be contended that defendant acquired any right in the land by reason of this provision. Just what *33was meant by it does not clearly appear. Its meaning is ambiguous, and testimony should have been admitted to explain it so as to show what the rights of the partners were. But no matter what it means, nor what the disputes between the partners were in reference to the ownership of the land, how can a stranger to the title, a trespasser upon the land, raise the question in a collateral equitable proceeding in which these issues were not directly involved? It must not be overlooked that the partners were not asking the court to pass upon their rights in the partnership property. So far as the record shows the partners were standing together in resisting the encroachments of the defendant. As against a trespasser, the bill should be sustained upon the testimony of Llewellyn alone, lie testified in positive terms that the land belonged to the partnership, and explained in detail the arrangement by which he put in his coal leases, and the husband of Mrs. Yeagley put in the land as part of the partnership assets. The partnership had been in existence ten or eleven years before the written agreement was entered into. The tipple and tramway had been constructed and in use upon the land by the partnership during all these years. These facts are sufficient to my mind to move a court of equity to restrain the attempted invasion by defendant.
Entirely independent, however, of the question of title, the decree should be reversed on another ground. The uncontroverted testimony shows that the possession of the land in dispute had been in the partnership for upwards of fourteen years prior to the time defendant attempted to violently seize it. There can be no question that a person in possession of land, either as an owner, a tenant, or under a claim of right, can in equity restrain a trespasser from disturbing that possession until the legal rights are properly determined. This is a familiar rule, and will not be questioned. Possession is good evidence of title against all persons except the owner. It is prima facie .evidence of title against all persons not having a better right. It constitutes, or rather answers, for a right of property: Com. v. Finn, 108 Mass. 466; Rogers v. Bates, 1 Mich. N. P. 93. That the plaintiffs were in possession is not denied. What answer can there be when a court of equity is asked to restrain a trespasser from violently disturbing that *34possession? To my mind, but one, issue the restraining order.
I would reverse the decree, reinstate the bill, continue the injunction, and preserve the status quo until the parties are fully heard and their legal rights determined by due process of law.