Dissenting Opinion by
Keller, J.:The opinion of the majority of the court is based on the assumption that the defendant is in possession of the gas well in suit under the lease from the plaintiff.
The undisputed evidence, however, is that the defendant, or its predecessor in title, went into possession of the land in dispute in 1896, as tenant of Adam Burns, drilled the gas well in 1897 under the Burns lease, and made no lease with the plaintiff until 1899, nearly two years after the well was drilled and producing gas.
The suggestion in the opinion that defendant’s assign- or appears to have been in possession under a prior lease from the plaintiff is without sufficient evidence to support it, and it was not so averred in' the pleadings. There is nothing to connect defendant’s assignor with the lease expiring July 6, 1899, referred to in plaintiff’s lease.
The well had, therefore, been in the possession of defendant (or its assignor), as tenant of Burns long before the plaintiff’s lease was executed, and the possession of *51Burns and. his tenant was frankly admitted by the plaintiff in his testimony: “I always thought it [the well] was on the Burns farm.” (p. 14a), and p. 30a: “Q. You knew that Mr. Burns was getting the royalty on that well? A. Yes, sir. Q. And he was in possession of that well? A. Yes, sir, at that time he was. Q. All those years. A. Yes, sir.” It is thus apparent that the defendant (or its assignor), did not take possession of the land or drill the well under, or by virtue of, the Lewis lease, and did not lease the adjoining land from Lewis because of any conflict as to the title of the land and well. It was not until 1915, or nearly eighteen years after the well was drilled and producing gas that Lewis, by reason of a survey ihade for him by one Mast, first disputed Burns’s possession, and claimed that his line ran northeastward of the long accepted boundary and embraced the defendant’s gas well; and even then he took no legal proceedings to oust Burns of his long continued possession.
The royalty from the well has been paid to Burns since 1897, in accordance with his lease, and must continue to be paid, for having entered on the land and drilled the well as Burns’s tenant, the defendant is estopped from denying its landlord’s title. But Lewis is by this action in assumpsit claiming the rent or royalty since 1899, because of his alleged discovery that the well is on his land and not Burns’s, and contends that the lease made nearly two years after its drilling automatically applies to it, — though not within the contemplation of the parties when it was executed — and by some legal sleight of hand transferred the possession of the well from Burns to him.
It is clear that if the defendant had never become a tenant of Lewis’s the latter’s rights, if the gas well is actually located on his land, would have to be enforced by action of ejectment: Hicks v. American Natural Gas Co., 207 Pa. 570, pp. 576, 578 and 579; Crawford v. Forest Oil Co., 208 Pa. 5, p. 15; Barnsdall v. Bradford Gas *52Co., 225 Pa. 338; or by action in trespass: Enterprise Transit Co. v. Hazlewood Oil Co., 20 Pa. Superior Ct. 127. Assumpsit for rentals or royalties would not lie: Reilly v. Crown Petroleum Co., 213 Pa. 595. These principles are not affected by the circumstance that the defendant, (or its assignor), took from Lewis a lease which neither party at the time intended to apply to or include the well in question. Nor did the fact that this lease called for Burns’s land as an ad joinder on the north operate to take the land from Burns and put it into possession of Lewis, to whatever line Lewis or his surveyor, — or even a jury in an action of assumpsit — , might conclude his boundary extended.
I have no fault to find with the statement in the opinion that “The defendant cannot deny the Lewis title to any part of the property the possession of which it secured under that lease,” but I have already pointed out that the defendant did not secure possession of the gas well under the Lewis lease, but under the Burns lease, and therefore, has a right to deny Lewis’s title to it until it has been established by appropriate proceedings in ejectment, and is not estopped from doing so: Pederick v. Searle, 5 S. & R. 236; Wyoming Coal and Transp. Co. v. Price, 81 Pa. 156; nor is it bound to surrender its lease for the land which it actually holds as tenant of Lewis in order to defend against a cláim for rent covering premises which it went into possession of as tenant of Burns and still holds under him.
The case of Hamilton v. Pittock, 158 Pa. 457, relied on by the appellee and the court is not in point. There one who was in possession of land as tenant under a lease having notice of a conflict of title, took a lease from the adverse claimant and was held to be estopped from denying the latter’s title as landlord when sued for rent. The syllabus of the same case in 27 Atl. 1079, states the point decided better than in the State Reports: “A lessee of land, who hearing of a conflict of title, also takes a lease from the adverse claimant, is estopped to *53deny the title of the adverse claimant, when sued for the rent.” No such situation exists here. Neither of the parties at the time the Lewis lease was executed contemplated or imagined that the gas well then in the defendant’s possession and operation, was on Lewis’s land, or that he had any rights or claim of right to it. He first ascertained his alleged rights and asserted his claim eighteen years later when his surveyor located a corner tree northeastward of the corner as fixed by Burns, and thereby added about twenty acres, including the well in question, to the area called for by Lewis’s deed.
Despite the assertions of the court below that the jury was not trying the question of title to the land, that was the only question at issue on the trial and instead of trying it in an action of ejectment, the plaintiff was endeavoring to do it in an action of assumpsit. In this action the defendant could not call on Burns to defend his title and therefore could not adequately present its case and show that the land belonged to Burns, and not to Lewis, and that the latter’s survey was incorrect. Yet under this decision, the defendant will have to pay rental to both Burns and Lewis-for the case of Hamilton v. Pittock, supra, certainly rules that it is estopped from denying Burns’s title and right to his reserved rent or royalty. And if in a proper suit between Burns (or his tenant) and Lewis, it should later be determined that the former is the real owner of the disputed land the defendant would be without remedy to recover the rent it had been compelled by this and similar actions to pay to Lewis.
As the defendant went into possession of the land and well as tenant of Burns, and denies that Lewis is the owner thereof, and claims to hold them adversely to him, the latter’s rights must be asserted by ejectment and trespass for mesne profits and not by assumpsit.
I would sustain the first assignment of error and reverse the judgment without a venire.
Porter, J., concurs in this dissent.