¶1Opinion,
¶2This action joins two defendants whose liability may be essentially different. The declaration is in case for a joint act in unlawfully and negligently removing the coal from under plaintiffs’ mill, without leaving sufficient support, whereby the surface of the land settled with resulting damage to the mill. But the evidence, even on the part of the plaintiffs, showed that the railroad company had leased the land to Pardee, the other defendant, before any of the acts which were claimed to have caused the injury were done, and that all of such acts were done by Pardee. Prima facie, therefore, the railroad company was not liable under the evidence in this action: Offerman v. Starr, 2 Pa. 394; and the defendants’ fourth point should have been affirmed.
¶3It is argued now that the railroad company is liable under the covenant by its predecessor, to make good any damage done to the surface of plaintiffs’ lot by the mining operations conducted underneath it. But this covenant is not declared upon as the basis of the action, and if it had been, then Pardee & Co. would have been improperly joined, for they were not parties *104to the covenant. The cases, like Horn v. Miller, 186 Pa. 640, which hold that trespass, or trespass on the case, is the proper remedy for the disturbance of a right, even where such right has been acquired by grant or covenant, do not apply, nor do they authorize the joinder of parties where the liability of one arises if at all from covenant, and that of the other from a tort pure and simple.
¶4The other questions in the case, the extent to which the obligation of lateral support applies in favor of a party acquiring title after the operation causing the injury has been completed, and the statute of limitations, can be better determined when plaintiffs have elected which of the defendants to pursue in the present action.
¶5Judgment reversed and venire de novo awarded.