Barton Coal Co. v. Cox

Bowie, J., delivered the opinion of the Court. It appears from the record, that the suit in which this appeal is taken, was instituted originally, by John A. Smith, John S. Coombs, and Edward Hoye, against The Barton Coal Company, the appellant. The declaration was filed in the names of the co-plaintiffs, containing three counts, which, as far as the distinctive forms of action can be recognized in our present system of pleading, may bo designated as trespass quare clausum fregit, ei, de bonis asportatis combined. The first count, is a general one, charging that the defendant, broke and entered the locus in quo and mined, dug, excavated, and carried away large quantities of coal.

The second and third, set out the trespasses with greater minuteness, and charge that the defendants then and there raised, large quantities of coal, iron ore, and other minerals, and then and there, took, carried away and converted it to their own use. The defendants ¹⁸ “pleaded” they did not commit the wrongs, etc., and “freehold in the defendants,” on which pleas issues were joined, and a warrant of resurvey issued, executed and returned, showing no conflict of title or location, but that both parties located the several'tracts, on which the trespass was complained of, in. the same manner. The cause having been removed, on the suggestion of the appellant, from the Circuit Court for Allegany County, to the Circuit Court for Washington County, on the 22nd July, 1872, the record was filed in the latter Court, the death of John A. Smith suggested, and motion made for leave to make new parties, by inserting the names of his executors, Walter S. Cox and Thos. C. Cox; which leave was granted on the 31st July, 1872, and new parties made.

The plaintiffs then filed their replication to the second plea of the defendant, viz: “that the close in the declaration mentioned, was not the close of the defendant.” On the 19th November, 1872, the defendants filed their plea of ne unques executor, which on motion of the plaintiff's was stricken out on the same day. This action of the Court below, is made the first subject of objection, on the ground that the appellant had a right to know the'rccovery was by the proper parties, otherwise a second recovery might be had for the same cause of action, and the issue could only be made by plea. There is no doubt that the identity and verity of the representative character, in which a suit is brought, or maintained, by a person claiming to be executor, or administrator, must be established, in order to enable him to recover, as well as when a party sues individually. Whence, whenever a defendant has reason to doubt whether the plaintiff is the person he assumes to be, he may plead in abatement, i. e., show cause why he ought not to be impleaded, in the manner and form he now is; these pleas being dilatory, must be pleaded within a certain time ¹⁹ prescribed by tbe Court and generally before a general imparlance or continuance — otherwise an infinite delay might ensue.

The 3rd sec. of Art. 2, of Pub. Gfonl. Laws, title, “Abatement,” provides that if tbe plaintiff in any action shall die before judgment, his heir, executor or other proper person to prosecute such action, may appear and prosecute the same, and such other proceedings shall be had to bring tbe cause fairly to trial as the Court may deem proper. It does not appear from the record, or agreement filed in the cause, whether any term intervened, between the appearance of the executors, which was on the 31st of July, 1872, when they filed their replication, as of April Court, 1872, and November Term, 1872, when the appellants filed their plea of ‘ ‘ne unques executor;’ ’ but this Court must presume the Court below for some sufficient cause directed the plea to be stricken out, so great a lapse of time having occurred between the appearance of the executors, and the plea, and a continuance had.

The proper time for such a plea was when the executors asked leave to appear, and the plea should have been entered at that term. At the trial five bills of exceptions were taken by the appellants, and three by the appellees, but no appeal being taken by the latter, these are not under consideration . The first exception of the appellants, was taken to the admission of certain certificates of letters testamentary to the executors, and in connection therewith, copies of the last will and testament of their testator and of probates of attesting witnesses thereto annexed, under the hand of the Register of Wills and seal of the Orphans’ Court of Washington County, District of Columbia, and subscribed by the Judge thereof, which were offered by the plaintiffs below to prove the representative character of the executors of Smith. ²⁰ However informal and irregular these certificates may have been, and whatever error was committed by the Court below, in admitting them, that error was corrected and rendered harmless by the introduction at a subsequent stage of the trial of an exemplification of the letters testamentary, authenticated according to the testamentary system of this State. Vide Art. 93, sec. 76, of the Code of Pub.

Genl. Laws. The appellant’s second bill of exceptions is taken to the rejection and exclusion as evidence, of a letter offered by the appellant, purporting to be signed by Doctor Samuel P. Smith, ag'ent for Mrs. Sally Smith, dated the 5th of September, 1868, addressed to T. S. Cunningham, Esq. We cannot perceive any ground for questioning the propriety of the Court’s decision in this respect.

The writer of the letter was himself before the Court as a witness. He had testified that although he had acted as agent for John A. Smith in his life-time, and for his widow and legatee Mrs. Sally Smith since his death, he had never been agent for Hoye and Coombs, or the executors of Smith; under such circumstances, to have admitted the letter of one who was a stranger in interest to the parties to the cause, would have violated the elementary rules of evidence. ■ The third and fourth exceptions of the appellant are taken to the exclusion of certain evidence, offered by the appellant in mitigation of damages. The particular statement and account referred to in the third, having been lost, that item of evidence is necessarily disposed of, but the same principle is said to be involved in the fourth exception, in which the appellant offered to prove the costs, expenses, and charges of removing the coals mined from the rooms in which the coal lay when first taken from the bed of the Barton Goal Mines, and the costs and expenses of removing it to the opening of the mines, and the ruling market value thereof, after being transported to market, ²¹ and cost of such transportation. If this exception was interpreted literally, it would be sufficient to say, that evidence of the value of coal in the Barton Coal Mines, and of the costs of removing thence to its opening and to market, was not evidence of the value of coal in the appellees’ mines, and the costs of transportation to the opening and thence to market, and however close these mines may be in fact, that such evidence is not admissible, by comparison, when direct testimony might be ^procured, but the question really involved and intended to be presented, is that submitted by the third prayer of the appellees, and which constitutes a part of the appellants’ fifth exception, and which declares, if the jury find the facts mentioned in their first prayer, then they, the appellees, are entitled to recover such sum per ton, as the . jury may find the said coal so mined was worth,' when; first severed from its native bed, and before it was put upon the mine-cars, without deducting the expense of severing said coal from its native bed.

If the appellees were entitled to recover the price of the coal as alleged in the third prayer, the evidence of the cost of severance and transportation, designed to be offered by the appellants in their fourth bill of exceptions, was impertinent, immaterial, and inadmissible. There are two standards, or measures of damages to property, the one, the severe; the other, the lenient, which according to some of the authorities, depend upon the intention or mala fides of the defendant, and according to others, upon the form of the action. This distinction is admitted, in the very recent case, of The United Merthyn Colliery Company, ex parte The Powell Daffryn Steam Coal Company’s Claims,” cited by the appellant, from “ The Weekly Reporter and Solicitors’ Journal,” December 1th, 1872. This was a motion made in behalf of the former company, for obtaining from the Court, the construction of an order made previously, by ²² which the former company were ordered to pay the value of certain coal (obtained by them under a trespass) at the pit’s mouth, deducting the cost of severance and the cost of carrying to the pit’s mouth.

The solicitors in support of the motion, arguing that just allowances of winning coal are deducted in cases of trespass when there has been no fraud, say, in such cases, there is a severe rule and a lenient or mitigated rule. The Court, Bacon, V., C. held “the defendants here must be taken as purchasers, the plaintiffs, although they have suffered a wrong, must not have more of the benefit of that wrong, than was actually the case. All just allowances must mean actual disbursements, but without profit. The plaintiffs must be in the same position as if they had severed the coal and brought it to the bank themselves, apart from any profit.” The circumstances of the case are not disclosed, further than may be inferred from the observations of the counsel, and the language used by the Court.

The appellees’ third prayer, does not, it is said, advert to the distinction referred to in the above case, the existence of fraud, or knowledge on the part of the defendant, as in the case of Ridgely vs. Bond and Wife, 17 Md., 14 . If this were an action of trover, the plaintiff according to the authorities, might recover the enhanced value, and is not confined to the value of the material either at the place of taking or of manufacture. 2 Greenleaf Evid., Sec. 276; Greenfield Bank vs. Leavitt, 17 Pick., 3 ; Baker vs. Wheeler, 8 Wend., 505 ; Rice vs. Hollinsbeck, 19 Barr, 664. Adverting to these or similar cases, Mayne, in his work on Damages, p. 289, says, “A curious question has been raised in America, as to the value at which an article is to be estimated,.which has been changed into some new form by its wrongful taker. In New York, it has been several times ruled, that the whole value of the article ²³ in its new form may be recovered; as for instance, where timber had been converted into boards, wood into coal, black salts into pearl ashes.” See cases cited, Sedgwick on Dam., 565, (4th Ed ) * * * * “ But this merely decides who shall have the property, not what amount of damage shall be received for the alteration.” “Itmay be said that if the property of the improved article, continues in the original owner, he must be paid for its detention on its full value, but I conceive that this by no means follows.” Referring then to the English authorities, he proceeds: “The only English authority, that I am aware of, which seems to oppose this view, is that of a class of cases in which the question has been, as to the mode of valuing minerals wrongfully severed and carried away.

The form of the action in the first three cases, was trespass, and there it was held that the coal should not be estimated at its value as it lay in its bed, but at its price when it first became a chattel, and that no deduction could be made on account of the labor bestowed in digging it.” Mayne on Dam., Tit. “ Trover,” 291. It would appear from these extracts, there is a diversity between the American and English cases, in applying the rule of damages and the American cases themselves are far from being uniform. The case of Forsyth vs. Wells, 41 Pa., 291 , was an action of trover, where the taking was by mistake, because of the uncertainty of boundaries ; it is founded on Baron Parkk’s decision in Wood vs. Morewood, 43 Eng. Com.

Law, 810. It is conceded there are cases of trespass, where the Judges have adopted the mode of calculating damages for taking coal, substantially equivalent to the rule laid down by the Common Pleas in the judgment appealed from, where no wilful wrong was done, and refers to Martin vs. Porter, 5 Meeson & Welsby, 351, but prefers the rule in Wood vs. Morewood. ²⁴ Herdie vs. Young, 55 Pa. State Rep., 176, was an action of replevin, for logs, cut and carried down to a boom. It was held where the injury was inadvertent, the measure of the damages, would be the value of the logs in the boom, less the cost of cutting and hauling them to the river, and driving them to the boom.

The United States vs. Magoon, 3 McLean, 171 , was an action of trespass for digging and carrying away lead ore from the lands of the plaintiff.’ The defendant suffered a default and a jury were sworn to assess damages. The plaintiffs contended they were entitled to the value of the ore after it was dug, but the Coui;t instructed the jury, that was not to be the measure of damages, but the injury done to the soil by the trespass. That the digging and carrying away by the same persons, is presumed to be a continuous act, and the lead ore removed, must be considered in aggravation of the trespass upon the soil. The case of Goller vs. Felt, 30 Cal., 482 , was an action for wrongfully removing the gold bearing earth from a claim and extracting the gold.

The value of the gold less the expense of digging and separating it from the realty, so as to make it personal property, was held to be the measure of damages. The case of Coleman’s Appeal, 62 Pa., 278 , was a bill for accounting between tenants in common. The Oourtsaid ccthe case of the defendants is entitled to still more favorable regard than that of a trespasser, though by mistake or ignorance. There the plaintiff’s property has been taken wrongfully and against his will.

Here a tenant in common exercises his undoubted right to take the common property, and he has no other means of obtaining his own just share, than by taking at the same time the shares of his companions. The value of the ore in place is, therefore, the only just basis of account.” The case of The Stockbridge Iron Co. vs. Cone Iron Works, 102 Mass., 80 , was a suit in equity for injury to ²⁵ plaintiff’s land, by digging and excavating iron and other ores. The standard of damages was said to be the value of the ore as it lay in the bed, but the point does not appear to have been discussed. In the absence of any adjudication in this State, on the question, and the conflict of authorities in others, we must endeavor to deduce the principles which should govern in cases of this peculiar character, from a condensed statement of a few of the leading cases in England, where this species of property has long been the basis of national wealth, and often the subject of judicial consideration.

Martin vs. Porter, 5 Meeson & Welsby, 351, is a case very analagous to the present. That was an action of trespass for breaking and entering the plaintiff’s close, and taking and carrying away coal, etc. The defendant was owner of the adjoining estate and had worked the coal under the plaintiff’s land. At the trial at York Assizes, the question was upon what principle the damages were to be assessed; Parke, Baron, was of opinion, “that the plaintiff would have been entitled in an action of trover, to the value of the coal as a chattel, either at the pit’s mouth or on the canal bank, if the plaintiff had demanded it at either place, and the defendant had converted it, without allowing the defendant anything for having worked it, and brought it there; that not having made such a demand and the action being trespass, he was entitled to the value of the coal as a chattel at the time when the defendant began to take it away, that is, as soon as it existed as a chattel, which value would be its price at the pit’s mouth, after deducting the expense of carrying the coals from the place in the mine where they were got to the pit’s mouth,’’ etc. Leave was given to move to reduce the damages if the Court in Banc, should be of opinion, that the proper measure of damages, was the value of the coal in the bed. ²⁶ At Easter Term following, on motion to reduce the damages, before a full Bench, it was argued that to allow any other estimate of damages (than the value in the bed) would be to confer on the plaintiff a large profit, in the absence of any thing either done, or suffered by him, that if he retained the amount given, on the principle laid down by the learned Judge, he is paid not merely the value of the coal, but a double value. All the Judges seriatim decided, that the damages should not be reduced.

Parke, B., said : “The plaintiff is entitled to be placed in the same situation as if these coals had been chattels belonging to himself, which had been carried away by the defendant, and must be paid their value at the time they were begun to be taken away. He had a right to them, without being subject to the expense of getting them, "which was a wrongful act by the defendant, and for which the defendant cannot claim to be