Blaen Avon Coal Co. v. McCulloh

Ritchie, J., delivered the opinion of the Court. The judgment in this case was against the Blaen Avon Coal Company and Archibald Stewart, its mining boss, for entering the appellee’s close, and mining and taking away several thousand tons of coal, and for so conducting their operations as to greatly impair the value of the residue of his coal bed. In the course of proving his record title to the land, the plaintiff offered in evidence the will of Baker Johnson, deceased, the original grantee of the State, which contained the following clause: “It is my will and desire, and I do hereby direct, that my executors shall sell and convey in such manner and on such terms as they shall think beneficial, all the lands to which I am in any manner entitled, lying and being in Allegany County, in the State of Maryland.” The defendants objected to the admissibility of the will, “because the same was not located upon the plats;” and the overruling of this objection is the ground of their first exception. We do not think the objection well taken.

As the testator had directed all his lands in Allegany County to be ⁴¹⁵ sold, any part thereof, less than the whole, was necessarily comprehended in the direction. Nor can we perceive how the power to sell could he laid down, or represented in a “location,” which is descriptive of natural objects. There was in evidence a survey and location of that parcel of the lands of Baker Johnson in Allegany County, derived from the State and held by him at his death, which included the locus of the trespass ; and the only reference to these lands in the will, being in the clause just quoted, there was nothing in that instrument that could aid or affect their actual description. The decision in Langley’s Lessee vs. Jones, 26 Md., 462 , upon an analogous question, sustains the ruling on this point.

It was there held that when the grant and the deed are the same, location of both is unnecessary; and that where the whole of a tract is located on the plats, a deed conveying the whole may he given in evidence though not itself located. The second exception of defendants also relates to the will, and mainly rests on the objection there-was no sufficient legal evidence that letters testamentary were ever granted to the executors. We do not consider this tenable. While the Begister of Frederick County, where Johnson died, testifies that no entry of the issuing of such letters appears upon the minutes of the Orphans’ Court, he also testifies that it was not the custom of the Court at that time, in the year 1811, nor indeed until 1859, to make any record or take any proceedings in the granting of letters testamentary other than the formal declaration of appointment, made in the letters themselves, committed to the executor.

That the letters in question were issued, abundantly appears from the probate of the will, wherein were named as executors the persons who acted as such; the. filing and approval of their bond, and the exhibition to and passage by the Court of their executors’ accounts, in one of which is the specific allowance of the fee paid by them to the Register for issuing the letters testamentary. ⁴¹⁶ Whilst the present practice of the Court, followed since 1859, of recording the issue of letters in their minutes of proceedings, is to he approved, we see no sufficient reason because of the absence of such a practice, when the will of Baker Johnson was admitted to probate, to impeach the action of his executors. The facts in their case are not similar to those of the case of Carlysle vs. Carlysle, 10 Md., 440, cited by appellants. In that case, the order of the Orphans’ Court, relied on by the guardian to protect him for an unfortunate investment of his ward’s funds, was simply a verbal one, with no. record evidence whatever to support it. But further consideration of this exception, which with the preceding one, are those only which go to the right of .plaintiff to claim through Baker Johnson, is rendered immaterial by the uncontroverted proof, apart from that relating to plaintiff’s paper title, which shows that he and those under whom he holds were in full and peaceable possession of the land as the claimants thereof for more than thirty years prior to the institution of his suit.

This was a sufficient possession, the defendants setting up no claim whatever to the land, and trespass q. c. f. being a possessory action, to enable the jalaintiff to sue. Norwood vs. Shipley, 1 H. & J. 295 ; Look vs. Norton, 55 Maine, 103. The remaining and material questions raised by the defendants in their exceptions upon the testimony and to the instructions of the Court on the prayers are, first, as to the liability of Archibald Stewart, and, secondly, as to the rule of damages. The fact and extent of the trespass itself are established beyond dispute, and are assumed in the rulings sought by the defendants.

The mining complained of was actually done by the miners of the company, and by extending their headings or cuts across the line of the company’s property into the adjacent coal land of the appellee. These miners were ⁴¹⁷ under the control and direction of Stewart, as the manager or mine-boss of the company at its mine; and it was in obedience to his instructions the mining was done, whilst he was not personally present in every one of the rooms during the general progress of the trespass. All the coal of the appellee excavated was loaded into the company’s mine cars, carried to the surface over their tramways, transported with their own coal to market, and the proceeds of its sale received and retained by the company. While the President of the corporation testifies that he was ignorant of the commission of the trespass when done, and that Stewart had been generally cautioned to keep within the lands of the company, and Stewart claims that he was misled through relying on a plat of their coal vein, furnished him by the company, made by a skilful engineer, because the outcrop, from an unknown and peculiar formation in that locality, was incorrectly laid down on the map, and not within the company’s lines as supposed ; there was evidence adduced tending to show gross negligence on the part of the company, and of Stewart especially, in not adopting reasonable precautions to test the engineer’s map, which could have been readily done by a surveyor measuring in from the mouth of the mine, or by sounding with a sledge, as Stewart was. urged to do after he had been informed that the appellee alleged the digging was on his land.

And it was further shown that the trespass, notwithstanding this warning, was continued until appellee began to sink a shaft to verify his claim, and thereupon the miners, who were working just below, were by Stewart’s orders recalled to exactly within the company’s boundaries. It is well settled that a trespasser, though misled by a Iona fide mistake as to his title, or who has taken every precaution to keep within his own lines, cannot escape liability for the injury done, being hound in law to know the limits of his possessions. Eb such extenuating circumstances can he fairly set up by the defendants; and the jury ⁴¹⁸ might reasonably, from the proof; have imputed gross and not merely constructive negligence to the defendants under the circumstances of this trespass. As to the question raised upon the uniting of Stewart, with the Goal Company, his principal or master, as co-defendants, and recovering a joint judgment against them,, we perceive no legal difficulty in such joinder.

The law is established that in the case of an agent or servant committing a tort while acting within the scope of his employment, he and his employer may he sued separately or jointly, at the election of the party injured. Nor is it material to the latter’s right to sue, in what proportions, if any, they share the benefits of the wrongful act. And if the agent exceed his authority, a subsequent ratification or adoption of his act by his principal, is equivalent, to a precedent command. In the present case the coal taken from the appellee under the orders and supervision of Stewart, was appropriated by the Company; and under circumstances in which the law would plainly affect it with knowledge of how it was procured.

There are cases, it is true, in which the intermediate-manager or head employé has been held not liable for trespasses of workmen under, him, and in which recourse could he had only to the actual wrong-doer, or to the master, on the principle of respondeat superior; hut they are distinguishable from those where, as in this case, the tort-is in consequence of the command or neglect of the general superintendent. This distinction is recognized in a leading authority relied on by appellants; Stone vs. Cartwright, 6 Term R. 411. These general principles of liability as between master and servant, and principal and agent apply as well to corporations as to private individuals. Erom what we have said it is evident we find no error in the rulings of the Court