Franklin Coal Co. v. McMillan

Bartol, C. J., delivered the opinion of the Court. Eor the reasons stated in the opinion of our brother Robinson, we all agree that the instructions given to the jury by the Circuit Court, in regard to the locations made ⁵⁵⁷ by the plaintiffs and defendant, were correct, and that it was not error to grant the first, fourth, sixth, seventh, eighth and ninth prayers of the plaintiffs, and also that the second and third prayers of the defendant were properly refused. We are also of opinion that the evidence offered by the plaintiffs, contained in the first bill of exceptions, was properly admitted for the purpose therein stated. But upon the question of the measure of damages, a majority of the Court think there was no error in the rulings of the Circuit Court, and that they ought to be affirmed.

The evidence in the case proves that the defendant’s agents, while engaged in mining coal upon its own land, lying contiguous to that of the plaintiffs, extended their mining operations beyond the limits of its own land into that of the plaintiffs, and removed therefrom a quantity of coal, and this suit was brought to recover damages for the trespass. The form of action is in case, brought by parties entitled to the reversion in the land upon which the trespass was committed ; but in our judgment, so far as the question arises in the present case, the rule regulating the measure of damages is the same as if the suit were in trespass by parties owning the fee, and entitled to the immediate possession. No valid objection can be made to the granting of the eleventh and twelfth prayers of the plaintiffs, and we do not understand the appellants as complaining of them. They are identical with the instructions affirmed by this Court in The Barton Coal Co. vs. Cox, 39 Md., 1 .

The objection relied on by the appellant is to the granting of the plaintiffs’ thirteenth, and the refusal of the defendant’s fifth prayer. By the former the jury were instructed that the measure of damages was the value of the coal when first severed from its native bed, without deducting the expense of severing it. The defendant’s fifth prayer asserts the proposi ⁵⁵⁸ tion, that if the defendant mined out the coal from the plaintiffs’ land, and in so doing believed itself to be the bona fide owner of the land and of the coal so mined, then the measure of damages is the value of the coal in its native bed, before it was severed from the mine. The question presented by these prayers is not a new one in this Court, it was fully considered and decided, we think, in the case of The Barton Coal Co. before cited.

There the Court below granted the plaintiffs’ third prayer, identical with the thirteenth prayer in this case, and refused the second prayer of the defendant, which was in these words : “ If the jury shall find, etc., that the defendant dug out and carried away the coal of the plaintiffs, without knowing that it was trespassing upon the property of the plaintiffs, and believing that it was its own coal, then the measure of damages for such digging and carrying away of coal is the value of the coal in the mine.” The ruling of the Circuit Court upon these prayers was affirmed. After the decision was rendered, an application for a re-hearing was made by appellant’s counsel, in which they asked the Court to re-consider its decision upon the question of damages, but the application was refused. In the opinion then filed, the decided cases were examined, and the question carefully considered, and the Court adopted as the true rule that laid down in Martin vs. Porter, Morgan vs. Powell and Wild vs. Holt. We have examined all the cases which have been cited in the argument, and have discovered no sufficient reason for departing from the decision so recently made by this Court; nor have we seen an;f good reason to doubt that the rule then announced is upon the whole a sound and salutary one, which, while it awards no more than a just compensation to the party injured, will, as said by Baron Parke, “ tend to prevent trespasses of this kind.” We think no real distinction can be drawn between this case and that of the Barton Coal Company. ⁵⁵⁹ (Decided 24th July, 1878.) There this Court held the rule applicable, though the defendant was not a willful trespasser, but “dug the coal without hnowing that it was trespassing upon the property of the plaintiffs, hut believing it was its own coal. ’ ’ It is said that in that case there was no dispute or question about boundaries, and that it was negligence in the defendant to go beyond its own lines.

But the trespass was committed under ground, where the lines were not easily ascertained. Trespasses on the land of another, if not willful, always imply some degree of negligence. In this case the defendant’s excuse is, that it claimed to be the owner of the land. But it has been shown by the proof and by the verdict that its claim was not well founded.

As said in Maye, et al. vs. Tappan, 23 Cal., 306 . “ Where a party has the means of ascertaining the dividing line, he is guilty of negligence in not ascertaining its location.” In this respect, therefore, this case is not to be distinguished from that of the Barton Coal Co. Considering that case as decisive of the present, we have not thought it necessary to make further reference to the authorities, or to discuss the proposition there decided over again. Upon the second bill of exceptions, we are of opinion that the ruling of the Circuit Court therein stated furnishes no ground for reversal, because we think the evidence offered for the purpose of proving that the absent witness was unable to attend, by reason of physical inability, was not sufficient to establish that fact. Finding no error in the ruling of the Circuit Court, the judgment will be affirmed. Judgment affirmed.

Robinson, J., filed the following opinion, dissenting in part. The appellees are entitled in remainder to a tract of land, known as “ Joseph’s Farm,” which includes military lots Nos. 3836 and 3837 ; and the appellant is the owner of an adjoining tract, which includes lots 3825, 3826 and 3835. It appears that the appellant while working its own undisputed property extended its drifts so far northward as to run under the land claimed by the appellees, and this suit is brought to recover damages for coal thus mined and taken away. On petition of the appellees a warrant of resurvey was ordered, and under it both parties located their pretensions.

The two adjoining tracts call for the same beginning, “ a marked chestnut tree, standing 2 degrees ivest, 40 perches from Joseph Warnick’s house.” The tree and house having disappeared, the plaintiffs located the beginning at point A, and the defendant located it at point M, and the title to the land from which the coal was taken depends upon the correctness of the locations thus made by the parties respectively. The jury found in favor of the plaintiffs’ location, and the main question in this case is, the rule by which the damages were to be estimated. The cost of mining coal, it is well known, is much greater than the value of the coal in the bed, as much, according to some of the reported cases, as five times greater. The plaintiff's however contend, that they are entitled to the value of the coal, without deducting the cost of its severance, or in other words, to the value of the coal when it first became a chattel.

On the other hand, the defendant contends that if the coal was mined under a bona fide claim of title to the land, and not taken willfully or through negligence, the plaintiffs are entitled to recover only such damages as they have actually sustained—in ⁵⁶¹ other words, to the value of the coal as it lay in its native bed. The question of damages in actions of this kind was recently considered by this Court in the Barton Coal Company’s Case, 39 Md., 1 , and it was held that the plaintiffs were entitled to recover the value of the coal when it first became a chattel, without deducting the cost of mining. Although I did not concur in that opinion, yet it is my duty to recognize it as the law of this State on the subject, and I do not propose to question in any manner the correctness of the rule thus laid down. On the contrary, I admit that unless this appeal is distinguishable on principle from the case relied on by the appellees, the decision therein rendered is conclusive of the question now under consideration.

There, as in this case, the parties were owners of adjoining tracts, hut the feature, and the broad feature, which distinguishes the two cases is that in the Barton Coal Case, the defendant set up no title to the land from which the coal was taken. It was claimed that owing to the mountainous character of the country, and the difficulty of ascertaining the precise line separating the two tracts, the defendant had inadvertently trespassed upon the plaintiffs' land, believing at the time he was mining on his own property. And accordingly the Court was asked to instruct the jury that if they should find the defendant “ dug and carried away the coal of the plaintiffs without knowing that it was trespassing upon the property of the plaintiffs, and believing that it was its own coal, then the measure of damages to he recovered for such digging and carrying away of coal is the value of the coal in the mine.” (2nd prayer.) The ruling of the Circuit Court in refusing this prayer was affirmed, and it was held under the decisions in Martin vs Porter, 5 M. & W., 551, and Morgan vs. Powell, 3 Adolp. & Ellis, 281, and Wild vs. Holt, 9 Mees, & Wells., ⁵⁶² 472, that although the trespass was inadvertently committed, the plaintiff was entitled to the value of the coal after it was mined. The question of damages for coal mined under a bona fide claim of title to the land did not arise, ñor can it be said that it was considered, much less decided by the Court Nor did it arise in Martin vs. Porter, Morgan vs. Powell, or Wild vs. Holt, decisions relied on in support of the rule adopted in the Barton Coal Case.

On the contrary, the question in each of these cases was the measure of damages to which the plaintiff was entitled for coal taken willfully or through the negligence of the defendant. When, however, the question did arise in Wood vs. Morewood, 3 Adol. & Ellis, N. S., 440, note, Baron Parke told the jury “that if they found for the plaintiff, they were to determine what damages should he given ; that if there was fraud or negligence on the part of the defendant they might give as damages the value of the coals at the time they first became chattels, on the principle of Martin vs. Porter, but if they thought the defendant was not guilty of fraud or negligence, but acted fairly and honestly in the full belief he had a fight to do what he did, they might give the fair value of the coals, as if the coal field had been purchased from the plaintiff." Thus we find that this distinguished Judge, who decided Martin vs. Porter, and who upon motion to set aside the verdict expressed himself pleased with the rule laid down in that case, expressly deciding that the rule did not apply where the coal was mined under a claim of title. And in the subsequent case of Wild vs. Holt, we find the same Judge interrupting Mr. Knowles in argument by saying “ that Martin vs. Porter establishes as against a wrong-doer that no such abatement ought to be made, but the jury were at liberty to give as damages the full value of the coals when they first existed as chattels in consequence of the trespass. Where'there is a real dispute the rule is different ⁵⁶³ When the question again arose in Hilton vs. Wood, Law Rep., 4 Equity, 432, Vice Chancellor MaslinS, referring to the decisions at law says, “It is clear upon the authorities a different principle is applicable when coal is taken inadvertently, or as in the present case under a bona fide belief of title, and when it is taken fraudulently with full knowledge that he is doing wrong, or in other words committing robbery.” This case was followed by Jegon vs. Vivian, L. R., 6 Chan., 760, in which Martin vs. Porter, and Morgan