Mt. Savage George's Creek Coal Co. v. Monahan

Boyd, C. J., delivered the opinion of the Court. The bill in this case was filed by Andrew Monahan and others, the appellees, against the Mount Savage George’s Oreesk Coal Company, and certain of its officers, to enjoin the ⁶⁵⁶ defendants (1) from trespassing upon the plaintiffs’ land and mining and carrying away their coal; (2) from removing supports, etc., necessary to keep open the passages through the defendant company’s mines leading to the plaintiffs’ coal, and (3) from preventing the plaintiffs, their surveyor and helpers from g'oing into the company’s mines and thence into plaintiffs’ coal, and the places from which said company had carried it away, and from interfering with the surveyor from measuring and ascertaining how much of plaintiffs’ coal had been taken and carried away by said company. There are also prayers to require the defendants to disclose how much of said coal the company had taken, when and to whom sold, to account for that taken, as well as for the damages to* the plaintiffs’ remaining coal, and for general relief. The defendants filed an answer in which they denied that they had trespassed upon the plaintiffs’ property or removed any coal therefrom, but subsequently they filed an amended answer in which they admitted that the company had sold and marketed coal estimated at 3,250 tons taken from the land of the plaintiffs, admitted that the company had been paid for said coal, and stated that it was ready to compensate the plaintiffs for it.

They denied that “the said coal was worked or removed from the plaintiffs’ land fraudulently, negligently or wilfully, but say that the said coal was taken purely by accident, without fraud, and without negligence on the part of the said defendants, and also with the utmost good faith, and with the belief on the part of the said defendants that they were taking and removing coal which belonged only to the Mt. Savage George’s Greek Goal Company; and these defendants further say that the defendants ought not to* be required to pay for the said minerals more than its value in its native state before severance, to the said plaintiffs.” The defendants in open Court waived “any objection to the jurisdiction of the Court in this case as to the determination of- the question as to* the quantity of coal removed and the value of the coal, all of which will be determined, and the Court can pass upon the issues in this ease the same as if it ⁶⁵⁷ were a trial at law and the same as if the ease were tried by the Court, sitting as a jury.” The attorneys for the plaintiffs assented to that agreement, and it was made a matter of record. The lower Court adopted the defendants’ evidence in regard to the amount of coal taken out of the land of the appellees hy the company, the cost of severing, loading and transporting it to the mouth of the mine, and there seemed to be no controversy as to its market value. The principal questions, therefore, to be determined are whether the Court was right in finding that 4,508 tons of the coal were negligently mined, and, if so, what measure of damages should he allowed.

The can not agree1 with the appellees that as it was a question of fact whether the coal was negligently mined, the decision of the lower Court as to that is conclusive and can not he reviewed. In equity cases findings of the lower Court as to questions of fact are reviewable on appeals, and if tbe agreement referred to above be construed as changing that rule in some respects, it could not have been intended to have such an effect as that contended for. The agreement sugr gested some uncertainty as to the mode of procedure, and the plan of offering instructions was adopted—Junan IIkxdkb,sox remarking that that could be done so as to secure the right of appeal. Some of the prayers clearly presented the question of negligence, and while bills of exception were not filed, the Judge in his opinion rejected all of the prayers offered by the defendants, except the first which does not refer to that subject.

Tbe prayers in the record, together with the endorsement on them of the disposition made of them hy the Judge, and the statement in the opinion that “all the’prayers submitted by the defendant, except the first, are rejected,” must under the circumstances be regarded as sufficiently presenting the right to have his finding reviewed. 1. There is no real controversy about the division line: between tbe properties. That could have been ascertained before the defendant company commenced mining in November, 1916, as well as in March, 1917. Mr. Stem, the presi ⁶⁵⁸ dent of the company, testified that they commenced mining sometime from the 10th to the 15th of November.

The Maryland coal and Iron Company formerly operated this mine, and Mr. Stem was treasurer of that company, and Mr. Avery, one of the defendants, was president. Both before and after the defendant company commenced operations Mr. Stern and Mr. Farrell, a director of the defendant company, tried to get a lease of the Monahan coal, but the owners declined to lease it, and warned Messrs. Stern and Farrell not to- get over the line. The defendants either knew, or were grossly negligent in not knowing that the workings were at least close to the line, yet, although the -line could have been easily and promptly established, it is now said that it was not fixed in the mine until after the injunction was issued.

Anthony Monahan testified that on the 5th of November, 1916, Mr. Avery, of the defendant company, told him, “We are up to your line, your property line, and he says, ‘We can’t go noi further if we don’t get your coal.’ ” He told him they would not lease the property—that the heirs were opposed to a lease, and “I told him all we wanted him to do was to keep- off our line.” Francis Monahan testified that he heard that conversation. Mr. Avery denied it, but said that he understood they were from 75 to 100 feet from the line. Mr. Stem said the reason they were anxious to get the Monahan coal was “because it was very close to our property,” and in reply to the question, “You knew it was very close to your workings in there?,” he said, “Yes, sir.” On cross-examination of Mr. Farrell, in reference to the lease, this appears: “Q. The reason was that you were close to their coal, or on their coal ? A. I didn’t know it.

Q. In a general way, isn’t that the reason you tried to get this lease? A. The reason we tried to get a lease was because we wanted their coal. Q. Isn’t that the reason—because you were up- to it? A. Might have been it.

Q. It was it? A. Well, yes.” Mr. Spear testified that he went with the defendant company about February 1, 1917,—first as mine foreman and then as superintendent—and “just as soon as I got there I said to Mr, Stem ⁶⁵⁹ that we should make some inquiry about the lines,” and Mr. Stern employed Mr. Haverstick as engineer. This also appears in his evidence: “Q. Did Mr. Stem tell you it was all right? A. Ho, sir; he didn’t.

He didn’t say anything abont it. He didn’t know. I didn’t know anything about it until the surveyors told us. Q. Did Mr. Haverstick ever tell you it was all right?' A. As soon as Mr. Haverstick made his survey he told me we would have to stop the left.

Q. When was that? A. I couldn’t tell just when; I couldn’t remember the dates.” Mr. Matthias, a mining engineer, testified as to the distances the various headings were run beyond the line before the injunction was served. Two of them wore run over the line 325 or more feet, one about 400 feet, one about 186 feet, three 150 or more feet, two about 125 feet, and four varying from 75 to 115 feet—although they were not all run at right angles to the line, as shown by the plat, and hence the end of the headings would not be as far beyond the boundary, in a straight line, in some instances as the above figures might suggest. The evidence was therefore ample to. show negligence of a very decided character.

It may be that no one actually know that the defendant company was working beyond the line, but they at least knew that they were near it, and had been warned not to get over it. Why it would take from early in .November until after the injunction was served, in March, to find out where the line was is not satisfactorily explained —especially as it was so soon ascertained after the injunction was served. It ought to have been a very simple matter for an engineer to locate a linei such as this, about which there seems to be no real controversy. They"knew that sometime before the company commenced operations, the former company was within from 75 to 100 feet of the line, and some of the officers of that company were officers of this one, yet several of these headings were run between three and four hundred feet beyond the line.

The circumstances were such as to suggest the propriety, not to say necessity, of fixing the line in the mines definitely before any coal was. taken out ⁶⁶⁰ in that direction. Nothing said by Mr. Matthias excused the defendants, -unless it be what he told them about the line at the point where the Court below only required the company to pay the royalty of ten cents a ton for coal taken out, but he did not then know definitely where the line was, and the officers and agents of the defendant company had a much better opportunity to know* it, as they had access to the mines at all times. The defendants knew he had not connected up the lines with their workings, hut after the injunction was gotten out it only took a few days to find oiit that the defendant had taken out large quantities of the plaintiffs’ coal. If the defendants’ theory be adopted, all that would he necessary for a trespasser to do would he not to have the lines established until proceedings were taken against him, and then claim he did not know he was over.

That will not do in a case such as this, where there was manifestly good reason to fix the line, if the defendant company was anxious to' keep within its own boundaries. 2. The next and most important question is the measure of damages, to he allowed. The rule in this State was definitely fixed prior to the Acts of 1894 (Oh. 287), which is. now Section 92 of Article 75 of the Annotated Code. It may be that the decisions of this Court are not in accord with some of those cited by the appellants from other jurisdictions, hut the measure of damages fixed in Barton Coal Co. v. Cox, 39 Md. 1 ; Franklin Coal Co. v. McMillan, 49 Md. 549 , and Blaen Avon Coal Co. v. McCulloh, 59 Md. 403 , has not only not been disturbed, hut has been recognized in Parker v. Wallis, 60 Md. 15 ; Atlantic, etc., Coal Co. v. Md. Coal Co., 62 Md. 135 , and Peters v. Tilghman, 111 Md. 227 .

In the Barton Goal Go. case the question was fully argued by some of the ablest attorneys in the State and heard by Ciiiee Judge Bartol and Judges Bowie, Miller, Alvey and RoBijsrsojsr. The Court, thoroughly reviewed the; English decisions and other authorities and sustained the third prayer of the plaintiffs, which, after referring to certain facts not neces ⁶⁶¹ sary to repeat, concluded as follows: “then the plaintiffs 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 native1 bed, and before, it was put upon mine cars, without deducting the expense of severing said coal from its native bed.” It further sustained a prayer to the effect that if the jury found that the defendant knew that the lands were not its own, the plaintiffs were entitled to exemplary damages. The Court said that the: rule prescribed in the plaintiffs’ third prayer conformed in principle1 to that in Martin v. Porter, 5 M. & W. 351; Morgan v. Powell, 3 Ad. & El., N. S. 278, and Wild and Others v. Holt, 9 M. & W. 672. In Martin v. Porter, Ba ron Parke ruled, as quoted in the Barton Coal Company Case, that the plaintiff “was entitled to the value of the coal as a chattel at the time when the. defendant company 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 dug, to the pit’s mouth.” Judge Bobinsox dissented in the Barton Coal Co. Case, and when the case of the Franklin Coal Co. v. McMillan came before the Court filed a vigorous dissent on the ground that in his opinion the Franklin Coal Company Case was distinguishable from that because the defendant contended that the coal was taken under a churn of title.

He relied on the case of Wood v. Morewood, 3 Ad. & El. N. S. 440, and others cited by him, and he quoted from it to show that if there was fraud or negk'gence on the part of the defendant, damages could be given on the principle of Martin v. Porter, but in the absence of fraud or negligence the damages could be confined to the value of the coal in its native bed. • We refer to Judge Bobixsox's opinion to show that the. question was distinctly raised in the Franklin Coal Company Case, but the majority of the Court refused to follow the view contended for and the rule announced in the Barton Coal Company Case was followed. Tt will he noted that in Wood ⁶⁶² v. Morewood, Baron Parke said that, if there was fraud, or negligence the jury could give the damages settled in Martin v. Porter. In the Blaen Avon Coal Company Case, this, Court again followed the rule adopted in the BaA'ton Coal Company Case, and repeated in the Franklin Coal.

Company Case. In addition to the English cases cited, the Court referred to decisions in North Carolina, Maine, California and Illinois which announced the same rule of compensation. Judge Ritchie, who delivered the opinion, called attention to the fact that in the Illinois cases, and in Martin v. Porter, and Morgan v. Powell, “while'the amount to be recovered is fixed by the worth of the coal when first dug, the mode of reaching- the value is through the price of the. coal after it arrived at the pit’s mouth, and allowing a deduction for the cost of conveying it thither from the place where it was mined. This is said to be because it could have no value as a salable article without being taken from the pits, and that was the earliest moment at which the plaintiff could have repossessed himself of the coal.

But, as Lord Denman, in Morgan v. Powell, says, ‘Instances may be easily supposed where particular circumstances would vary this mode of calculating the damage.’ ” Judge Kitohie then went on to show that where the coal is actually carried away and sold, “It does not seem material in a case like this, whether the value of the coal at the mine’s mouth he first ascertained and then, an allowance he made for the hare expense incurred in its simple conveyance thither, or witnesses be asked to estimate directly 'its value just prior to its removal. The