Franklin Coal Co. v. McMillan

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 vs. Powell, were referred to, and the rule recognized by these cases was strongly pressed in argument by Mr. Jessel, but Lord Chancellor ILitheely said :

“It strikes me as a strong measure to give a man instead of the value of his coal the great advantage of having it worked without any expense for getting and hewing. It seems a rough and ready mode of doing justice, though the remark that a willful trespasser ought to be punished is worthy of observation, and further as was said by one of the Judges, when you deprive a man of his property in this way you deprive him of the management and control of his own property, and he might have made a better bargain. All that, however, is a matter of speculation, and it seems to me the Judges have founded their decision upon the ground of willful trespass as in Martin vs. Porter, where Baron Parke expresses himself pleased with the the rule. But the same learned Baron in Wood vs. Morewood held that where there was a bona fide claim of title the trespasser could be allowed for hewing as well as for other expenses,” and the Lord Chancellor adopted the rule laid down in Wood vs. Morewood. We come now to the United Merthy Collieries Company, L. R., 15 Equity, 46, decided in 1872, the last case to be found in the English Reports on the subject, in which the rule in Martin vs. Porter was again pressed, but Sir James Bacon said that although the trespass was fully proved yet as there was no *564 suggestion of fraud, it was a case for the application of the more lenient rule, and held that the defendant was liable only for the value of the coal, deducting the cost of its severance and carrying it to the pit’s mouth.

. Such, then, is the unbroken array of English decisions beginning with Wood vs. Morewood, and coming down to the United Merthy Collieries Case, in which it has been uniformly held both at Law and in Equity, that the severe rule laid down in Martin vs. Porter has no application where the coal is mined under a bona fide claim of title, and held, too, by the very same distinguished Judge who decided Martin vs. Porter. No case was cited in argument, nor have I been able to find one in England in which a contrary doctrine is held ; and in this country, all the decisions are in accord with Wood vs. Morewood, and against the contention of the appellees. United States vs. Morgan, 3 McLean, 171 ; Stockbridge Comp’y, 102 Mass., 80 ; 53 Penna., 261; Foote vs. Merrill, 54 N. H., 490; 23 California, 306.

If we turn from the reported cases to the elementary writers on the subject, we find without a single exception "they all recognize the broad distinction between a willful trespasser and a bona fide claimant. In Mayne on Damages, after referring to the rule in Martin vs. Porter, the author says:

“ It seems however that where there is a real dispute the case is different, and in such a case the minerals are to be valued as if the coal-bed in which they lay had been purchased from the plaintiff. ” Addison on Torts, 300.

‘£ In actions for trespass in taking away the plaintiff’s coal, he is entitled to recover the value of the coal at the time of its severance, and the trespasser cannot claim any deduction therefrom, in respect of the expense incurred by him in getting the coal unless there is a real dispute of title * * * * ;n case the jury may give such an amount only as the plaintiff would have obtained from the defendant on a sale of the coal.”

*565 The distinction thus recognized is eminently just and proper, and one which lies at the foundation of all actions of trespass in which the elements of malice and bad faith are wanting. And although the rule in the Barton coal case may he applied to a willful trespasser, or where coal is taken inadvertently, which in a legal sense may he construed as negligence, yet where it is mined in good faith under a claim of title, it does seem to me, with great deference to the opinion of the majority of the Court, that there is no reason why the plaintiff should recover not only compensatory damages, hut also the increased value of the coal, arising from the labor bestowed upon it in mining and preparing it for market. It is not pretended that the evidence was legally insufficient to prove that the coal was mined in perfect good faith under claim of title, and the Court therefore erred, we think, in granting the plaintiffs’ thirteenth, and in refusing the defendant’s fifth prayer.

The instructions of the Court in regard to the locations made by the plaintiffs and defendant present, we think, correctly, the law on the subject.

“ Joseph’s Farm,” the land of the appellees on which the trespass is alleged to have been committed, and lot 3825, belonging to the appellant, call for the same beginning, a chestnut tree, marked “ 3689,” standing S 2° W. forty perches from Joseph Warwick’s house, and N. 29° E. 300 perches from the beginning of lot 3754.” The house having disappeared, the appellant undertook to locate the beginning by reversing one of the reference lines of lot 3825. On the other hand the appellees proved by several witnesses on the survey the place where the beginning tree stood. Under these circumstances the Court instructed the jury “ they were not at liberty in ascertaining where the said beginning tree originally stood to resort to reversing the reference lines called for in certificate of lot 3825, unless they were satisfied from the testimony in the *566 cause, that said beginning tree originally stood at the point indicated by the running of the said reference line, or that the true position of said beginning tree had been lost.”

In other words, in ascertaining where the beginning tree originally stood, it was the duty of the jury to consider all evidence in the cause relating to that point, and that the reversing of one of the reference lines of lot 3825 did not give an imperative call which must he gratified, unless they were satisfied from all the evidence that the beginning tree stood at the point indicated by the running of said reference line, or that the true beginning had been lost.

Nor do we see any objection to the fourth prayer. If the fence located by the appellees on the first and home line of Joseph’s Farm” represented the place where the old division fence stood, between the lands of the appellees and those of the appellant, for a period of over fifty years, and that the owners of the land on either side possessed, cleared and cultivated up to said fence and said line, and the said fence and fence line corresponded with the first and home line of Joseph's Farm as located by the appellees, then the jury were at liberty to find from these facts that the first and home line of Joseph’s Farm was correctly located by the appellees. We do not think this instruction is liable to the objection urged by the appellants, that it required the jury to find from the facts set forth in the prayer that the first and home line was properly located without regard to all the other evidence in the case as to the boundaries of the several tracts. It merely instructed the jury, that from the facts thus enumerated, they might ftaá. the home line to have been properly located by the appellees.

It appears the appellants had offered in evidence for illustration plats and certificates of a tract called “ Defiance,” and of a tract called “ »trawherries and Crea’m ” and a patent of “ G-rave-yard Ridge.”

The beginning of Defiance calls for a stone marked “ J. S.,” standing at the end of the first line of lot 3826, *567 and about two perches south and west from a graveyard, and running thence south 68° west thirty-two perches to a bounded dogwood sapling. The stone J. S. having disappeared, the appellant and appellees undertook to locate the graveyard, and then by reversing the first line to find the begining of “ Defiance.” If the graveyard was correctly located by the appellees, and the same as located was about two perches south and west from the beginning of “ Defiance” as located by the appellees, and if the place located by the appellant as a graveyard never was in fact-a graveyard, and the beginning stone “J. S.” could not be found, then the jury were at liberty to find from these facts that the beginning of “Defiance” and the end of the first line of lot 3826, were correctly located by the appellees.

As we have before stated, “ Joseph’s Farm,” “ Michael’s Wonder ” and lot 3825 call for the same beginning. Lot 3826 begins at the end of first line of lot 3825, and “ Defiance ’ ’ begins at the end of first line of lot 3826, and the end of the first line of “Defiance” calls for a dogwood tree. How the appellants located the beginning of lot 3825 and Michael’s Wonder, one of the originals of Joseph’s Farm, by reversing from the dogwood tree at the end of the first line of Defiance in order to find the beginning of that tract and the end of the first line of 3826, and then by reversing the first line of 3826 to obtain the end of the first line of 3825. Having thus found the end of the first line of lot 3825, if the beginning tree of that tract could not be found, the jury might ascertain the beginning by reversing the first line. But “Defiance” being a younger tract than lot 3826 or “Michael’s Wonder,” it was proper to instruct them that the point thus located as the beginning of lot 3825, did not necessarily determine the beginning of said lot unless they were satisfied from all the evidence in the cause that “ the chestnut tree,” called for as the beginning of said lot, stood at the *568 point where such reversed lines terminated when the original surveys of lot 3825 were made.

And for the same reasons there was no error in granting the eighth prayer in reference to the location of the beginning of lots 3836, 3825 and “Michael’s Wonder,” made by reversing from the second line of “ Strawberries and Cream.”

The beginning of “Strawberries and Cream” calls for the end of the fourth line of Graveyard Ridge, and runs thence with part of the fifth line thereof; and the fifth line of Graveyard Ridge calls to end ninety-seven perches on the second line of lot 3826.

In locating “ Strawberries and Cream ” it was necessary therefore for the appellant to locate the fifth line of Graveyard Ridge, and in locating the fifth line of Graveyard Ridge it was necessary to locate the second line of lot 3826. Unless therefore the second line of said lot was ■properly located, the locations made by the appellant could not determine any point in the survey. The ninth prayer was therefore properly granted.

The defendant’s second and third prayers are based upon the theory that if the land. in dispute belonged to Elizabeth McMillan for life, and the mine was opened at the time her life estate began, the plaintiffs being tenants in remainder, are not entitled to recover damages for the coal mined by the defendant.

A life tenant, it is true, is entitled to work mines which were open and being worked at the time the life estate began. But in this case the mine was not opened in the sense in which that term is used. There was an opening at the place where the coal cropped out, and the coal had been used for domestic purposes, but it never had been mined for market. Under such circumstances the tenant for life had the right to use the coal only for such purposes as it was used when the life estate began. She had no right to open the mine for the purpose of mining coal *569 for sale. Ostrey vs. Ballard, Freeman, 445; Clavering vs. Clavering, 2 P. Wm’s, 388; 3 Keb., 709; 2 Mod., 193; Viner vs. Vaughan, 2 Beav., 466; Coke Litt., 53 a, 54 b.

We see no objection to the evidence offered under the first bill of exceptions. The witness had been a boss miner in the employ of the defendant, and as such it was his duty to know the lines and boundaries of the defendant’s property; and one Thomas Gr. Kerr was the general superintendent of the defendant, in charge of its mines and works. The fact that Kerr at the time pointed out to witness the line between the properties of the plaintiffs and the defendant, and told him not to cut or allow timber to be cut over said line, was admissible in evidence.