55 Ind. App. 523 | Ind. Ct. App. | 1913
It appears from the record that from June 1, to August 8, 1908, William Tipton was the owner of fifty acres of land, described in the complaint, situate near the city of Gary, in Lake County, Indiana. At the last named date, William Tipton died intestate, leaving as his only heirs at law, his widow Melissa Tipton and his daughter, the appellee, Eva Spencer. Melissa Tipton died intestate September 21, 1908, leaving appellee as her only heir at law, who thereupon became sole owner of the lands, and so continued to the time of the trial. The land contained extensive deposits of sand. Originally three suits were filed in the court below against appellant and The Garden City Sand and Gravel Company, one by the administrator of the estate of William Tipton, one by the administrator of the estate of Melissa Tipton, and one by appellee, to recover for sand alleged to have been wrongfully taken by the defendants, within the respective periods when William Tipton owned the land, and when Melissa Tipton and appellee owned it in common, and when appellee was sole owner
The material averments of the complaint are in substance as follows: That defendants are engaged in the business of buying and selling sand and gravel; that appellee between certain specified dates owned a fifty-acre tract of land, described in the complaint; that at divers times between said times “the exact times being unknown to this plaintiff, said defendants wrongfully broke and entered said land of the plaintiff and wrongfuly took and carried away large quantities of sand and gravel from said real estate of this plaintiff, amounting to 1,000 or more cars, of the value of $20,000; that said acts of trespass were committed without the consent of the plaintiff, and without authority by law; that defendants well knew at the time of so entering upon plaintiff’s real estate that they were upon the same without authority; that they had endeavored to purchase said land, but failed, but notwithstanding all this, they unlawfully, intentionally and wilfully entered said premises and took and carried away as above averred the sand and gravel of this plaintiff, to her damage as averred.” Defendants filed an answer in general denial. Trial by the court, without a jury. Finding and judgment for costs in favor of the defendant, The Garden City Sand and Gravel Company, and in favor of appellee, against appellant in the sum of $3,698.15, from which appellant prosecutes this appeal. The sole error assigned is the overruling of the motion for a new trial, which motion presents the single question of whether the damages assessed are excessive.
Under the averments of the complaint, appellee seeks
Note.—Reported in 103 N. E. 426. As to the measure of damages for unintentional trespass where property has been carried off premises, see 54 Am. Rep. 421. As to the measure of damages for the wrongful working of a mine, see 8 Ann. Cas. 43; Ann. Cas. 1913 A 562. See, also, under (1) 38 Cyc. 1002; (2) 3 Cyc. 360; (3) 38 Cyc. 1116; (4) 38 Cyc. 1072, 1073; (5) 38 Cyc. 1133, 1141; (6) 38 Cyc. 1133; (7) 38 Cyc. 2032; (8) 38 Cyc. 1147; (9) 13 Cyc. 105, 119.