Barton Coal Co. v. Cox

39 Md. 1 | Md. | 1873

Bowie, J.,

delivered the opinion of the Court.

It appears from the record, that the suit in which this appeal is taken, was instituted originally, by John A. Smith, John S. Coombs, and Edward Hoye, against The Barton Coal Company, the appellant.

The declaration was filed in the names of the co-plaintiffs, containing three counts, which, as far as the distinctive forms of action can be recognized in our present system of pleading, may bo designated as trespass quare clausum fregit, ei, de bonis asportatis combined.

The first count, is a general one, charging that the defendant, broke and entered the locus in quo and mined, dug, excavated, and carried away large quantities of coal.

The second and third, set out the trespasses with greater minuteness, and charge that the defendants then and there raised, large quantities of coal, iron ore, and other minerals, and then and there, took, carried away and converted it to their own use. The defendants “pleaded” they did not commit the wrongs, etc., and “freehold in the defendants,” on which pleas issues were joined, and a warrant of resurvey issued, executed and returned, showing no conflict of title or location, but that both parties located the several'tracts, on which the trespass was complained of, in. the same manner.

The cause having been removed, on the suggestion of the appellant, from the Circuit Court for Allegany County, to the Circuit Court for Washington County, on the 22nd July, 1872, the record was filed in the latter Court, the death of John A. Smith suggested, and motion made for leave to make new parties, by inserting the names of his executors, Walter S. Cox and Thos. C. Cox; which leave was granted on the 31st July, 1872, and new parties made.

The plaintiffs then filed their replication to the second plea of the defendant, viz: “that the close in the declaration mentioned, was not the close of the defendant.”

On the 19th November, 1872, the defendants filed their plea of ne unques executor, which on motion of the plaintiff's was stricken out on the same day.

This action of the Court below, is made the first subject of objection, on the ground that the appellant had a right to know the'rccovery was by the proper parties, otherwise a second recovery might be had for the same cause of action, and the issue could only be made by plea. There is no doubt that the identity and verity of the representative character, in which a suit is brought, or maintained, by a person claiming to be executor, or administrator, must be established, in order to enable him to recover, as well as when a party sues individually. Whence, whenever a defendant has reason to doubt whether the plaintiff is the person he assumes to be, he may plead in abatement, i. e., show cause why he ought not to be impleaded, in the manner and form he now is; these pleas being dilatory, must be pleaded within a certain time prescribed by tbe Court and generally before a general imparlance or continuance — otherwise an infinite delay might ensue.

The 3rd sec. of Art. 2, of Pub. Gfonl. Laws, title, “Abatement,” provides that if tbe plaintiff in any action shall die before judgment, his heir, executor or other proper person to prosecute such action, may appear and prosecute the same, and such other proceedings shall be had to bring tbe cause fairly to trial as the Court may deem proper.

It does not appear from the record, or agreement filed in the cause, whether any term intervened, between the appearance of the executors, which was on the 31st of July, 1872, when they filed their replication, as of April Court, 1872, and November Term, 1872, when the appellants filed their plea of ‘ ‘ne unques executor;’ ’ but this Court must presume the Court below for some sufficient cause directed the plea to be stricken out, so great a lapse of time having occurred between the appearance of the executors, and the plea, and a continuance had. The proper time for such a plea was when the executors asked leave to appear, and the plea should have been entered at that term.

At the trial five bills of exceptions were taken by the appellants, and three by the appellees, but no appeal being taken by the latter, these are not under consideration .

The first exception of the appellants, was taken to the admission of certain certificates of letters testamentary to the executors, and in connection therewith, copies of the last will and testament of their testator and of probates of attesting witnesses thereto annexed, under the hand of the Register of Wills and seal of the Orphans’ Court of Washington County, District of Columbia, and subscribed by the Judge thereof, which were offered by the plaintiffs below to prove the representative character of the executors of Smith.

However informal and irregular these certificates may have been, and whatever error was committed by the Court below, in admitting them, that error was corrected and rendered harmless by the introduction at a subsequent stage of the trial of an exemplification of the letters testamentary, authenticated according to the testamentary system of this State. Vide Art. 93, sec. 76, of the Code of Pub. Genl. Laws.

The appellant’s second bill of exceptions is taken to the rejection and exclusion as evidence, of a letter offered by the appellant, purporting to be signed by Doctor Samuel P. Smith, ag'ent for Mrs. Sally Smith, dated the 5th of September, 1868, addressed to T. S. Cunningham, Esq.

We cannot perceive any ground for questioning the propriety of the Court’s decision in this respect. The writer of the letter was himself before the Court as a witness. He had testified that although he had acted as agent for John A. Smith in his life-time, and for his widow and legatee Mrs. Sally Smith since his death, he had never been agent for Hoye and Coombs, or the executors of Smith; under such circumstances, to have admitted the letter of one who was a stranger in interest to the parties to the cause, would have violated the elementary rules of evidence.

■ The third and fourth exceptions of the appellant are taken to the exclusion of certain evidence, offered by the appellant in mitigation of damages. The particular statement and account referred to in the third, having been lost, that item of evidence is necessarily disposed of, but the same principle is said to be involved in the fourth exception, in which the appellant offered to prove the costs, expenses, and charges of removing the coals mined from the rooms in which the coal lay when first taken from the bed of the Barton Goal Mines, and the costs and expenses of removing it to the opening of the mines, and the ruling market value thereof, after being transported to market, and cost of such transportation. If this exception was interpreted literally, it would be sufficient to say, that evidence of the value of coal in the Barton Coal Mines, and of the costs of removing thence to its opening and to market, was not evidence of the value of coal in the appellees’ mines, and the costs of transportation to the opening and thence to market, and however close these mines may be in fact, that such evidence is not admissible, by comparison, when direct testimony might be ^procured, but the question really involved and intended to be presented, is that submitted by the third prayer of the appellees, and which constitutes a part of the appellants’ fifth exception, and which declares, if the jury find the facts mentioned in their first prayer, then they, the appellees, 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 native bed, and before it was put upon the mine-cars, without deducting the expense of severing said coal from its native bed. If the appellees were entitled to recover the price of the coal as alleged in the third prayer, the evidence of the cost of severance and transportation, designed to be offered by the appellants in their fourth bill of exceptions, was impertinent, immaterial, and inadmissible.

There are two standards, or measures of damages to property, the one, the severe; the other, the lenient, which according to some of the authorities, depend upon the intention or mala fides of the defendant, and according to others, upon the form of the action.

This distinction is admitted, in the very recent case, of The United Merthyn Colliery Company, ex parte The Powell Daffryn Steam Coal Company’s Claims,” cited by the appellant, from “ The Weekly Reporter and Solicitors’ Journal,” December 1th, 1872. This was a motion made in behalf of the former company, for obtaining from the Court, the construction of an order made previously, by which the former company were ordered to pay the value of certain coal (obtained by them under a trespass) at the pit’s mouth, deducting the cost of severance and the cost of carrying to the pit’s mouth. The solicitors in support of the motion, arguing that just allowances of winning coal are deducted in cases of trespass when there has been no fraud, say, in such cases, there is a severe rule and a lenient or mitigated rule.

The Court, Bacon, V., C. held “the defendants here must be taken as purchasers, the plaintiffs, although they have suffered a wrong, must not have more of the benefit of that wrong, than was actually the case. All just allowances must mean actual disbursements, but without profit. The plaintiffs must be in the same position as if they had severed the coal and brought it to the bank themselves, apart from any profit.”

The circumstances of the case are not disclosed, further than may be inferred from the observations of the counsel, and the language used by the Court. The appellees’ third prayer, does not, it is said, advert to the distinction referred to in the above case, the existence of fraud, or knowledge on the part of the defendant, as in the case of Ridgely vs. Bond and Wife, 17 Md., 14.

If this were an action of trover, the plaintiff according to the authorities, might recover the enhanced value, and is not confined to the value of the material either at the place of taking or of manufacture. 2 Greenleaf Evid., Sec. 276; Greenfield Bank vs. Leavitt, 17 Pick., 3; Baker vs. Wheeler, 8 Wend., 505; Rice vs. Hollinsbeck, 19 Barr, 664.

Adverting to these or similar cases, Mayne, in his work on Damages, p. 289, says, “A curious question has been raised in America, as to the value at which an article is to be estimated,.which has been changed into some new form by its wrongful taker. In New York, it has been several times ruled, that the whole value of the article in its new form may be recovered; as for instance, where timber had been converted into boards, wood into coal, black salts into pearl ashes.” See cases cited, Sedgwick on Dam., 565, (4th Ed )

* * * * “ But this merely decides who shall have the property, not what amount of damage shall be received for the alteration.” “Itmay be said that if the property of the improved article, continues in the original owner, he must be paid for its detention on its full value, but I conceive that this by no means follows.” Referring then to the English authorities, he proceeds:

“The only English authority, that I am aware of, which seems to oppose this view, is that of a class of cases in which the question has been, as to the mode of valuing minerals wrongfully severed and carried away. The form of the action in the first three cases, was trespass, and there it was held that the coal should not be estimated at its value as it lay in its bed, but at its price when it first became a chattel, and that no deduction could be made on account of the labor bestowed in digging it.” Mayne on Dam., Tit. “ Trover,” 291. It would appear from these extracts, there is a diversity between the American and English cases, in applying the rule of damages and the American cases themselves are far from being uniform.

The case of Forsyth vs. Wells, 41 Pa., 291, was an action of trover, where the taking was by mistake, because of the uncertainty of boundaries ; it is founded on Baron Parkk’s decision in Wood vs. Morewood, 43 Eng. Com. Law, 810. It is conceded there are cases of trespass, where the Judges have adopted the mode of calculating damages for taking coal, substantially equivalent to the rule laid down by the Common Pleas in the judgment appealed from, where no wilful wrong was done, and refers to Martin vs. Porter, 5 Meeson & Welsby, 351, but prefers the rule in Wood vs. Morewood.

Herdie vs. Young, 55 Pa. State Rep., 176, was an action of replevin, for logs, cut and carried down to a boom. It was held where the injury was inadvertent, the measure of the damages, would be the value of the logs in the boom, less the cost of cutting and hauling them to the river, and driving them to the boom.

The United States vs. Magoon, 3 McLean, 171, was an action of trespass for digging and carrying away lead ore from the lands of the plaintiff.’ The defendant suffered a default and a jury were sworn to assess damages. The plaintiffs contended they were entitled to the value of the ore after it was dug, but the Coui;t instructed the jury, that was not to be the measure of damages, but the injury done to the soil by the trespass. That the digging and carrying away by the same persons, is presumed to be a continuous act, and the lead ore removed, must be considered in aggravation of the trespass upon the soil.

The case of Goller vs. Felt, 30 Cal., 482, was an action for wrongfully removing the gold bearing earth from a claim and extracting the gold. The value of the gold less the expense of digging and separating it from the realty, so as to make it personal property, was held to be the measure of damages.

The case of Coleman’s Appeal, 62 Pa., 278, was a bill for accounting between tenants in common. The Oourtsaid ccthe case of the defendants is entitled to still more favorable regard than that of a trespasser, though by mistake or ignorance. There the plaintiff’s property has been taken wrongfully and against his will. Here a tenant in common exercises his undoubted right to take the common property, and he has no other means of obtaining his own just share, than by taking at the same time the shares of his companions. The value of the ore in place is, therefore, the only just basis of account.”

The case of The Stockbridge Iron Co. vs. Cone Iron Works, 102 Mass., 80, was a suit in equity for injury to plaintiff’s land, by digging and excavating iron and other ores. The standard of damages was said to be the value of the ore as it lay in the bed, but the point does not appear to have been discussed.

In the absence of any adjudication in this State, on the question, and the conflict of authorities in others, we must endeavor to deduce the principles which should govern in cases of this peculiar character, from a condensed statement of a few of the leading cases in England, where this species of property has long been the basis of national wealth, and often the subject of judicial consideration.

Martin vs. Porter, 5 Meeson & Welsby, 351, is a case very analagous to the present. That was an action of trespass for breaking and entering the plaintiff’s close, and taking and carrying away coal, etc. The defendant was owner of the adjoining estate and had worked the coal under the plaintiff’s land. At the trial at York Assizes, the question was upon what principle the damages were to be assessed; Parke, Baron, was of opinion, “that the plaintiff would have been entitled in an action of trover, to the value of the coal as a chattel, either at the pit’s mouth or on the canal bank, if the plaintiff had demanded it at either place, and the defendant had converted it, without allowing the defendant anything for having worked it, and brought it there; that not having made such a demand and the action being trespass, he was entitled to the value of the coal as a chattel at the time when the defendant 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 got to the pit’s mouth,’’ etc.

Leave was given to move to reduce the damages if the Court in Banc, should be of opinion, that the proper measure of damages, was the value of the coal in the bed.

At Easter Term following, on motion to reduce the damages, before a full Bench, it was argued that to allow any other estimate of damages (than the value in the bed) would be to confer on the plaintiff a large profit, in the absence of any thing either done, or suffered by him, that if he retained the amount given, on the principle laid down by the learned Judge, he is paid not merely the value of the coal, but a double value. All the Judges seriatim decided, that the damages should not be reduced.

Parke, B.,

said : “The plaintiff is entitled to be placed in the same situation as if these coals had been chattels belonging to himself, which had been carried away by the defendant, and must be paid their value at the time they were begun to be taken away. He had a right to them, without being subject to the expense of getting them, "which was a wrongful act by the defendant, and for which the defendant cannot claim to be reimbursed. I am not sorry this rule is adopted; as it will tend to prevent trespasses of this kind, which are generally wilful.”

This case was decided in 1839, and was followed by Lord Denman, C. J., in Morgan vs. Powell, 3 Adol. & El., N. S., 281, (43 E. C. L., 736,) in 1842, which was also an action of trespass, for the breaking a mine, digging and carrying away coal, — and by Parke, B., in Wood vs. Morewood, Derby Assizes, cited in 3 Adol. & Ellis, 440, (43 E. C. L., 810,) in which there was a count in trover. See also, Wild and others vs. Holt, 9 Mees. & Wels., 672, where the case of Martin vs. Porter is again re-affirmed.

Wood vs. Morewood was tried at Derby Summer Assizes, in 1841, before Baron Parke. The plaintiff claimed damages on the principle laid down in Martin vs. Porter, 5 M. & W., 351, which amounted to £6,000. The defendant contended that the jury were the proper judges of damages, and that in this case, where there was no imputation of fraud or want of reasonable care or caution on the part of the defendant, they might assess the damages on the principle that the defendant should pay the fair price per acre at which the bed of coal would have been sold to a person who was at the expense of getting it.

Baron Parke told the jury, “that if there was fraud or negligence on the part of the defendant, they might give as damages under the count in trover, the value of the coals at the time they first became chattels, on the principle laid down in Martin vs. Porter; but if they thought that the defendant was not guilty of fraud or negligence, but acted honestly and fairly in the full belief he had a right to do what he did, they might give the fair value of the coals, as if the coal fields had been purchased from the plaintiffs.

This case was followed by Morgan vs. Powell, 3 Adol. & Ellis, N. S., 278, (43 Eng. Com. L., 734,) in 1842, an action of trespass for breaking and entering and taking and carrying away coals, before Lord Denman, C. J., Patteson, Williams, and Coleridge, Js. On a rule to show cause why the verdict should not be reduced by the amount of the expense of getting the coals and bringing them to the pit’s mouth.

In the course of argument reference was made to the principle of estimating damages laid down at nisi prius by Parke, B., in Morewood vs. Wood.

Lord Denman: “We are of the opinion that the rule in Martin vs. Porter, is correct and properly applicable to the present case. The jury must give compensation for the pecuniary loss sustained by the plaintiff from the trespass committed in taking his coal, compensation having been separately given for all injury done to the soil by digging, and for the trespass committed in dragging the coal along the plaintiff’s adit; and the estimate of that loss depends on the value of the coal when severed; that is, the price at which the plaintiff could have sold it. This plainly was the value of the coal itself, at that moment. The defendant had no right to be reimbursed for his own unlawful act, in procuring the coal, nor can he, properly speaking, bring any charge against the plaintiff for labor expended upon it. But it could have no value as a saleable article without being taken from the pit; any one purchasing it there would, as of cottrse, have deducted from the price the cost of bringing it to the pit’s mouth. Instances may easily be supposed where particular circumstances would vary this mode of calculating the damage, but none such appear here.”

The amount of the verdict wasJ ordered to be reduced by the cost of bringing it to the pit’s mouth.

However inconsistent the allowance may be with the general principles announced, it is clear that Martin vs. Porter was emphatically approved and affirmed, and Wood vs. Morewood, although referred to in the argument, was not noticed in the decision.

Again in Wild and others vs. Holt, 1842, before Parke, B., Alderson, B., Gurney, B., and Rolfe, B. In reply to the argument that the defendant was entitled to deduct the expense of getting the coal, etc.; Parke, B., said, “The case of Martin vs. Porter, establishes that, as against a wrong-doer, no such abatement ought to be made, but that the jury are at liberty to give as damages the full value of the coals when they just exist as chattels, in consequence of the trespass.”

Referring to the rule laid down in Martin vs. Porter again, he says “which is a very salutary one, because the parties must know — at least, they may know by proper dialling — that they are trespassing on their neighbor’s property.” 9 M. & W., 674.

/ The necessity and importance of this rule can scarcely be magnified, in a community where the wealth of the ^country consists in its mineral deposits; and the facts developed in evidence, show the agents of the appellants/ at least, had the means of knowing, if not actual know-] ledge of the lines of the corporation by which they were employed. It is impos,1 ole in cases of this kind to discriminate between natural and artificial persons, and the latter must be held responsible for the negligence and omissions of its employes as well as their acts, in the discharge of duties confided to them.

The appellants’ counsel in their brief and argument insist, that the correct basis of the rule of damages is the’’principle of compensation; that the appellees’ third prayer, without reference to surrounding circumstances, requires the jury to give as damages what the coal was worth after it was severed from its native bed, without deducting the expense of severing, which was punitive in its effect, “instead of being compensated and indemnified for the injury sustained, they were enabled to realize an enormous profit out of a trespass which, for anything that the third prayer required the jury to find, might have been committed by the defendant inadvertently, and in the honest belief that it was mining its own coal.”

These arguments were used in the case of Martin vs. Porter, though perhaps not so forcibly.

The measure of damages was defined in that case, without regard to circumstances of aggravation ; the plaintiff was said to be entitled “ ex debito justilicc,” to the value of the coal, as a chattel, when the defendant began to take it away, and the defendant had no right to be reimbursed for doing a wrongful act, a rule which was necessary to prevent trespasses which were generally wilful.

We do not understand that the appellants contend that a different rule of damages prevails in trespass, q. c.f., and trover, or that any objection is made to the rulings in consequence of the form of the action.

Although such a distinction is adverted to in some of the authorities, it applies rather to the allowances to be made, in consequence of the time and mode of the demand ; than to any variance in the principle of right, in adjusting the compensation, except where circumstances of aggravation are relied on in trespass.

Mayne, in his work on Damages, 290, states the rule as being the same in both forms of action.

The rule prescribed by the third prayer of the plaintiffs conforms in principle to that in Martin vs. Porter, and the cases of Morgan vs. Powell, and Wild and others vs. Holt.

The appellees’fourth prayer differs from the third in asserting that Jcnowledge on the part of the defendant, that the “ locus in quo” was not its own lands, at the time the trespasses were committed, entitled the plaintiffs to exemplary damages; the’ correctness of which is impliedly admitted by the appellants in their argument, that this circumstance was a proper consideration, upon a question of exemplary damages, and should have been incorporated in the third.

Every trespass, whether wilful or not, is an injury, for which the party wronged is entitled to compensation, and the measure of compensation, prescribed by the third prayer, was the lowest established by law, in.this peculiar class of cases, independently of all aggravating features.

The Court below, was therefore right in rejecting the testimony proposed in the third and fourth bill of exceptions, and in granting the appellees’ third prayer. The cases to the contrary, are generálly cases in equity, where greater latitude is assumed by the Courts in controlling the rights of the parties.

The appellant’s second prayer, being the converse of the proposition contained in the appellees’ third, is disposed of by the views above expressed, and was, in our opinion, properly rejected for the reasons assigned.

The first prayer of the appellant, which is included in his fifth bill of exceptions, is based upon the theory that it was not competent for a witness not present at the survey to testify for the plaintiffs, to prove any object connected with the survey, or intended for illustration thereof. This prayer is understood to refer to the testimony offered in the plaintiffs’ first bill of exceptions, which is not before this Court, and in which the Court rejected the testimony indicated in the appellant’s prayer; to that extent the appellant had the benefit of the principle involved in it, but however correct such ruling might be, when applied to any particular witness, at the time of the examination, a general instruction, after the testimony was closed, that if they find from the evidence, etc., any of the witnesses were not present, etc., such an objection would be too late, upon the well established principle, that excepting to testimony must be taken before, or at the time of its being submitted; it cannot be raised after the testimony is closed, except upon a general reservation of all exceptions to evidence, and then the particular evidence objected to should be pointed out. The appellant’s first prayer was therefore properly rejected, no reservation of this kind appearing, and nothing in the record indicating to what witness or witnesses it was intended to apply.

The appellant’s fourth, fifth and eighth prayers, included in his fifth bill of exceptions, affirm, first, that if the jury find that John A. Smith executed the will offered in evidence by the plaintiffs, then the will vests the title to the “locus in quo” in Sally Smith, the devisee, and no injury to the lands, as real estate, and to the fee in said lands, can be recovered by the executors of John A. Smith, under the pleadings and evidence in the cause. Secondly, that the executors cannot recover on the pleadings and evidence, for any injury done to the lands which would affect their value, as coal lands, after the testator’s death.

Thirdly, that the executors, are not entitled to recover on the pleadings and evidence, for any damages to the coal now remaining in the lands in controversy and which would affect the right and interest of Mrs. Smith as devisee.

The argument in support of these propositions, as condensed from the brief is, that the declaration claims only damages for mining and carrying away coal; there is no allegation of injury done by unskilful mining, and gives no notice that such damages would be claimed as were claimed under the rulings of the Court in the third and fourth prayers of the plaintiffs; such damages, could only be claimed on a special allegation: Mr. Smith, having devised all his estate real, personal and mixed, to Mrs. Smith, the lands in controversy passed to her, and such damages as did not result necessarily and during the life of the testator, but would only affect their value as coal lands, after his death, could not be recovered, under the declaration which did not set them out specially.

That the damages claimed are partly for mining improperly, etc., whereby the lands were injured as coal lands — for which the executors could not recover, because that was recoverable by the devisee in her own right.

The action in this case, as we have seen, was instituted in the life-time of the testator Smith, by his co-plaintiffs and himself, holding as alleged in the third count undivided portions in fee simple in the lands ; the trespasses alleged, were injuries to their right and estate as tenants in fee, and any act of trespass, which impaired the value of the estate, either temporarily, or permanently, gave the plaintiffs but one cause of action; the narr. charged sundry trespasses between the 21st of August, 1864, and the day of instituting the suit, less than three years; the injuries complained of, are digging and sinking divers mines, drifts, pits, shafts, etc., of great length, breadth and depth, and from out of said mines, etc., raising earth, soil, stones, coal, iron ore and other minerals, etc., and taking and carrying them away ; operations of this kind could not be continuously carried on for a series of years, without impairing the fee simple value of the land, in the life of the testator ; and his co-plaintiffs and himself, and his executors after him, had the right to recover the full value of the property injured, even if it absorbed the fee simple. The devisee took only what remained, after the testator’s death. She could institute no action for the consequences of the trespass committed in the testator’s life; there could be but one satisfaction for the injuries done him.

Opening of mines is a species of waste, which tends to the permanent and lasting loss of the person entitled to the inheritance; vide Cruise's Digest, title III, ch. II, sec. 16. A tenant for life cannot open a new mine. The narr. therefore charged the most serious injury which could have been inflicted on the fee, or inheritance, and necessarily involved all the natural results of waste, for which damages were recoverable without further specification. Art. 75, of the Code of P. G. Laws, enacts, that “ whatever facts are necessary to constitute the ground of action, shall be stated in the pleading and nothing more.” '■ Any declaration which contains a plain statement of the facts necessary to constitute a ground of action shall be sufficient.”

The appellant argues, that trespass q. c. /., is a possessory action, and damages for injury to the possession only, can be recovered; injuries to the corpus of the land, however destructive, because it operates on the value of the fee, cannot be compensated in an action for damages by the executors. The injury is one entire thing, if it occurs in the life of the owner of the fee, he, or his executors are the only persons competent to sue for and recover the damages commensurate to the loss sustained.

As far as these prayers attempt to raise the objection, that there was a variance between the declaration and the evidence, they do not present that question generally, but in a very qualified form.

The fifth prayer affirms that the executors of John A. Smith cannot recover on the pleadings and evidence in this cause, for any injury done to the lands in controversy, which would only affect their value as coal lands after the death of the testator.

The eighth re-affirms the same proposition in different language, — <c the said executors of John A. Smith are not entitled to recover on the pleadings and evidence in this cause, for any damages to the coal now remaining in the lands in controversy, which would affect the right and interest of said Sally Smith, as devisee,” etc.

The predominant idea presented in these prayers, is, if the injury was such as impaired the value of the fee, the executors could not recover. We have anticipated and answered this objection, but assuming the objection was intended in its broadest and widest sense—

This is not libe the case where the point was raised below, by objecting to the admissibility of the evidence, as in Ellicott & Lamborne, 2 Md., 132, where the declaration charged that earth, sand, etc., were washed into the plaintiff's mill-dam, so as to render it useless in working his mill, and the evidence offered was that the stream was rendered so impure, that it was unfit for washing rags, so as to fit them for making white paper. There the variance was broadly presented in limine, and the attention of the Court necessarily called to the allegata and probata — but in the present instance, the objection is not to the right to recover because of variance, but because of its supposed effect upon certain interests of persons not parties to the cause. The real objection, if intended to be made, was masqued under a form of words, which entirely concealed it.

(Decided 10th July, 1873.)

These prayers point to the pleadings and raise an objection which was untenable, and being correctly rejected on that ground, they cannot now be used, for the purpose of presenting points which do not appear from the record to have been raised below.

The appellant’s ninth and tenth prayers, included in his fifth exception, are covered by our remarks on the preceding.

Eo specific objections have been made in argument, to the granting of the appellees’ first and second prayers, besides those embraced in the argumento!'the appellant’s fourth, fifth and eighth prayers. The reasons which sustain the action of the Court below, in rejecting the latter, apply with equal force in maintaining the propriety of granting the former.

Finding no error in the several rulings of the Court below, by which the appellants were prejudiced, the same will be affirmed.

Judgment affirmed.

Robinson, J., dissented as to the measure of damages.