Henry v. LoweHenry v. Lowe
- Reporters:
- Before:
- Hough
The petition in this case contained two counts, and although there was a general verdict for the plaintiff‘, it will be unnecessary for us to dex . termine whether these counts stated several and distinct cаuses of action, or only one cause of action in different forms, inаsmuch as no objection was made to the verdict in the court below, аnd such objection cannot be made for the first time in this court. Bigelow v. N. M. R. R. Co., 48 Mo. 510; Owens v. Hanni*99bal & St. Joseph R. R. Co., 58 Mo. 386, 394. Besides, it aрpears from the record that the second count was virtually disregarded by the parties at the trial.
The first count was based on the 1st section of the act in relatioxx to trespass, and chai’ged the defendant with willfully digging and cаrrying away certain coal from the land of the plaintiff, without having probable cause to believe that said land was his own ; and prayed for .judgment fоr treble the value of such coal. The jury were instrxxoted to assess the damages, if they found for the plaintiff, at the mai’ket value of the coal dug аnd canned away by the defendant. They x’eturned a verdict for $23.75, which sum was, on motion, tx’ebled by the court, and judgment erxtered accordingly. It is contended by the defendant that the court ex’red in trebling the damages, 1st, Because cоal is not included in the 1st section of the statute allowing treble damages; 2nd, Because the jury did not find the value of the coal taken ; 3rd, Because thе defendant had probable cause to believe the land from which thе coal was taken, was his own.
The statute gives treble damages against аny person who “ shall dig up, quan’y or carry away any stones, ore or minerаl, gravel, clay or mould, l-oots, fruits or plants,” in which he has no interest or right, and being on land not his own. R. S., § 3921. The statute does not undertake to enumerate the vai’ious ores or minerals, for the disturbance or removal of which it allows damages, but it embraces all minerals. Coal is a well known mineral of great vаlue, which has been mined in this State from an early period, and it’would appear strange indeed if the law should punish the removal of stone, gx’avel or clay with treble damages, and allow only single damages for the wrongful removal of coal. This objection is untenable.
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*99Nor is the second objection well taken. The jury were instructed to-return a vei’dict in damages for the mar*100ket value of the coal, if they found for the plaintiff, and we are to рresume that they did so ; and the court very properly treated the verdiсt as determining the value of the coal taken.
As to the last objectiоn, we need only say, that the burden was on the defendant to show that he had probable cause to believe the land to be his own. Walther v. Warner, 26 Mo. 143. This was a question of fact to be tried by the court, and as there is ample testimony to supрort the finding, we are not at liberty to set it aside.
The defendant filed a motiоn to tax all costs to plaintiff which accrued after February 12th, 1877, alleging thаt he on that day deposited with the clerk for use 0f the plaintiff’ the SUBI of $50 for damages, and $5.65 for costs then accrued. This motion was overruled by the court on the ground that the plaintiff had recovered “a larger sum for his damagеs.” The defendant also filed a motion to tax the costs to the plaintiff which accrued after October 9th, 1877, for the reason that he had on that dаy offered in writing to let the judgment be entered against him for $50, and the verdict was fоr less than that sum. This motion was likewise overruled by the court. The defendant contends that in determination of these motions the court should have been governed by the amount of the verdict, and not by the amount for which judgment was rendered. “We are of opinion that the amount recovered should control, otherwise the statute giving treble damages might always be evaded. The judgment will be affirmed.
The other judges concur.