135 Ala. 579 | Ala. | 1902
Action of trover by tlie Alabama Company against tlie Ivy Company for tlie mining and conversion by tlie latter company of coal on or out of tlie land of tlie former. Tlie acts of the defendant cutting, or “knocking: down” tlie mineral, and converting it were done in tlie belief that the land, the coal in it, and consequently tlie coal after it was severed belonged to it: Neither the trespass nor the conversion was willful or intentional, but each was at most merely inadvertent; and we may assume further for the purpose of this appeal, without, however, so deciding, that the defendant was guilty of no negligence in the premises, though it is quite difficult to conceive how one person could go upon and appropriate the minerals in a tract of land belonging to another in the mistaken belief that the land is his own without some negligence of inquiry in respect of the true ownership. But there was, as we have said, no willful or intentional wrong, and, as we assume, no negligence on the part of the defendant. Upon the case thus stated and assumed •the sole question for our consideration is ■ as to the measure of the damages the plaintiff is entitled to recover. The plaintiff’s position is that it should be awarded the value of the coal as it lay in the mine after it had been cut, or knocked down, and thereby severed from the realty. The contention of the defendant is that the damages should be measured by the value of the coal in and as, part of the realty, and that the recovery should be for the difference in the value of the land before and after the coal was removed. The former position, that of the plaintiff, is logical and sound. Trover does not lie for damages to land. This action could not be maintained for the deterioration, in the value of plaintiff’s land resulting from coal being taken out of it. Tlie gist of the action is the injury the plaintiff suffered by being deprived of coal which had been sev
The judge of the city court, sitting without a jury, correctly assessed plaintiff’s damages in accordance with the rule laid down in White v. Yawkey, and judgment. was rendered accordingly. It must be affirmed!