42 W. Va. 30 | W. Va. | 1896
This is a writ of error by defendant, John, toa judgment rendered in an action of trespass on the case against him by the Circuit Court of Monongalia county on the 20th day of J une, 1894, in favor of plaintiff, Mapel, on his demurrer to the evidence for the penalty of five hundred dollars prescribed by the following statute: “No owner or tenant of any land containing coal shall open or sink, or dig, excavate or tvork in any coal mine or shaft, on such land, within five feet of the line dividing said land from that of another person or persons, without the consent, in writing, of every person interested in, or having title, to such adjoining lands in possession, reversion, or remainder, or of the guardians of any such persons as may be infants. If any person shall violate this section, he shall forfeit five hundred dollars to any person injured thereby who may sue for the same.” Code 1891, p. 668, c. 79, s. 7.
The defendant, by counsel, assigns the following errors: “(1) The overruling the demurrer to the original and amended declaration. (2) In refusing to require the plaintiff to elect whether he would proceed for common law or statutory damages. (3) In refusing to set aside the verdict and grant a new trial. (4) In refusing to arrest said judgment because the declaration contained no count under the statute for the forfeiture. (5) In entering a judgment for plaintiff on said demurrer to evidence.”
As the declaration demurred to is based upon a statute of great practical interest in this state, therefore it may answer a useful purpose to give the last count in full, which is as follow's: “And for that the plaintiff heretofore, to wit, on the 1st day of January, 1892, at the county aforesaid, was possessed and the owner in fee simple of a certain other tract of land in Cass district, in said county, containing -acres, more or less, and under and upon which there was and is a large and valuable vein of bituminous coal; and the said defendant during all the time aforesaid was and still is possessed and the owner in fee simple of a certain tract of land in said county and district, and adjoining the said tract of the said plaintiff, and under and upon which said last mentioned tract the said vein of coal con-
The declaration contained three counts. The first one may be said to be a common-law count in trespass on the case for the damages sustained, case being used instead of trespass, as authorized by statute (section 8, chapter 103). The second count is like the third count given above, with the additional averment that the opening was extended across the dividing line. By the statute sued on the penalty of five hundred dollars is given to the party injured. No part of it goes to the state, so that the action would not be in the name of the state. See Code, c. 36. The first act was passed on the 3rd day of March, 1834. The action of debt was prescribed. Acts 1833-34, p. 82. No specific mode of recovery is provided by the statute sued on, and therefore an action of debt lies, being the usual remedy. West v. Rawson, 40 W. Va. 48 (21 S. E. 1019); Sims v. Alderson, 8 Leigh, 479; .1 Chit. Pl. (16th Am. Ed.) top page 125, and cases cited. But in such case, where the statute gives a right of action without prescribing the form, the action is to be adapted to the nature of the case, and modeled according to the distinctions of the common-law. It may be an action of debt, assumpsit, trespass, or case, as the particular nature of the wrong or injury may require. Bullard v. Bell, 1 Mason, 243, 290 (Fed. Cas. No. 2,121); Com. Dig.; 3 Rob. Prac. 383.
The court did not err in refusing to require plaintiff to elect between the two counts, for the reason already given. Such election could not be made, as the court instructed the jury to disregard the first count, aud to find conditionally the penalty fixed by the statute. In this case, therefore, there was no occasion for the jury to find any verdict at all. All that was needed was for the evidence on each side to be set forth in the demurrer, as it is required to be certified under section 9 of chapter 131; and the court, in deciding the demurrer, would give judgment for defendant or for plaintiff, and, if for the latter, it would be for the penalty of five hundred dollars fixed by the statute. Generally, where the damages are to be assessed, the jury is not discharged, but find a verdict subject to the decision of the court on the demurrer. Either party, plaintiff or defendant, has a right to demur to the evidence, and the other party will be required to join therein, unless the case be plainly against the demurrant, and his object in demurring clearly seems to be nothing else but delay. If the court, in considering the demurrer, is of the opinion that plaintiff' has cause of action, but that the damages are excessive, the verdict maybe set aside, aud a writ of inquiry be awarded ; and so in every case, where the court, if it followed the hypothetical verdict, must render what the evidence contained in the demurrer shows to be an unjust judgment, it may set the verdict aside, and call another jury to ascertain the quantum of recovery (see 4 Minor, Inst. pt. 1. pp. 831, 832, and cases cited) ; or it may, for good cause, set aside the conditional verdict, and award a new trial. I think the
It so happened in this action for the recovery of the one definite penalty prescribed by the statute in the given case that there was no room for the verdict of a jury. Such verdict was wholly useless. But, as they followed the statute, it could do no harm; therefore there was nothing for the court to set aside, and there could be no substantial error to the prejudice of either party in refusing to set it aside; yet the court, on proper showing, might have awarded a trial de noco.
The question whether the plaintiff had sustained any injury in the sense in which the term “injury” is used in the statute could not, in the nature of things, have been submitted to or found by the jury. It was a matter of evidence, with which, in this particular case, they had nothing to do. Moreover, the term “injury,” as used in the statute, is used to indicate that the person whose right has thus been violated is the proper one to sue for the penalty ; not that the amount of damages is to be ascertained by thejury, for the statute itself fixes the sum forfeited at five hundred dollars, and means in this ease the violation of his right by reason of the violation of the statute. But it is argued by defendant’s counsel that the act is an infringement of the right of private properly, transcending the legislature’s constitutional power. If the defendant has the right to use his own land and coal mine for all the purposes to which such property is usually applied when, where, and how he may see
This brings us to the evidence. Joshua M. Boss sold and conveyed to J esse Everly, by deed dated 16th February, 1860, the land now owned by plaintiff, Mapel. In it he makes this reservation: “The said Boss excepts the privilege of coal for his part of the farm at the bank now in use.” What Boss did not then sell, w'hich he calls “his part of the farm,” is the land now owned by defendant, John. As to the nature and extent of defendant’s right to miue coal on plaintiff’s land, it is enough for our present purpose to say that the privilege to mine coal at the bank then in use was an easement annexed to defendant’s land, the dominant tenement, to mine coal at that open mine on plaintiff’s land the servient tenement, which was only a privilege to take coal at a particular place for a particular purpose; that the dominant tenement does not adjoin the
The judgment for plaintiff on his demurrer to evidence was right, and is affirmed.