104 A. 480 | Md. | 1918
The bill in this case was filed by Andrew Monahan and others, the appellees, against the Mount Savage George's Creek Coal Company, and certain of its officers, to enjoin the *656 defendants (1) from trespassing upon the plaintiffs' land and mining and carrying away their coal; (2) from removing supports, etc., necessary to keep open the passages through the defendant company's mines leading to the plaintiffs' coal, and (3) from preventing the plaintiffs, their surveyor and helpers from going into the company's mines and thence into plaintiffs' coal, and the places from which said company had carried it away, and from interfering with the surveyor from measuring and ascertaining how much of plaintiffs' coal had been taken and carried away by said company. There are also prayers to require the defendants to disclose how much of said coal the company had taken, when and to whom sold, to account for that taken, as well as for the damages to the plaintiffs' remaining coal, and for general relief.
The defendants filed an answer in which they denied that they had trespassed upon the plaintiffs' property or removed any coal therefrom, but subsequently they filed an amended answer in which they admitted that the company had sold and marketed coal estimated at 3,250 tons taken from the land of the plaintiffs, admitted that the company had been paid for said coal, and stated that it was ready to compensate the plaintiffs for it. They denied that "the said coal was worked or removed from the plaintiffs' land fraudulently, negligently or wilfully, but say that the said coal was taken purely by accident, without fraud, and without negligence on the part of the said defendants, and also with the utmost good faith, and with the belief on the part of the said defendants that they were taking and removing coal which belonged only to the Mt. Savage George's Creek Coal Company; and these defendants further say that the defendants ought not to be required to pay for the said minerals more than its value in its native state before severance, to the said plaintiffs."
The defendants in open Court waived "any objection to the jurisdiction of the Court in this case as to the determination of the question as to the quantity of coal removed and the value of the coal, all of which will be determined, and the Court can pass upon the issues in this case the same as if it *657 were a trial at law and the same as if the case were tried by the Court, sitting as a jury." The attorneys for the plaintiffs assented to that agreement, and it was made a matter of record.
The lower Court adopted the defendants' evidence in regard to the amount of coal taken out of the land of the appellees by the company, the cost of severing, loading and transporting it to the mouth of the mine, and there seemed to be no controversy as to its market value. The principal questions, therefore, to be determined are whether the Court was right in finding that 4,508 tons of the coal were negligently mined, and, if so, what measure of damages should be allowed. We can not agree with the appellees that as it was a question of fact whether the coal was negligently mined, the decision of the lower Court as to that is conclusive and can not be reviewed. In equity cases findings of the lower Court as to questions of fact are reviewable on appeals, and if the agreement referred to above be construed as changing that rule in some respects, it could not have been intended to have such an effect as that contended for. The agreement suggested some uncertainty as to the mode of procedure, and the plan of offering instructions was adopted — JUDGE HENDERSON remarking that that could be done so as to secure the right of appeal. Some of the prayers clearly presented the question of negligence, and while bills of exception were not filed, the Judge in his opinion rejected all of the prayers offered by the defendants, except the first which does not refer to that subject. The prayers in the record, together with the endorsement on them of the disposition made of them by the Judge, and the statement in the opinion that "all the prayers submitted by the defendant, except the first, are rejected," must under the circumstances be regarded as sufficiently presenting the right to have his finding reviewed.
1. There is no real controversy about the division line between the properties. That could have been ascertained before the defendant company commenced mining in November, 1916, as well as in March, 1917. Mr. Stern, the president *658 of the company, testified that they commenced mining sometime from the 10th to the 15th of November. The Maryland coal and Iron Company formerly operated this mine, and Mr. Stern was treasurer of that company, and Mr. Avery, one of the defendants, was president. Both before and after the defendant company commenced operations Mr. Stern and Mr. Farrell, a director of the defendant company, tried to get a lease of the Monahan coal, but the owners declined to lease it, and warned Messrs. Stern and Farrell not to get over the line. The defendants either knew, or were grossly negligent in not knowing that the workings were at least close to the line, yet, although the line could have been easily and promptly established, it is now said that it was not fixed in the mine until after the injunction was issued. Anthony Monahan testified that on the 5th of November, 1916, Mr. Avery, of the defendant company, told him, "We are up to your line, your property line, and he says, `We can't go no further if we don't get your coal.'" He told him they would not lease the property — that the heirs were opposed to a lease, and "I told him all we wanted him to do was to keep off our line." Francis Monahan testified that he heard that conversation. Mr. Avery denied it, but said that he understood they were from 75 to 100 feet from the line. Mr. Stern said the reason they were anxious to get the Monahan coal was "because it was very close to our property," and in reply to the question, "You knew it was very close to your workings in there?," he said, "Yes, sir." On cross-examination of Mr. Farrell, in reference to the lease, this appears: "Q. The reason was that you were close to their coal, or on their coal? A. I didn't know it. Q. In a general way, isn't that the reason you tried to get this lease? A. The reason we tried to get a lease was because we wanted their coal. Q. Isn't that the reason — because you were up to it? A. Might have been it. Q. It was it? A. Well, yes." Mr. Spear testified that he went with the defendant company about February 1, 1917, — first as mine foreman and then as superintendent — and "just as soon as I got there I said to Mr. Stern *659 that we should make some inquiry about the lines," and Mr. Stern employed Mr. Haverstick as engineer. This also appears in his evidence: "Q. Did Mr. Stern tell you it was all right? A. No, sir; he didn't. He didn't say anything about it. He didn't know. I didn't know anything about it until the surveyors told us. Q. Did Mr. Haverstick ever tell you it was all right? A. As soon as Mr. Haverstick made his survey he told me we would have to stop the left. Q. When was that? A. I couldn't tell just when; I couldn't remember the dates." Mr. Matthias, a mining engineer, testified as to the distances the various headings were run beyond the line before the injunction was served. Two of them were run over the line 325 or more feet, one about 400 feet, one about 186 feet, three 150 or more feet, two about 125 feet, and four varying from 75 to 115 feet — although they were not all run at right angles to the line, as shown by the plat, and hence the end of the headings would not be as far beyond the boundary, in a straight line, in some instances as the above figures might suggest.
The evidence was therefore ample to show negligence of a very decided character. It may be that no one actually knew that the defendant company was working beyond the line, but they at least knew that they were near it, and had been warned not to get over it. Why it would take from early in November until after the injunction was served, in March, to find out where the line was is not satisfactorily explained — especially as it was so soon ascertained after the injunction was served. It ought to have been a very simple matter for an engineer to locate a line such as this, about which there seems to be no real controversy. They knew that sometime before the company commenced operations the former company was within from 75 to 100 feet of the line, and some of the officers of that company were officers of this one, yet several of these headings were run between three and four hundred feet beyond the line. The circumstances were such as to suggest the propriety, not to say necessity, of fixing the line in the mines definitely before any coal was taken out *660 in that direction. Nothing said by Mr. Matthias excused the defendants, unless it be what he told them about the line at the point where the Court below only required the company to pay the royalty of ten cents a ton for coal taken out, but he did not then know definitely where the line was, and the officers and agents of the defendant company had a much better opportunity to know it, as they had access to the mines at all times. The defendants knew he had not connected up the lines with their workings, but after the injunction was gotten out it only took a few days to find out that the defendant had taken out large quantities of the plaintiffs' coal. If the defendants' theory be adopted, all that would be necessary for a trespasser to do would be not to have the lines established until proceedings were taken against him, and then claim he did not know he was over. That will not do in a case such as this, where there was manifestly good reason to fix the line, if the defendant company was anxious to keep within its own boundaries.
2. The next and most important question is the measure of damages to be allowed. The rule in this State was definitely fixed prior to the Acts of 1894 (Ch. 287), which is now Section 92 of Article 75 of the Annotated Code. It may be that the decisions of this Court are not in accord with some of those cited by the appellants from other jurisdictions, but the measure of damages fixed in Barton Coal Co. v. Cox,
JUDGE ROBINSON dissented in the Barton Coal Co. Case, and when the case of the Franklin Coal Co. v. McMillan came before the Court filed a vigorous dissent on the ground that in his opinion the Franklin Coal Company Case was distinguishable from that because the defendant contended that the coal was taken under a claim of title. He relied on the case of Wood v.Morewood, 3 Ad. El. N.S. 440, and others cited by him, and he quoted from it to show that if there was fraud or negligence on the part of the defendant, damages could be given on the principle of Martin v. Porter, but in the absence of fraud or negligence the damages could be confined to the value of the coal in its native bed. We refer to JUDGE ROBINSON'S opinion to show that the question was distinctly raised in the FranklinCoal Company Case, but the majority of the Court refused to follow the view contended for and the rule announced in theBarton Coal Company Case was followed. It will be noted that inWood *662 v. Morewood, BARON PARKE said that if there was fraud ornegligence the jury could give the damages settled in Martin v. Porter.
In the Blaen Avon Coal Company Case, this Court again followed the rule adopted in the Barton Coal Company Case, and repeated in the Franklin Coal Company Case. In addition to the English cases cited, the Court referred to decisions in North Carolina, Maine, California and Illinois which announced the same rule of compensation. JUDGE RITCHIE, who delivered the opinion, called attention to the fact that in the Illinois cases, and inMartin v. Porter, and Morgan v. Powell, "while the amount to be recovered is fixed by the worth of the coal when first dug, the mode of reaching the value is through the price of the coal after it arrived at the pit's mouth, and allowing a deduction for the cost of conveying it thither from the place where it was mined. This is said to be because it could have no value as a salable article without being taken from the pits, and that was the earliest moment at which the plaintiff could have repossessed himself of the coal. But, as LORD DENMAN, in Morgan v.Powell, says, `Instances may be easily supposed where particular circumstances would vary this mode of calculating the damage.'" JUDGE RITCHIE then went on to show that where the coal is actually carried away and sold, "It does not seem material in a case like this, whether the value of the coal at the mine's mouth he first ascertained and then an allowance be made for the bare expense incurred in its simple conveyance thither, or witnesses be asked to estimate directly its value just prior to its removal. The rule of compensation is practically observed in either case." See also what he said on page 420 of 59 Md. It is not difficult to see why this is so. The plaintiff is entitled to recover the value of the coal per ton, after it is severed, without deducting the cost of severing it — that is to say, its value after it has become a chattel, which it has so become by the illegal act of the trespasser. If it be permitted to lie there without removing it *663 and the owner has no way to get it out, or did not know of it in time to take it out before the roof fell in, it might be difficult to establish the value beyond what it had in its native bed. But if, as was done in this case, it was removed by the trespasser, and at the mouth of the mine it had a value which is capable of being easily established, that would seem to be the fair and just way to do so. The trespasser surely has no right to complain of that mode being adopted. But the cases, including that of the Blaen Avon Coal Co. sufficiently show the reason for the rule to avoid the necessity of further discussion of that subject.
3. The three Maryland cases met nearly every question that was liable to be raised, but the further question now is the applicability vel non, of the statute referred to. (Sec. 92 of Art. 75.) We have seen that the rule in Maryland when the statute was passed was that even if the coal was taken under a bonafide claim of title the measure of damages was as announced in the Barton Coal Co. case while there was a line of cases in England and elsewhere that in the absence of fraud ornegligence only the value of the coal in its native bed would be allowed. In the Franklin Coal Co. case CHIEF JUDGE BARTOL said: "Trespasses on the land of another, if not wilful always imply some degree of negligence * * *. As said in Maye et al. v. Tappan,
The quotation from the amended answer in the first part of this opinion would seem to indicate that the defendants then interpreted this statute as we have done. If the fact of its being negligently done does not take it out of this statute, or make it inapplicable, then why would the defendants have denied that the coal was worked or removed from the plaintiffs' land"fraudulently, negligently or wilfully"? Of course, we understand they were denying that it was so taken, but the inference would be that if taken negligently they could not ask for the measure of damages which they claimed to be applicable.
4. The appellants also contend that inasmuch as the case is in equity, a different rule should be applied. There are several answers to that. In the first place the defendants agreed that "the Court can pass upon the issues in this case the same as if it were a trial at law and the same as if the case was tried by the Court sitting as a jury." That would hardly leave room for the contention that there should be a difference between the amount allowed in this case, and what might have been allowed if the case had been before a jury, or the Court, sitting as a jury. But beyond that our own decisions are clear on that point. In theAtlantic, etc., Coal *666 Co. v. Maryland Coal Co.,
The appellants quoted an expression used in the Barton CoalCo. Case, where, after affirming the rule adopted, the Court said: "The cases to the contrary are generally cases in equity, where greater latitude is assumed by the Court in controlling the rights of the parties," but in the case in 62 Md., where a different rule was sought to be established in equity, this Court announced its views in terms which leave no doubt on the subject, as will be seen by the quotation above.
Again, the theory of the appellants for asking the Court to adopt a different rule in this case, being in equity, is that the amount allowed is out of all proportion to the value of the land. That was urged in some of the English cases, and in *667 each of the three principal cases in this State referred to above the amount recovered was far beyond the value of the land affected. But the recovery for the most part was not for the land, but for the value of the coal as a chattel. The amount of recovery in this case is large by reason of the unusual price of coal when it was taken. That could make no real difference, however, as by the rule adopted by the lower Court the appellant company is only held for money belonging to the appellees, which was actually received by it. It is true that the higher the market value, the more there is to be returned, but whether small or large it in justice and equity belongs to the owners of the land from which the coal was taken. Upon what principle then ought the Court to change the rule for the measure of damages at the instance of the appellants? The company sold the appellee's coal, and actually got the money for it. Should a Court of Equity give a favorable hearing to a party who comes before it confessing that it took the plaintiffs' chattels, sold them for their market value (shown to have been $4.90 per ton, and not denied), and collected the money but asks that it be relieved from paying any of it except ten cents a ton, because that is all it was worth in its native bed? Assuming the very liberal allowance made by JUDGE HENDERSON for costs in severing and getting the coal to market (at the mouth of the mine) to be correct, namely $2.41, the appellant has or had in its treasury $2.49 per ton profit, made on the sales of the appellees' coal, and yet asks the Court to require the appellees to accept ten cents a ton in full of all claims for the 4,508 tons and let it keep $2.39 per ton, or $10,774.12 profits made out of the coal which was admittedly unlawfully taken from the appellees by the appellants, although claimed to have been done in good faith. That does not seem to us to be equity, or to give the appellants any standing for relief in a Court of Equity, if any distinction could otherwise be made, because the parties are in a Court of Equity. *668
No contest is made about the 912 tons taken under circumstances which excused the appellants, as held by the lower Court, from paying more than ten cents a ton, amounting to $91.20. The decree also allowed $1,000.00 damages to the remaining land. The rule for the latter is well settled in our decisions and is not affected by the Act of 1894. The only question that could possibly be raised is as to the amount which seems to have been sufficiently proven in this case, and is much less than the appellees claimed. So the only actual loss that the appellant company has sustained is the cost of severance of the 4,508 tons which the lower Court fixed at 63 1/2 cents a ton, and in the aggregate is $2,862.58, and $1,000.00 to the remaining coal and land. Indeed in comparing the net results to the appellant company, if it had kept off the appellees' land, with what it is now held for, it would not be out of place to remember that, although the lower Court only charged it with ten cents a ton for the 912 tons, it actually made a profit of $2.49 per ton on those 912 tons, equal to $2,270.88 — thus leaving it a net profit of $2,178.68 on those tons. If that be deducted from the cost of severance of the 4,508 tons ($2,862.58), which we have said above is the net loss of the appellant company in the whole transaction, it in reality only loses $682.90, in addition to the $1,000.00 damages referred to. While in his application of the rule established by our decisions JUDGE HENDERSON did not charge the appellant company with that profit, it was undoubtedly made out of the appellees' coal. So although the decree is for a large sum of money, in reality nearly four-fifths of the portion of it allowed for coal negligently taken is to be paid with profits made out of appellees' coal, and if the profits made on the 912 tons be taken into consideration, less than 5 per cent. of the amount allowed for coal negligently taken is in addition to the profits actually received by the appellant company. When those facts are considered, the supposed equities in favor of the appellant company seem to a great extent to disappear. *669
We have not thought it necessary to discuss the authorities outside of this State, collected with the usual diligence of the attorneys for the appellants and presented, from their stand-point, with force and ability, because we are of the opinion that the decisions of this Court are conclusive of most of the questions raised, and we cannot adopt the construction of the Act of 1894 contended for. As late as 1909 this Court, inPeters v. Tilghman,
Decree affirmed, the Mount Savage George's Creek Coal Companyto pay the costs. *670