24 S.W.2d 607 | Ky. Ct. App. | 1930
Affirming.
The appellant, Mrs. Sallie J. Thompson, has owned for a number of years a coal lease in Muhlenberg county *756
known as the Haden and Bohannan lease, but which, for the sake of convenience, we shall call in this opinion the "Thompson lease." The record shows that for the past ten years or so Mrs. Thompson has sublet this lease to some half a dozen or more mining companies in turn, each of which was unsuccessful and went into bankruptcy. During this period Mrs. Thompson was represented in the management and subleasing of her lease by her husband, the appellant J.M. Thompson, who had complete charge of all of her business in this connection. About all that Mrs. Thompson did with reference to this lease was to sign papers prepared under the direction of her husband. In the years 1922 and 1923, her sublessee was the Jim Thompson Coal Company, which this record indicates was dominated by her husband, J.M. Thompson. The lease owned by Mrs. Thompson lay next to the property of the Dentzell heirs, the present appellees. In operating the Thompson lease, the Jim Thompson Coal Company mined over and into the Dentzell land and removed therefrom over 3,000 tons of coal. A suit for an injunction and for damages was brought by the Dentzells against the Jim Thompson Coal Company and Mrs. Sallie Thompson on account of this removal of the coal from the Dentzell land, and a judgment was rendered in that case for the Dentzells, granting them the injunction sought and awarding them damages for the coal which had been removed. The measure of damages imposed was on the theory that the trespass had been willful and intentional. On an appeal to this court, the judgment was affirmed as to the coal company, but was reversed as to Mrs. Sallie Thompson, because it was not shown that she participated in the trespass in any way or that she had received any royalties from the coal removed from the Dentzell land. Jim Thompson Coal Co. v. Dentzell,
We are confronted in this case with two questions: First, should any judgment have been awarded against the Thompsons? Secondly, if so, to what extent?
While there is some conflict in the evidence, it very satisfactorily discloses that the Puritan Coal Company, under the management and by the direction of J.M. Thompson, mined over and into the Dentzell property. As he participated in and directed the trespass of the Puritan Coal Company, he is as much responsible for the trespass as the coal company. See Blackberry, Ky. W. Va. Coal Coke Co. v. Kentland Coal
Coke Co.,
So far as the coal mined from the Dentzell land by the Puritan Coal Company is concerned, we cannot say that the chancellor erred in his finding, which he necessarily made, to enter the judgment he did, to the effect that the trespass of the Puritan Coal Company was induced by the acts of J.M. Thompson in his handling of this lease for his wife. There was a great deal of evidence to support this holding, and, while there was evidence to the contrary, the finding of the chancellor will, under familiar principles, be upheld, at least where the appellate mind is not convinced that he erred. This being true, the appellant Sallie Thompson is as liable *759 for the trespass of the Puritan Coal Company as she is for that of the Rogers Coal Company.
The second question we have to answer is, To what extent are the appellants liable? This depends on the amount of coal extracted and what measure of damages should be applied. The appellants in their brief express ignorance as to where the court got the figures upon which he entered his judgment. To us, this is quite plain. Of the seventeen rooms turned to the north of the Cavanaugh entry, four are shaded in red on the map in this record known as the Orcutt map, and thirteen are shaded in yellow. Orcutt testified that the coal removed from the rooms shaded in red amounted to 4,600 tons and from the rooms shaded in yellow, 8,993 tons. This totals 13,593 tons. Rogers testified that the total amount of coal removed from the Thompson mine by his company before he discovered they were on the Dentzell property was, excluding coal used for steaming purposes of the Rogers Company, 47,771.67 tons, of which 10 per cent. came from the Dentzell property. After he discovered that the Rogers Coal Company was over on the Dentzell land, it ceased to mine any more coal from that property. According to Rogers, then, his coal company took from the Dentzell property about 4,700 tons. The court, however, only charged his company with 4,600 tons. Deducting this 4,600 tons from the 13,593 tons, we have left 8,993 tons which the Puritan Coal Company extracted. While there is some conflict in the evidence about these figures, the preponderance of it supports the chancellor that they represent at a minimum the coal extracted by the Rogers Coal Company and the Puritan Coal Company under the direction of Thompson. At least we cannot say that the chancellor erred in so finding. We are left, then, the question whether the court erred or not in assessing against the appellants the market value of the coal at the place where it was taken without reduction for cost of mining, being the measure to be applied where the trespass is willful. See J. M. Thompson Coal Company v. Dentzell, supra. There is in this case a great deal of evidence and proof of circumstances which, if believed, established a willful trespass on the part of the appellant J.M. Thompson, for which he and his principal, Mrs. Sallie Thompson, are responsible. Not content with their escape in the J. M. Thompson Coal Co. case, supra, they have acted in this case in such fashion as to convince the mind that they were *760 not innocent in the subsequent trespasses upon the Dentzell property. Their mine maps were either willfully incomplete or willfully incorrect. The Cavanaugh entry turned to the east precisely where it should have turned to the east — that is where it reached the Dentzell boundary line — and yet large rooms were turned over onto the Dentzell land. Thompson's evasive and unsatisfactory manner in testifying destroys any faith to be put in his testimony, and that of Rogers as to the misrepresentations of Thompson goes also to establish the willfulness of Thompson's trespasses. There was, then, ample evidence to sustain the chancellor's finding in this regard.
No error appearing prejudicial to appellants' substantial rights, the judgment is affirmed.