50 Mich. 522 | Mich. | 1883
This case was before this Court on demurrer to the declaration, and the decision is reported in 47 Mich. •65. The action is trover for the valúe of certain iron ore. The facts in brief are that in the last three months of 1877 and the first three months of 1878 the Marquette & Pacific Rolling Mill Oo. being then in possession of and operating a certain iron mine, took therefrom between one thousand and two thousand tons of iron ore and sold the same to the defendant. But on the first day of October, 1877, the mine had been sold on execution against the Rolling Mill Company and bid in by one Parks, who sold and assigned the
After this decision upon the demurrer, which was in affirmance of the ruling of the circuit court, the record was remanded, and the plaintiff had leave to amend. The amended declaration avers that after sale was made on the execution “the said Marquette & Pacific Rolling Mill Company continued to mine ore from said mine and sell and dispose of the same up to the time of the execution of the sheriff’s deed of said property to plaintiff,” and “ during the time aforesaid mined and removed from said mine large quantities of iron ore, to-wit forty thousand tons, of which one thousand eight hundred and thirty-four tons were in the months of October, November and December, 1877, and January, February and March, 1878, taken to the furnace of the defendant,” and “ by the said defendant wrongfully converted to its own use.” “And the plaintiff further alleges that the said real estate was permanently injured by the
Issue was taken on the amended declaration and a trial had, at the conclusion of which the trial judge directed a verdict for the defendant. The plaintiff again brings the case here by writ of error.
A very slight examination of the amended declaration will disclose the fact that the case made by it is no better than that made by the original, and is subject to substantially the same criticisms. The plaintiff alleges that the operations,of the judgment debtor in the removal from the mine of forty thousand tons of ore constituted an injury to the freehold. But these operations extended over a period of fifteen months, and it is not alleged that any of the ore mined during the last nine months ever came to the hands of the defendant. "What the defendant received was the comparatively small quantity that was mined during the first six months; and it is quite consistent with all that is alleged that the removal of this small quantity was no injury whatever. If the mine was rendered less valuable by its removal it is .remarkable that the plaintiff failed to allege it. "We cannot assume that because the mining which was carried on so largely in the summer was detrimental, the light operations of the preceding winter were also an injury to the freehold. Indeed the facts appearing in the bill of exceptions are directly to the contrary; for they show that the winter mining was useful in beeping the mine in condition for profitable operation for the rest of the year, and if suspended considerable injury must have resulted. It is not unreasonable to assume that we have in this fact the explanation of the failure to allege that the mining of the ore which was sold to defendant was injurious.
But even with that allegation the case would have been
On the hearing upon this writ of error the argument made before was renewed, and it was again contended that the taking of ore from the mines after sale was made on the execution, was necessarily waste. Being satisfied with the former decision we do not review it now. To the authorities then referred to we add Griffin v. Fellows 81½ Penn. St.
The judgment must be affirmed with costs.