13 Nev. 157 | Nev. | 1878
By the Court,
The record in this case discloses the following material facts: On or about the second day of October, 1871, plaintiff was the owner, and in possession of a certain mining claim in Gold Hill mining district, in this state, known and called the Bowers claim, and was in possession, and entitled to the possession, as lessee thereof, of a certain mine known and called the Trench mine. On the day stated, plaintiff leased a portion of each of said mines to one Armstrong, for the period of twenty months; that is to say, from October 1, 1871, until June 1, 1878. By the terms of the lease Armstrong had the right, at his own cost and expense, to enter upon and take possession of both of said mines, from and including the surface, to and including the five hundred-foot level of each, and extract therefrom all metalliferous ores he might desire to take, and convert the same to his own use. Armstrong agreed to pay plaintiff for each and every ton of ore extracted and taken which would mill fourteen dollars per ton, the sum of one dollar and fifty cents; and for each and every ton so extracted and taken which would mill fourteen dollars and upward to sixteen dollars, the sum of two dollars; and for each and every ton so extracted and taken which would mill over sixteen dollars per ton, the sum of two dollars and fifty cents. Armstrong also agreed to take all ore from the mines which would mill twelve dollars per ton, and to work the ore taken within sixty-five per cent, of the assay value. By the terms of the lease no rights were reserved by plaintiff, the lessor, other than the privilege of having access to the mines at all times, for the purpose of inspecting the same, and the right to declare the lease forfeited at his option, in case of failure to make payment for the ores excavated and taken away. It does not appear that plaintiff declared a forfeiture of the lease, nor is it denied that the lease was in full force until the end of the term. Armstrong agreed to' work the mines in a good, workmanlike
Defendant admitted in his answer, and at the trial, that he entered upon a portion of each of the mining claims leased to Armstrong, subsequent to the date of the lease, and that he mined and converted to his own use a certain number of tons of metalliferous ores containing gold and silver; but he denied that he did it willfully or intentionally, and alleged that his entry upon the said mining claims was the result of inadvertence and mistake, under the bona fide belief that he was mining within the boundaries of his own adjoining mines. The verdict of the jury was in favor of defendant’s alleged bona jides. On the ninth day of April, 1873, Armstrong, for a valuable consideration, sold and assigned to plaintiff both leasehold interests before mentioned, and on the twenty-third day of June, 1874, for a valuable consideration, sold and assigned to plaintiff all claims and demands of every nature and kind which he had against defendant described in the complaint herein.
The main question presented for our consideration is as to the proper measure of damages in a case of this kind. In the court below defendant contended that the recovery, should be limited to, and measured by, the value of the ore in place, as it lay in the mines before his entry; that plaintiff should recover only the gross proceeds of the ores extracted and worked by defendant, less the necessary cost of mining, assorting, hoisting, transporting and milling, and that plaintiff was not entitled to recover the amount agreed by Armstrong to be paid to plaintiff as royalty.. The court held, and so instructed the jury, that if defendant by mistake, and not -willfully, wrongfully extracted ores from the mines being worked by Armstrong, plaintiff should recover, their gross yield; less the necessary expense of. assorting, transporting, hoisting, hauling and milling, and all other
Defendant requested the court to instruct the jury to include in his expense the amount per ton which Armstrong, by his agreement, was obliged to pay plaintiff for the privilege of extracting the ores, but this instruction was refused. It is urged by counsel for defendant that the court erred in charging -the jury to exclude from his necessary expenses, to be deducted from the gross yield of the ores, the necessary cost of mining, and the amount per ton agreed to be paid by Armstrong to plaintiff.
Plaintiff claims to recover under and by virtue of the assignments from Armstrong, and it is admitted by counsel on both sides that he can recover, in this action, the same amount that could have been recovered by Armstrong, had no assignments been made, and no greater sum.
Counsel for defendant claims that this is an action of trespass for damages done to real estate; while counsel for plaintiff seem to treat it as trover or trespass de bonis, at least they urge the adoption of the same rule of damages as they assert is the true rule in those cases.
It is alleged in the complaint: “That in the month of November, 1871, one W. H. Armstrong was in the lawful possession of, and until about the ninth day of April, 1873, continued in the lawful possession, by virtue of a certain leasehold interest therein, of all that portion from the surface down to and including the 500-foot level or adit of that certain mining claim, quartz vein or lode sitúa,ted in Gold Trill mining district, * * * known and called the ‘Bower’s claim,’and described as follows: * * * and said Armstrong was entitled, by said leasehold interest in his own right, to all the gold and silver-bearing ores and earth therein, from the surface to said 500-foot level or adit; that plaintiff was, at all the dates hereinbefore and hereinafter mentioned, the owner of the mining claim, quartz vein, or lode above described; that while said Armstrong was so in the possession and entitled to the possession, by virtue of his said leasehold interest in the same, to wit, on or about the thirteenth day of May, 1872, said defendant
Plaintiff then, in- substantially the same language, states another cause of action against defendant by reason of his alleged willful, wrongful, and unlawful entry upon the said Trench mine, and extracting and carrying away therefrom four hundred and eighty tons of metalliferous ores, containing gold and silver of the value of twelve thousand dollars.
It is then alleged, as applicable to both causes of action, “That said Bowers claim, * * * and the said Trench mine were, at the times aforesaid, and are only valuable for and on account of the metalliferous ores bearing gold and silver, which were imbedded therein.” * * * * *
As we regard the cause, it is a matter of no practical consequence which theory is technically correct as to the form of the pleadings. The result, in any event, must be in accordance with the facts alleged and proven. The action is brought to recover damages for certain unlawful acts performed by -defendant. It is brought upon the whole case, and all the- facts constituting plaintiff’s cause of action, as to each mine; are stated in one count. It is said in Jones v. Steamship Cortes, 17 Cal. 487, that “ every action under our practice may be properly termed an action on the case.” Our statute provides that “the complaint shall contain, a statement of the facts constituting the cause of action in ordinary and concise language. If a recovery of
The facts stated in the, complaint are sufficient to support a judgment for the damage sustained, whether that be the value of the ores in place, or after they were separated from the mines.
It is said by counsel for defendant that the court erred in refusing to charge the jury to include in his expenses to be deducted from the gross yield of the ores, the amount per ton that Armstrong was obliged, by the terms of the lease, to pay plaintiff as royalty. In this connection it is especially important to keep in mind the fact that plaintiff’s rights are just the same as Armstrong’s would have been had the latter brought this action. By the terms of the lease,'for twenty months, Armstrong had the same right to work the mines mentioned as had plaintiff before the execution of the lease. He could excavate, carry away, and mill all the ores contained in the portion .of the mines described in the lease. - The right of possession was in him exclusively. He could have maintained an action against all persons disturbing his possession or trespassing upon the premises, including plaintiff himself. He could have used force necessary to resist defendant’s entry or his removal of the ores, or he could have invoked and received the aid of the law for > his protection. Plaintiff could not have maintained trespass for an injury done to the land,
Armstrong had tbe right to give defendant permission to mine and carry away tbe ores. So, if defendant wrongfully entered and worked tbe mines without bis permission, bis right was to allow him to do so and take bis chances of recovery in an action for damages, instead of working them himself, or instead of making forcible resistance to bis entry or resorting to legal process for tbe protection of bis property. It is true that under tbe lease Armstrong bad tbe privilege of taking out as many tons as be pleased and no greater number; but his right to tbe whole was just as absolute and inviolable as it would have been bad be positively agreed to mine all tbe ores in tbe mines. During tbe life of tbe lease, an unlawful entry was a disturbance of tbe rights and possession of Armstrong alone, and every pound of ore taken belonged to him and not to bis lessor. Had tbe taking of ores been prohibited by tbe terms of tbe lease, they would have become tbe property of plaintiff as soon as they were detached from tbe mines; but tbe right of mining and appropriating tbe ores having passed to Armstrong, tbe right, as well as tbe remedy for its infringement, remained in him until tbe assignment to plaintiff. (Taylor’s Landlord and Tenant (5 ed.), secs. 173-4-5-6-7-8; Washburn on Real Prop. Vol. 1, marg. p. 314; Attersol v. Stevens, 1 Taunton, 200; Schermerhorn v. Buell, 4 Denio, 425.) But while tbe lease gave Armstrong tbe rights stated, be could not avail himself of them, either by taking out tbe ores himself, or by receiving satisfaction therefor from defendant, without fixing bis own liability to plaintiff according to tbe terms of tbe lease. Such being tbe case, it is not necessary to decide whether Armstrong would or would not have been liable to plaintiff in an action for waste on account of tbe ores taken by defendant. (Attersol v. Stevens, supra; Cook v. Champlain T. Co., 1 Denio, 104: Taylor’s Landlord and Tenant, secs. 178, 343 et seq., 689; Smith’s Landlord and Tenant, 268; Austin v. H. R. Co., 25 N. Y. 340.) If Armstrong bad sold bis right to tbe defendant to work these mines, and bad received tbe contract
The next and more important question to be considered is: Did the court err in instructing the jury not to include in defendant’s expenses to be deducted from the gross yield, the necessary cost of mining of the ores ?
We are of the opinion that in all actions sounding in tort, no fraud or culpable negligence appearing, the aim of the law is to award to the injured party full compensation for his actual losses, as the law defines those words, and nothing beyond that amount.
In Buckley v. Buckley, 12 Nev. 423, which was an action
In Ward v. C. R. W. Co. et al., subsequently decided, which was an action to recover the value of wood alleged to have been converted by defendants at Empire city, in this state, we held that the conversion was in Alpine county, California, where the wood was less valuable than at Empire city, and that plaintiff was entitled to recover the value of the wood at the former place, with interest, but not the enhanced value caused by the labor and expenditure of defendants; that such measure of damages fully compensated plaintiff’s actual loss, and no greater sum should be awarded.
In both of those cases the value of the property was enhanced after the conversion, while in this case, the expenditure not allowed defendant by the court, and by which the value of the ores was increased, was incurred before they became personal property, and .consequently before conversion was possible. But we can. perceive no reason why the distinction between the facts of those cases and this can justify the adoption of a principle in the former that should not be adhered to in the latter.
It is said by counsel, for plaintiff that no less stringent rule of damages should be adopted in trespass than, in trover, and that in the latter action, the rule adopted by this court in Boylan v. Huguet, 8 Nev. 345, is the value of the property at the time of the conversion, with interest. That such is the general rule, there can be no doubt; and that it should be so is equally plain, because in most cases such an award makes full compensation for the injury com
The reason why the general rule stated was adopted, is because, in most cases, it approaches nearer making full compensation than any other; but we do not understand that this court has ever held that it is unvarying in its. application, if in any case a departure from it will better accomplish the object of the law. . It is well known that to the general rule there are many acknowledged exceptions. In Pierce v. Benjamin, 14 Pick. 361, the court says: “The general rule of damages in actions of trover is unquestionably the value of the property taken at the time of its conversion. But there are exceptions and qualifications of this rule as plain and well established as the rule itself. Wherever the property is returned, and received by the plaintiff, the rule does not apply. And .when the property, itself has been sold, and the proceeds applied to the payment of the plaintiff’s debt, or otherwise to his use, the reason of the rule ceases, and justice forbids its application. In all such cases, the facts may be shown in mitigation of damages.” And in Baldwin v. Porter, 12 Conn. 484, it is said: “Both the rule and exceptions proceed upon the principle that the plaintiff ought to recover as much, and no more, damages than he has actually sustained, which commonly is the'value of the property.;..a.nd hence the general rule. No good reason, consistently with moral principle, can be suggested why greater damages - should' ever be recovered than have in truth been sustained,. except in those cases where the law permits by way of primitive justice, the recovery of vindictive damages.” (See, also, Curtis v. Ward, 20 Conn. 206.) We agree fully with the principle announced by that court, and shall endeavor .to apply it to this case.
Although entertaining the greatest respect for, the courts that have held otherwise, we are unable to say in this case, where the verdict of the jury prohibits the imposition of
It often happens in- deserted mining towns that buildings become useless except to be taken down and removed to some other locality. In such cases they might easily be more valuable when taken down than they were when standing. Suppose, under such circumstances, in the honest belief that a certain building belongs to him, A. should take down the house of B. and appropriate the lumber, to his own use; that it was worth one thousand dollars before it was taken down, and the lumber one thousand two hundred and fifty dollars afterwards. Suppose again that C., in the same belief that another house adjoining, and of the same value, belongs to him, burns and destroys it. It turns out that the house claimed and burned by C., also belonged to B.; B. brings an action against each, alleging in the first case an unlawful entry, the tearing down and carrying away, etc.; and in the other an unlawful entry, the unlawful burning and destruction. In the latter case it is certain
In Harvey v. S. S. M. Co., 1 Nev. 543, appellant claimed error, because the court below refused-to instruct the jury to give him what it would cost to remove from his lot dirt and rocks piled thereon by defendant. This court sustained the lower court, and stated in substance, that in some cases appellant might recover the amount it would cost to restore the property to the. condition it was in before the wrong committed; but in cases where such cost would exceed in value of the property, the last amount only could be given in damages. In other words, plaintiff was not entitled to receive an amount greater than the value of the property destroyed by the trespasses of the defendant. So, in this case, if it were possible to replace the ores in the mines, as they were before defendant’s entry, it is difficult to perceive how plaintiff could recover an amount greater than their value in place, if the cost of replacing them would exceed such value, or how he can now recover more than such value, although, from the character of the property, they cannot be put in their former position. If defendant had innocently flooded one of the mines in question and worked the other, so that Armstrong could not take ore from either, should not the same rule of damages govern each case? Three men own adjoining claims- in a marble bed; A. and B., by mistake, work over the lines upon the property of C.; each takes out and appropriates to his own use the same number- of perches of the same value in the bed; A. takes his in small blocks, and consequently expends less than B., who at great cost gets out large, valuable -blocks, to be -used in public buildings. The actual damage done to the marble
Our attention is called to the following cases by counsel for respondent: Kier v. Peterson, 41 Pa. St. 357, an action of trover for. fifty thousand gallons of petroleum, which was the unexpected product of certain salt wells which had been sunk by defendant on land leased tó him by plaintiff for the purpose of manufacturing salt. The court held that the petroleum belonged to the defendant, and hence did not consider the question of value, in relation to which there was no contest. Woodward, J., concurred in the judgment on the sole ground that plaintiff had misconceived his action, and alone remarked that he,thought the judge below
“Lord Abinger, C. B. I am of opinion that there ought to be no rule in this case. If the plaintiff had demanded the coals from the defendant, no lien could have been set up in respect of the expense of getting them. How, then, can he now claim to deduct it ? He cannot set up his own wrongs. The plaintiff had a right to treat these coals as a chattel to which he was entitled. He did so, and the only question then was their value. That the jury have found. It may seem a hardship that the plaintiff should make this extra profit of the coal, but still the rule of law must prevail.” Barons Parke, Alderson and Maulé agreed upon the grounds stated by the chief baron. It will be seen that this decision, like all that follow it, was based upon a principle not accepted by this court, viz.: “That if the owner cannot obtain his property in specie, he is entitled in all cases to the increased value.
Morgan v. Powell, 3 Adol. & E., N. S. 281, from the printed, report, appears to have been similar to Martin v. Porter, although it is stated in Cushing v. Longfellow, 26 Me. 310, to have been an action of trespass de bonis asportatis. However, the court followed the rule adopted in the former case; Lord D.enman C. J., and Patterson, Williams and Coleridge, JJ., sitting in banc. The case was first heard before Coleridge, J., at the Monmouthshire-assizes in 1811, at Avhich inquiry., he stated that he felt bound by.
In “ Bainbridge on the Law of Mines and Minerals,” marg. p. 514, the author says, in substance,' that in actions of trespass for working beyond the boundaries of mining claims, the measure of damages is the full value of the minerals as soon as they are separated from the freehold; and, as authority for the rule, he refers to Hilton v. Woods, Law Rep. Eq. Cas., vol 4, p. 432; Maye v. Tappan, 23 Cal. 306; Goller v. Fett, 30 Cal. 481; Coleman’s Appeal, 62 Pa. St. 278; Bennett v. Thompson, 13 Ired. (Law) 146; Lykens & Co. v. Dock, 62 Pa. St. 232. An examination of the cases cited will show that Maye v. Tappan and Bennett v. Thompson are the only ones that in any manner sustain the rules stated by the author. But on p. 448 he says that, in equity, if there is no fraud or culpable negligence, compensation will be confined to actual profits accruing, or which might have been fairly acquired from the trespass; that the market price of the minerals at the mouth of the mine will be taken, and all just allowances be made for the costs of working. So it seems that the courts of equity in England, being untrammeled by forms, give as the actual damages in such cases the gross proceeds, less the necessary expenses of working, including the cost of mining. (Wild v. Holt, 9 M. and W. 671, follows Martin v. Porter.)
The above are • all the English authorities to which we have been referred bearing upon this question in favor of respondent’s position, and all that we have been able to find. The American cases cited by counsel for respondent are: Cushing v. Longfellow, 26 Me. 310, which was an action of trespass cle bonis asportatis.-- The court held that the value
Our particular attention is still called by counsel for respondent to the case of The Barton Coal Co. v. Cox, 39 Md. 3, decided in 1873. The facts of that case were similar to
The declaration in that case, however, was somewhat different from the complaint in this. It contained three counts. The first charged that the defendant broke and entered the lotus in quo, and mined and carried away large quantities of coal; the second and third set put the trespasses with greater minuteness, and charged that defendants then and there took and carried away and converted the coal to their own use. The court says: “The declaration contained three counts, which, so far as the distinctive forms of action can be recognized in our present system of pleading, may be designated as' trespass qucire clausum fregit et de bonis asportatis combined.” So, it is evident that the pleadings in that case allowed the adoption of such a rule of damages as the court deemed proper in an action of trespass de bonis, while there is not such a count in the complaint in this case. Although we cannot .know what the decision would have been had the declaration there been like the complaint here, we shall assume that it would have been the same if the second and third counts had been omitted, or if the second and third had been combined with the first. In the first place, the court holds (p. 22), that in an action of trover, where there is no fraud or culpable negligence, the plaintiff may recover the enhanced value of the material either at the place of taking or manufacture, a conclusion that finds no concurring opinion in this court. Had the court been of different mind upon that important question, it is improbable at least that it would have arrived at a similar decision upon the question under consideration. After stating that there is a diversity of opinion between the English and American cases, and that the latter eases are not uniform, the court cites Forsyth v. Wells, 41 Pa. St. 291; Herdic v. Young, 55 Id. 176; United States v. Magoon, 3 McLean, 171; Goller v. Fett, 30 Cal. 482; Coleman's Appeal, 62 Pa. St. 278; Stockbridge Iron Co. v. Cone Iron Works, 102 Mass. 84; all of which are strongly against the decision made. The court then says: “In the absence of any adjudications in this
The court then cites Martin v. Porter, Morgan v. Powell, and Wild v. Holt, and decides the case according to the rule adopted by the English cases cited. No reasons are given for preferring the rule followed in the English cases rather than in the American; but the decision seems to have been based solely upon the ground that the rule adopted had been declared to be the correct one by some of the English courts. As an authority, the case adds to the English decisions the approval of the Maryland court, which we highly respect, although unable to follow its example. Robertson v. Jones, 71 Ill. 405, was similar to this case. The appellate court held that the measure of damages for coal taken by defendant upon plaintiff’s land was its value as a chattel when first severed from the mine. The foundation of this decision was also laid in a rule which, in Ward v. Simpson, we said “was not supported by sound reason or sustained by the weight of decided cases, and hence should not be followed.” That court recognized as correct the rule that in trover and replevin the plaintiff may, in the absence of fraud, etc., recover in damages the appreciated value of the property taken, because he may recover the property in specie if a return can be had, and then adds: “The moment it, the coal, was severed from the freehold, a right of action then existed in favor of appellant. If he could maintain replevin, and recover the coal severed from the land, and upon this there can be no doubt, upon the same principle, in an action of trespass, he has the right to recover the value of the coal after it was dug in the bank.”
In the McLean County Coal Company v. John Long, 81 Ill. 359, an action of trover for the conversion of coals taken from the land of plaintiff, the controversy was as to the proper measures of damages. The court followed Robertson v. Jones, supra, holding that the rule was the same in
Hilton v. Woods, vol. 4 Law Rep. Eq. Cas. 438, was decided by the vice-chancellor in 1867. He preferred the rule of Wood v. Morewood, to that of Martin v. Porter, and folloAved the former.
Although from the printed reports it appears that the tAvo cases last mentioned were similar; yet, on the other hand, it seems improbable that Baron Parke, in the latter, Avould have disregarded the rule established by the former, in Avhich he participated, if in that case there was no fraud or culpable negligence.
Barnsley Canal Navigation Company v. Twibill, vol. 3, English Railway Cases, 356, is of interest in this connection. Under the canal act, a canal company purchased the land over which the canal passed, but the coal mines and coal Avere reserved to the OAvners, who Avere to be at liberty to Avork the mines so as not to injure the canal. A., the OAvner of the land over which the canal passed, sold it to the company, and afterwards leased the coal up to the side of the canal on one side, and up to the toAving-path on the other, to B. A. subsequently contracted with the com
Stockbridge Iron Company v. Cone Iron Company, 102 Mass. 86, was an action of tort praying for relief for injury to plaintiff’s land by digging a shaft on adjoining land occupied by defendants, and thence digging into and under plaintiff’s land and taking therefrom large quantities of iron and other ores. Plaintiff also prayed for an injunction. The court held that it was entitled to recover ‘ ‘ the value of the ore, to be estimated as it lay in the bed, and not as it was after the defendants had increased its value by removing it.”
In United States v. Magoon, 3 McLean, 171, the court instructed the jury “ that the value of the ore after its separation from the mine was not the measure of damages, but the injury done to the soil; that the digging and carrying away by the same person is presumed to be a continuous act, and the lead ore removed must be considered in aggravation of the trespass upon the soil.”
Mr. Sedgwick, in discussing this question (p. 273), says: “The principle to be extracted from these cases is, that in trespass, if the defendant has in good faith increased the value of the property, the plaintiff shall not have the benefit of his labor; and this appears to be the rule in this country.” (See Weymouth v. C. & N. W. R. Co., 17 Wis. 551; Single v. Schneider, 24 Id. 300; Id., 30 Id. 570; Winchester v. Craig, 33 Mich. 207; Folsom v. Apple River Log-driving Co., 41 Wis. 608.
Forsyth v. Wells, 41 Pa. St., was an action of trover for coal mined upon and carried away from the land by mistake. Plaintiff claimed, as in this case, that because the action was allowed for the coal as personal property, by necessary logical sequence, she was entitled to the value as
The court then states that in an action of trespass it prefers the rule adopted in Wood v. Morewood to that of Martin v. Porter, for the reason that the former gives just compensation for actual damage, while the latter does not, and adds: ‘ ‘ Where there is no wrongful purpose or wrongful negligence in the defendant, compensation for the real injury done is the purpose of all remedies, and so long as we bear this in mind Ave shall have but little difficulty in managing the forms of actions so as to secure a fair result. If the defendant in this case was guilty of no intentional Avrong, he ought not to have been charged Avith the value of the coal after he had been at the expense of mining it, but only Avith its value in place and Avith such other damage to the land as his mining may have caused. Such would manifestly be the measure in trespass for mesne profits.” (7 Casey, 456.)
A careful examination of the authorities has convinced us that there is a growing inclination among all courts, where it can be done, to apply the only safe and just rule in actions for damages, whether ex contractu or ex delicto, and that is, to give the injured party as near compensation as the imperfections of human tribunals will permit. This is the aim, the ideal, of the law, and it is the duty of courts to come as near it as possible in practice; and although courts differ as to the method of ascertaining the actual loss,
We are satisfied that the weight of authorities sustains the views of counsel for appellant upon this important question, and that they are sanctioned by every sense of reason and justice. The court erred in refusing to allow defendant to prove the necessary cost of mining the ore in question, and for this error the judgment is reversed.