Galloway Coal Co. v. Bessemer Coal, Iron & Land Co.

SOMERVILLE, J. “In an action of trover for the mining and conversion of coal on and out of the land of another, where it is shown that neither the trespass nor the conversion was willful or intentional, the measure of damages is the value of the coal as it lay in the mine when and after it had been severed from the realty, with no deduction for the value of defendant’s labor in effecting the severance, and not the value of the coal in and as a part of the realty.” Ivy Coal & Coke Co. v. Ala. Coal & Coke Co., 135 Ala. 579, 33 South. 547, 93 Am. St. Rep. 46. For all practical .purposes, it is clear that the value of coal lying on the floor of the mine after severance is its value on board the cars, after being raised and carried and dumped therein, for transportation to the market or to a consumer, less the cost of so raising, transporting, and dumping. McGuire v. Boyd Coal & Coke Co., 236 Ill. 69, 86 N. E. 174; Omaha & Grant, etc., Co. v. Tabor, 13 Colo. 41, 21 Pac. 925, 5 L. R. A. 236, 16 Am. St. Rep. 185; Blaen Avon Coal Co. v. McCulloch, 59 Md. 403, 43 Am. Rep. 560; Bender v. Brooks, 103 Tex. 329, 127 S. W. 168, Ann. Cas. 1913A, note, 559, note, 562. In the instant case the evidence as to the value of the coal on the floor of the mine consisted of the testimony of H. L. Badham, for the plaintiff, that it was worth “about $2 a ton,” and the testimony of three *538 witnesses for defendant that it was worth from 45 to 60 cents a ton. All of this was opinion • evidence, of course, and not conclusive upon the court in its finding as to value. If this direct testimony as to value were the only basis for the court’s decision, we might perhaps feel justified in holding that the finding complained of was contrary to the great weight of the evidence, arid that the judgment was therefore erroneous, and subject to reversal. But the undisputed evidence showed that the price of coal at this mine at that time, f. o. b. the cars, was more than $3 per ton, and that the cost of removal from the floor of the mine to the cars was not in excess of 20 cents per ton. Under this phase of the evidence, we think that the trial court was justified in disregarding the opinions of defendant’s witnesses, and finding a value of §2 per ton; at least, wo are not so convinced of the error of the finding as to justify us in setting it aside. The judgment will therefore be affirmed. Affirmed. ANDERSON, C. J., and THOMAS and BOULDIN, JJ„ concur.