Carter v. Cairo, Vincennes and Chicago Railway Co.

Mr. Justice Farmer delivered the opinion of the court: Appellees originally leased the mineral rights in the land from the Consolidated Coal Company for a period of one year from October 1, 1903. By the terms of the lease they were to pay the lessor eleven and one-quarter cents per ton, mine run, for all coal taken out. They also agreed to pay the lessor for the months of September to April, inclusive, $15 per month, and for the months of May to August, inclusive, $7.50 per month, whether the actual coal was mined during those periods or not. The Consolidated Coal Company conveyed the land, without reservation, to L. E. Fisher in January, 1904. The lease was delivered to Fisher, and he endorsed thereon, in writing, an extension of it for a period of five years from the date of its expiration. Fisher conveyed the property to the Danville Consumers’ Coal Company in October, 1904, and thereafter appellees paid to that corporation the rentals and royalties provided by the lease and continued in possession and operation of the mine. The iron pipe appellant agreed to lay to provide drainage for the mine was required to be laid under and extend through a very high embankment built by appellant. The proof shows appellant laid iron pipe from the mouth of the mine extending eastward about sixty feet, and then built the embankment of earth and gravel to the height of twenty or more feet over it and extending several feet east of the east end of the iron pipe. The east end of said pipe was not connected with any other pipe or tile but was covered up and filled by the embankment. The building of the embankment obstructed the entry to the mine, so that to operate the mine appellees were obliged to sink a shaft or open an entry from some other point. A short distance north of the mouth of the entry a ravine cut through the bluff in a northeasterly direction and emptied into the ravine that ran at the foot of the bluff below the mouth of the mine that had been obstructed by the railroad embankment. Appellees decided to make an entry from the north side of the bluff to connect with the entry that had been driven from the east side and take their coal out through that entry. By reason of the fact that the pipe leading from the mouth of the old entry was covered up and filled at its east end by the railroad embankment, water could not escape from the mine but accumulated therein and filled it up. When the old entry was reached from the entry driven from the north side of the bluff, water came into the new entry in such quantities that the appellees could not work the mine and were driven out of it. Thereupon they brought this suit. After the suit was begun appellant made an effort to uncover the east end of the iron pipe and connect it with a tile drain, as it had agreed to do. As to whether it did this or not the evidence was conflicting, but as appellees’ evidence fairly tended to show that the appellant did not make such connection as to afford proper drainage, the judgment of the Appellate Court, so far as this court is concerned, is conclusive of that question. It was not denied by appellant that it failed to lay the pipe entirely through and under its embankment and connect it with a tile drain, as agreed in the contract, but it contended on the trial that one of the appellees agreed with it that it need not do so. This was flatly denied by appellees, and this question also is settled by the judgment of the Appellate Court. The measure of damages adopted by the court in its instructions to the jury was the cost of restoring the mine to its condition before the injuries complained of, provided such cost did not exceed the fair cash market value of the unexpired term of appellees’ leasehold interest, and if the cost of restoration exceeded the value of the unexpired leasehold interest of appellees, then appellees were entitled to recover only the fair cash market value of their leasehold interest. It is conceded by appellant that appellees’ proof showed the cost of restoring the mine to its former condition would exceed the market value of the leasehold interest. Appellant offered no proof upon this question, and counsel for appellees stated on the trial that they sought to recover the value of the leasehold interest, as the cost of restoring the mine would exceed the value of that interest. The appellant contends that if the mine could not be reclaimed and the coal was necessa'rily abandoned or lost, the right of action was in the owner of the fee and no recovery could be had for substantial damages by the lessee. We think this contention unsound. Appellees had a lease under which they had authority to operate the mine until the first day of October, 1909. The proof abundantly shows that this was a valuable right, and it cannot be the law that they could be deprived of it by the unjustifiable acts of a wrongdoer and have no right to call upon said wrongdoer for compensation. Whether the appellees were obliged to mine coal or not, their lease gave them the right to do so, and appellant could not unlawfully destroy this right without incurring any liability to them. Appellees’ lease gave them a fixed tenure, and the proof showed that this had a substantial value. It is unlike a case of a mere licensee or tenant at sufferance. The fact that the landlord might also have a right of action is not conclusive that the tenant has none. I A party having a leasehold interest in premises may have a right of action for such damages as he has sustained, and the owner of the reversionary interest may have a right of action also for damages he may have sustained^ McConnel v. Kibbe, 33 Ill. 175; Cooper v Randall, 59 id. 317; Indianapolis, Bloomington and Western Railway Co. v. McLaughlin, 77 id. 275. We think the rule as to the measure of damages adopted by the trial court was correct. The verdict of $1500 was well within the limits of the testimony as to the value of appellees’ interest. No error was committed by the trial court in the admission, of testimony for the purpose oí determining the value of the leasehold interest of appellees. John M. Carter and John O’Connell were permitted to testify, over objections of appellant, as to the probable cost of restoring the mine and of the fair cash market value of appellees’ interest. It is objected that they did not show themselves qualified to testify to their opinions on these subjects. We think they testified to such experience and knowledge as made them competent witnesses. The weight of their testimony was a question for the jury. It is also claimed that the court erred in admitting in evidence the record of the deed from the Consolidated Coal Company to Fisher without having first laid a proper foundation therefor. We think the admission of the record of said deed in evidence cannot be complained of as prejudicial to the appellant. Under the issues in this case- the title to the land in which appellees had a leasehold interest was only an incidental matter. Fisher recognized ■ the validity of the lease when he owned the land and extended it for a period of five years. The deed from him to the Danville Consumers’ Coal Company was introduced in evidence. The proof showed that the Danville Consumers’ Coal Company, at the time it acquired title from Fisher, had actual knowledge of the lease and its terms, and after acquiring title collected from appellees the rents and royalties provided for in said lease. In that state of the proof the deed from the Consolidated Coal Company to Fisher was not indispensable to appellees’ right of recovery. Furthermore, it is recited in the contract sued on that appellees held a lease of the premises from the Danville Consumers’ Coal Company, and appellant is in no position now to contest appellees’ rights under that lease. The seventh instruction given on behalf of the appellees, after reciting what the material averments of the declaration were, told the jury that if the appellees bad proven said averments by the evidence, and also that appellant failed to construct the drain as required by the contract within a reasonable time and that damages thereby resulted to appellees, a verdict should be returned in their favor. The complaint made of this instruction is, that it ignores the defense made by appellant that it was excused from complying with the contract by direction of one of appellees. While the instruction did not negative the defense of waiver, it was based upon the pleadings and' appellees’ proof and stated their theoiy of the case. It did not state that a waiver of the performance of the contract could not be considered. So far as the instruction went it stated a correct proposition of law. At appellant’s request the court instructed the jury that if John M. Carter, one of appellees, advised the agents of appellant that it was not necessary to put in the pipe and tile as agreed in the contract, then appellees could not complain because this was not done within a reasonable time, and that if, thereafter, appellees notified appellant they desired the drain put in, and appellant did within a reasonable time put the same in in accordance with the requirements of the contract, the verdict should be for appellant. “The instructions of the court as to the law are all to be considered as one charge and the jury are presumed to have considered them in that way. Where one instruction- may omit some needed qualification and appear to be misleading when severed from its connection with the other instructions, it may not be misleading or incorrect when read with the others. If the instructions, taken as a whole, present the law to the jury with substantial correctness it is sufficient.” (Toluca, Marquette and Northern Railway Co. v. Haws, 194 Ill. 92, and authorities there cited.) This is not a case where the omission from an instruction cannot be cured by others, or where, considering all the instructions together, they can be said to be conflicting. Some other objections are made to instructions given for appellees, but we think they are without merit. We And no such prejudicial error in the record as would justify a reversal of the judgment, and it is therefore affiimed. Judgment affirmed.