Corona Coal & Iron Co. v. Ferrier

McCLELLAN, J. In all of the three counts of the amended complaint the averment is that the plaintiff (appellee) ivas the owner of the surface of the land described therein; the mineral interest having been previously severed from the surface. The cause of action asserted arose out of damage done the surface in consequence of mining operations carried on by defendant (appellant). As appears, the contest is between the superjacent and the subjacent proprietors.—SlossSheffield Co. v. House, 157 Ala. 663, 47 South. 572; West Pratt Co. v. Dorman, 161 Ala. 389, 49 South. 849, 23 L. R. A. (N. S.) 805, 135 Am. St. Rep. 127, 18 Ann. Cas. 750. Appellant insists that the trial court erred in refus ing the general affirmative charge requested by it, on the ground that a variance resulted from the fact that the undisputed proof showed plaintiff to have had a life estate only in the land in suit at the time the damage complained of was inflicted. To confirm this view it Avould bé necessary to conclude that the averment that plaintiff Avas the oAvner of the damaged surface of the land was an averment that the plaintiff held the fee thereto. The term “owner” has been accorded various [532] significations in various connections or relations.—■ Gravlee v. Williams, 112 Ala. 539, 20 South. 952; L. & N. R. R. Co. v. Murphree, 129 Ala. 432, 29 South. 592; 29 Cyc. pp. 1549, 1550; 6 Words and Phrases, 5134. As employed in the counts under consideration, the term “owner” means that the plaintiff held a freehold interest in the surface of the lands described; and proof that he held a life estate therein conformed to that effect of the averment of ownership. The evidence tended to show that a part of the surface of the land described in the complaint was cracked open for long distances and with varying width, as the result of subsurface operations in the mines. At the instance of the defendant (appellant) the court gave the following special instruction to the jury: “(B) The legal test by which the jury are to be guided in determining the amount of damages that plaintiff is entitled to recover is the difference in the market value of plaintiff’s life estate in said lands before the same was cracked and the market value of plaintiff’s life interest in said lands after the same was cracked.” The following charge was refused to defendant: “If the jury believe that the lands described in the complaint Avere damaged to a certain amount, then the amount of such damages that plaintiff would he entitled to recover, should be limited to such part of such damages as plaintiff’s life estate bears in value to the entire interest in such lands.” We think the last-quoted charge Avas sufficiently covered, in its substance, by the given charge B. The purpose of the charge refused Avas to restrict the amount of plaintiff’s recovery to his interest in the land. Charge B affected to state that idea in a different form. But, if the refused charge Avas taken as proposing to the. jury a different measure of damages from that ex [533] pressed in its given charge B, the defendant can take nothing by the refusal thereof.—L. & N. R. R. Co. v. Holland, 173 Ala. 675, 697, 55 South. 1001. A party litigant cannot assert error of a refused charge which is opposed to a charge or charges already given to the jury at his instance. No prejudicial error appearing, the judgment must be affirmed. Affirmed. Anderson, C. J., and Sayre and de Graffenried, JJ., concur.