Franklin Coal Co. v. McMillan

Bartol, C. J., delivered the opinion of the Court. Eor the reasons stated in the opinion of our brother Robinson, we all agree that the instructions given to the jury by the Circuit Court, in regard to the locations made [557] by the plaintiffs and defendant, were correct, and that it was not error to grant the first, fourth, sixth, seventh, eighth and ninth prayers of the plaintiffs, and also that the second and third prayers of the defendant were properly refused. We are also of opinion that the evidence offered by the plaintiffs, contained in the first bill of exceptions, was properly admitted for the purpose therein stated. But upon the question of the measure of damages, a majority of the Court think there was no error in the rulings of the Circuit Court, and that they ought to be affirmed. The evidence in the case proves that the defendant’s agents, while engaged in mining coal upon its own land, lying contiguous to that of the plaintiffs, extended their mining operations beyond the limits of its own land into that of the plaintiffs, and removed therefrom a quantity of coal, and this suit was brought to recover damages for the trespass. The form of action is in case, brought by parties entitled to the reversion in the land upon which the trespass was committed ; but in our judgment, so far as the question arises in the present case, the rule regulating the measure of damages is the same as if the suit were in trespass by parties owning the fee, and entitled to the immediate possession. No valid objection can be made to the granting of the eleventh and twelfth prayers of the plaintiffs, and we do not understand the appellants as complaining of them. They are identical with the instructions affirmed by this Court in The Barton Coal Co. vs. Cox, 39 Md., 1. The objection relied on by the appellant is to the granting of the plaintiffs’ thirteenth, and the refusal of the defendant’s fifth prayer. By the former the jury were instructed that the measure of damages was the value of the coal when first severed from its native bed, without deducting the expense of severing it. The defendant’s fifth prayer asserts the proposi [558] tion, that if the defendant mined out the coal from the plaintiffs’ land, and in so doing believed itself to be the bona fide owner of the land and of the coal so mined, then the measure of damages is the value of the coal in its native bed, before it was severed from the mine. The question presented by these prayers is not a new one in this Court, it was fully considered and decided, we think, in the case of The Barton Coal Co. before cited. There the Court below granted the plaintiffs’ third prayer, identical with the thirteenth prayer in this case, and refused the second prayer of the defendant, which was in these words : “ If the jury shall find, etc., that the defendant dug out and carried away the coal of the plaintiffs, without knowing that it was trespassing upon the property of the plaintiffs, and believing that it was its own coal, then the measure of damages for such digging and carrying away of coal is the value of the coal in the mine.” The ruling of the Circuit Court upon these prayers was affirmed. After the decision was rendered, an application for a re-hearing was made by appellant’s counsel, in which they asked the Court to re-consider its decision upon the question of damages, but the application was refused. In the opinion then filed, the decided cases were examined, and the question carefully considered, and the Court adopted as the true rule that laid down in Martin vs. Porter, Morgan vs. Powell and Wild vs. Holt. We have examined all the cases which have been cited in the argument, and have discovered no sufficient reason for departing from the decision so recently made by this Court; nor have we seen an;f good reason to doubt that the rule then announced is upon the whole a sound and salutary one, which, while it awards no more than a just compensation to the party injured, will, as said by Baron Parke, “ tend to prevent trespasses of this kind.” We think no real distinction can be drawn between this case and that of the Barton Coal Company. [559] (Decided 24th July, 1878.) There this Court held the rule applicable, though the defendant was not a willful trespasser, but “dug the coal without hnowing that it was trespassing upon the property of the plaintiffs, hut believing it was its own coal. ’ ’ It is said that in that case there was no dispute or question about boundaries, and that it was negligence in the defendant to go beyond its own lines. But the trespass was committed under ground, where the lines were not easily ascertained. Trespasses on the land of another, if not willful, always imply some degree of negligence. In this case the defendant’s excuse is, that it claimed to be the owner of the land. But it has been shown by the proof and by the verdict that its claim was not well founded. As said in Maye, et al. vs. Tappan, 23 Cal., 306. “ Where a party has the means of ascertaining the dividing line, he is guilty of negligence in not ascertaining its location.” In this respect, therefore, this case is not to be distinguished from that of the Barton Coal Co. Considering that case as decisive of the present, we have not thought it necessary to make further reference to the authorities, or to discuss the proposition there decided over again. Upon the second bill of exceptions, we are of opinion that the ruling of the Circuit Court therein stated furnishes no ground for reversal, because we think the evidence offered for the purpose of proving that the absent witness was unable to attend, by reason of physical inability, was not sufficient to establish that fact. Finding no error in the ruling of the Circuit Court, the judgment will be affirmed. Judgment affirmed.