Memphis Stone & Gravel Co. v. Archer

Sykes, P. J., delivered the opinion of the court. This suit-was brought by the appellee as complainant against the appellants as defendants. In her bill the appellee claims to be the owner of an undivided one-third interest in certain mineral lands valuable principally for the gravel thereon. The bill alleges that the defendants are the owners of the other undivided two-thirds interest. It is alleged in the bill that the lands are incapable of a partition in kind, and it is prayed that they be sold and that the defendants be required to account to her for the rents, issues, and profits of the lands during the time they have been in possession. On the first hearing of the cause in the chancery court, it was decreed that the' complainant was the owner of mi undivided one-third interest in the lands and a sale [569] of the lands was ordered. From which decree an appeal was prosecuted to this court and the decree of the lower court affirmed. See opinion of the court in the case of Stone & Gravel Co. v. Archer, 120 Miss. 453, 82 So. 315. Upon the remand of the cause a special master was appointed- by-the court to state an account between the complainant and the defendants. Much testimony was introduced before the master. The chancellor found that the measure of damages was the value of the grave] in situ. He found the value of this gravel to be four cents per cubic yard before it was mined, that one cent per cubic yard was sufficient to pay for the use of the equipment of the defendants, and that three cents per cubic yard was therefore a reasonable value per cubic yard to which the complainant was entitled. It is also found in this decree that the land is incapable of division in kind and it is ordered to be sold. From which decree this appeal is here prosecuted. After the special master had made his report to the court, the defendants made a motion that freeholders bo appointed to partite in kind these lands. This motion was overruled by the court. It is contended in this court by the appellants: First, that the land should be partited in kind; second, that the measure of damages was the value of the land per acre, and not the value of the gravel per cubic yard. The original bill alleged that the lands were not susceptible of division in kind. None of the answers of the defendants denied this fact. The only testimony in the record upon this question is that of one of the defendants who testified that the lands were incapable of division in kind. "We therefore conclude that the chancellor was correct in overruling' the motion to appoint freeholders when there was no issue raised in the pleadings and the only testimony upon the subject showed the lands were incapable of division in kind. The testimony in this- case shows that the price at which gravel in this vicinity is mined is by the cubic [570] yard. The usual way in which it is mined is by contract, which provides for the payment to the mine owner of so much per cubic yard. This is ordinarily called royalty. A great many lands in the. vicinity of that involved in this suit contain deposits of gravel similar to those mined by the defendants on this land. That these gravel lands in this vicinity have a value per cubic yard is proven in the record. This fact is shown by what 'people have contracted to pay per cubic yard for gravel. The fact that it is thus subject to contract as to price shows its market value. The usual ordinary way to ascertain the market value is to show what articles were bought and sold for in the market in .accordance with contract.’ And this is what was shown in this case. The rule laid down in the case of Railroad Co. v. Le Blanc, 74 Miss. 626, 21 So. 748, is as follows: “The weight of authority, both in England and America, is that where coal or other material has been taken from the land of another under an honest claim of title, or where the trespass was from ignorance and was not willful, the damages will be confirmed to the value of the property in situ, and such other damage to the land as the mining may have caused. ’ ’ This rule is variously stated by other courts. In the case of Oil & Gas Co. v. McKinney, 188 Ky. 183, 221 S. W. 245, it is held that—“Where a cotenant of minerals, as petroleum oil, occupies and works them exclusively, he is liable to a cotenant to pay the universal . . . royalties for the right of mining the particular substance in the particular locality, if 1m acted in good faith in so mining’. ’ ’ See, also, Canon Co. v. Yarwood, 91 Am. St. Rep. 877; Cosgriff v. Dewey, 79 Am. St. Rep. 621; Fulmer's Appeal, 128 Pa. 24, 18 A. 493, 15 Am. St. Rep. 662. It is also contended by the appellants that the measure of damages in this, case should be one-third of the profits made by the defendants in the mining of this gravel and that the testimony shows that the mining of this gravel [571] lias not been profitable. Therefore complainant should recover nothing as to this item. The proof of the defendants along this line is very unsatisfactory. It might be, under some circumstances, that a. complainant who had been kept out of possession by his cotenants might have the privilege'of election as to his damages, but he is not confined exclusively to his part of the alleged profits. The rule is well stated in 7 R. C. L., section 23, p. 829, as follows: “And where one has thus ousted his cotenants his liability is not dependent on the receipt of profits by him out of the common property, for, in such a. case, he must answer for the value of the use and occupation regardless of his actual income, and regardless further of whether his wrong has been profitable to himself or not. ’ ’ It is further contended by the appellants that since they own an undivided two-thirds interest in this property and that they have not taken their share of the gravel from the land, they should not be held liable to their cotenant. They have been in the exclusive possession of the entire property and are accountable to their cotenant for her share of the gravel removed. The appellee prosecutes a cross appeal, claiming that the testimony shows the value of the gravel four cents per cubic yard and that the chancellor should not have allowed her only three cents per cubic yard. We think the chancellor, under the testimony, was warranted in placing the value at three cents per cubic yard. The decree is therefore affirmed both on direct and cross appeal, and the cause remanded. Affirmed both on direct and cross appeal, and the cause remanded.