Blaen Avon Coal Co. v. McCulloh , 59 Md. 403 ( 1883 )

Ritchie, J.,

delivered the opinion of the Court.

The judgment in this case was against the Blaen Avon Coal Company and Archibald Stewart, its mining boss, for entering the appellee’s close, and mining and taking away several thousand tons of coal, and for so conducting their operations as to greatly impair the value of the residue of his coal bed.

In the course of proving his record title to the land, the plaintiff offered in evidence the will of Baker Johnson, deceased, the original grantee of the State, which contained the following clause:

“It is my will and desire, and I do hereby direct, that my executors shall sell and convey in such manner and on such terms as they shall think beneficial, all the lands to which I am in any manner entitled, lying and being in Allegany County, in the State of Maryland.”

The defendants objected to the admissibility of the will, “because the same was not located upon the plats;” and the overruling of this objection is the ground of their first exception.

We do not think the objection well taken. As the testator had directed all his lands in Allegany County to be sold, any part thereof, less than the whole, was necessarily comprehended in the direction. Nor can we perceive how the power to sell could he laid down, or represented in a “location,” which is descriptive of natural objects. There was in evidence a survey and location of that parcel of the lands of Baker Johnson in Allegany County, derived from the State and held by him at his death, which included the locus of the trespass ; and the only reference to these lands in the will, being in the clause just quoted, there was nothing in that instrument that could aid or affect their actual description. The decision in Langley’s Lessee vs. Jones, 26 Md., 462, upon an analogous question, sustains the ruling on this point. It was there held that when the grant and the deed are the same, location of both is unnecessary; and that where the whole of a tract is located on the plats, a deed conveying the whole may he given in evidence though not itself located.

The second exception of defendants also relates to the will, and mainly rests on the objection there-was no sufficient legal evidence that letters testamentary were ever granted to the executors. We do not consider this tenable. While the Begister of Frederick County, where Johnson died, testifies that no entry of the issuing of such letters appears upon the minutes of the Orphans’ Court, he also testifies that it was not the custom of the Court at that time, in the year 1811, nor indeed until 1859, to make any record or take any proceedings in the granting of letters testamentary other than the formal declaration of appointment, made in the letters themselves, committed to the executor. That the letters in question were issued, abundantly appears from the probate of the will, wherein were named as executors the persons who acted as such; the. filing and approval of their bond, and the exhibition to and passage by the Court of their executors’ accounts, in one of which is the specific allowance of the fee paid by them to the Register for issuing the letters testamentary.

Whilst the present practice of the Court, followed since 1859, of recording the issue of letters in their minutes of proceedings, is to he approved, we see no sufficient reason because of the absence of such a practice, when the will of Baker Johnson was admitted to probate, to impeach the action of his executors. The facts in their case are not similar to those of the case of Carlysle vs. Carlysle, 10 Md., 440, cited by appellants. In that case, the order of the Orphans’ Court, relied on by the guardian to protect him for an unfortunate investment of his ward’s funds, was simply a verbal one, with no. record evidence whatever to support it.

But further consideration of this exception, which with the preceding one, are those only which go to the right of .plaintiff to claim through Baker Johnson, is rendered immaterial by the uncontroverted proof, apart from that relating to plaintiff’s paper title, which shows that he and those under whom he holds were in full and peaceable possession of the land as the claimants thereof for more than thirty years prior to the institution of his suit. This was a sufficient possession, the defendants setting up no claim whatever to the land, and trespass q. c. f. being a possessory action, to enable the jalaintiff to sue. Norwood vs. Shipley, 1 H. & J. 295 ; Look vs. Norton, 55 Maine, 103.

The remaining and material questions raised by the defendants in their exceptions upon the testimony and to the instructions of the Court on the prayers are, first, as to the liability of Archibald Stewart, and, secondly, as to the rule of damages.

The fact and extent of the trespass itself are established beyond dispute, and are assumed in the rulings sought by the defendants.

The mining complained of was actually done by the miners of the company, and by extending their headings or cuts across the line of the company’s property into the adjacent coal land of the appellee. These miners were under the control and direction of Stewart, as the manager or mine-boss of the company at its mine; and it was in obedience to his instructions the mining was done, whilst he was not personally present in every one of the rooms during the general progress of the trespass. All the coal of the appellee excavated was loaded into the company’s mine cars, carried to the surface over their tramways, transported with their own coal to market, and the proceeds of its sale received and retained by the company.

While the President of the corporation testifies that he was ignorant of the commission of the trespass when done, and that Stewart had been generally cautioned to keep within the lands of the company, and Stewart claims that he was misled through relying on a plat of their coal vein, furnished him by the company, made by a skilful engineer, because the outcrop, from an unknown and peculiar formation in that locality, was incorrectly laid down on the map, and not within the company’s lines as supposed ; there was evidence adduced tending to show gross negligence on the part of the company, and of Stewart especially, in not adopting reasonable precautions to test the engineer’s map, which could have been readily done by a surveyor measuring in from the mouth of the mine, or by sounding with a sledge, as Stewart was. urged to do after he had been informed that the appellee alleged the digging was on his land. And it was further shown that the trespass, notwithstanding this warning, was continued until appellee began to sink a shaft to verify his claim, and thereupon the miners, who were working just below, were by Stewart’s orders recalled to exactly within the company’s boundaries.

It is well settled that a trespasser, though misled by a Iona fide mistake as to his title, or who has taken every precaution to keep within his own lines, cannot escape liability for the injury done, being hound in law to know the limits of his possessions. Eb such extenuating circumstances can he fairly set up by the defendants; and the jury might reasonably, from the proof; have imputed gross and not merely constructive negligence to the defendants under the circumstances of this trespass.

As to the question raised upon the uniting of Stewart, with the Goal Company, his principal or master, as co-defendants, and recovering a joint judgment against them,, we perceive no legal difficulty in such joinder.

The law is established that in the case of an agent or servant committing a tort while acting within the scope of his employment, he and his employer may he sued separately or jointly, at the election of the party injured. Nor is it material to the latter’s right to sue, in what proportions, if any, they share the benefits of the wrongful act. And if the agent exceed his authority, a subsequent ratification or adoption of his act by his principal, is equivalent, to a precedent command.

In the present case the coal taken from the appellee under the orders and supervision of Stewart, was appropriated by the Company; and under circumstances in which the law would plainly affect it with knowledge of how it was procured.

There are cases, it is true, in which the intermediate-manager or head employé has been held not liable for trespasses of workmen under, him, and in which recourse could he had only to the actual wrong-doer, or to the master, on the principle of respondeat superior; hut they are distinguishable from those where, as in this case, the tort-is in consequence of the command or neglect of the general superintendent. This distinction is recognized in a leading authority relied on by appellants; Stone vs. Cartwright, 6 Term R. 411. These general principles of liability as between master and servant, and principal and agent apply as well to corporations as to private individuals.

Erom what we have said it is evident we find no error in the rulings of the Court below upon the point of the relative and joint liability of Stewart 'and the Company. Reference may be made to the following authorities upon the principles adverted to : Berry vs. Fletcher, 1 Dillon, 71; 1 Chitty Pl., 173; Reeve’s Dom. Rel., 356 (s. p.); 2 Add. on T., (Dudley and Baylies’ Ed.,) 1121, 1122, 1123 ; Waterman on Tres., 28, 48, 69; Thompson on Liab. Ag. & Serv. of Corp., 489 ; 6 Waite’s A. & D. chap. CXXVII, Art. 3.

The remaining question to be considered is the measure of damages applicable in this case.

The general rule in actions of trespass for mining and carrying away coal, as laid down by this Court in the case of The Barton Coal Company vs. Cox, 39 Md., 1, and re-announced in Franklin Coal Co. vs. McMillan, 49 Md., 549 is that, the plaintiff is entitled, independently of circumstances of aggravation, to recover the value of the coal immediately upon its conversion into a chattel by severance from the freehold, without abatement of the cost of severance. In the former case the prayer of the plaintiff on this point, which was excepted to below and sustained on the appeal, applied the substance of the rule in these words : “ Such sum per ton as the jury may find the said coal so mined was worth when first severed from its native bed, and before it was put upon the mine cars, without deducting the expense of severing said coal from its native bed.”

The rule was adopted by the Court of Appeals after a full consideration of the leading English cases on this subject. Martin vs. Porter, 5 Meeson & Welsby, 351; Morgan vs. Powell, 3 Adol. & El., N. S., 281; Wood vs. Morewood, 3 Adol. & El., 440, and Wild vs. Holt, 9 Mees. & Wels., 672.

Among the cases that may be cited in which other Courts of this country have reviewed these English authorities, and applied the same rule of compensation, are Bennett vs. Thompson, 13 Iredell, 146; Moodey vs. Whitney, 38 Me., 174; Maye vs. Tappan, 23 Cal., 306; and McLean Co. Coal Co. vs. Long, 81 Ill., 359, followed in McLean Co. Coal Co. vs. Lennox, 91 Ill., 561, (1879.) The first two relate to trespass in cutting down timber trees, and state the measure of damages to be the value of the timber when it is first cut down and becomes a chattel. The last three cases grew out of trespasses in mining, and announce the same principle. In the Illinois cases, however, as in the cases of Martin vs. Porter and Morgan vs. Powell, while the amount to be recovered is fixed by the worth of the coal when first dug, the mode of reaching this value is through the price of the coal after it arrived at the pit’s mouth, and allowing a deduction for the cost of conveying it thither from the place where it was mined. This is said to be because it could have no value as a saleable article without being taken from the pits, and that was the earliest moment at which the plaintiff could have re-possessed himself of the coal. But, as Lord Denman, in Morgan vs. Povjell, says, “Instances may easily be supposed where particular circumstances would vary this mode of calculating the damage.”

As the fact to be arrived at, is the worth of the coal just after its severance and before the removal is begun, it does not vary the rule of compensation whether its value at that time is ascertained by what it would sell for when brought to the surface, and then deducting the mere cost of bringing it there, or by estimating its worth before it was removed, where, as in the present case, it has he,en actually taken from the pit and sold.

In the case that may be supposed, of coal being dug on land that has no opening of its own, and not removed, it would have but little if any value greater than when in its native bed, to the owner who had no means of removing it himself; and his recovery would, practically at least, be estimated by what damage was done to his coal-bed by such digging. But in the present case, the particular coal in question having been actually carried away and sold, the computation of its value when just separated and prior to removal, would be an easy process.

It does not seem material in a case like this, whether the value of the coal at the mine’s mouth he first ascertained and then an allowance be made for the hare expense incurred in its simple conveyance thither, or witnesses be asked to estimate directly its value just prior to its removal. The rule of compensation is practically observed in either case. The former method is not deemed inconsistent with the rule in the Illinois cases, as the Court in the first named, whilst stating, “plaintiff could recover as damages, the value of the coal at the mouth of the shaft, less the cost of conveying from the place where it was dug,” expressly adds: “This is in effect saying he can recover the value of the coal when it first became a chattel, by being severed from the mass and under their (defendants’) control.”

Objection was made below to the method adopted by the plaintiff, in his question to the witness Aspinwall, of proving the value added by severance to the native coal, by showing the cost of digging it, and of the propping indispensable to enable the miners to proceed with the severance. We deem it unnecessary, however, to pass upon the appellants’ third exception in which this question is presented; because the record does not disclose what answer, if any, was made by this witness, and accordingly it does not appear that the appellants were injured by his testimony; and for the further reason that the rule of damages was correctly laid down by the Court to the jury for their guidance, in the plaintiff’s fourth prayer.

The offer of defendants contained in their seventh exception, was properly excluded. It was an effort to show that the cost to plaintiff of opening and equipping a mine on his own land, considering the small number of acres in his. tract, would he so great as to render his coal valueless. This was prescribing a certain and expensive mode as the only one through which the plaintiff could derive any profit or advantage from his ownership. By such a standard coal in its native bed could have no value unless its owner were first to expend a sufficient sum in sinking shafts and providing tramways, cars, &c., to move it. If this were a proper test, the owners of tracts large enough to justify such extensive operations might, with impunity, appropriate coal as good in quality and natural situation as their own from adjacent proprietors, whose parcels did not happen to be equal in extent to their own. Besides, in this case, such a mode of valuation was irrelevant, the fact being, that the coal mined had been actually taken off and sold, and the real inquiry was what the identical coal so taken was worth before it was loaded into the company’s mine cars.

The ruling below in defendants’ eighth exception, refusing to permit the question: “ In removing the plaintiff’s coal from the place of severance to the mouth of defendant’s mine, what would be a fair allowance for the use of the defendant company’s tramway, mining galleries and cars ? ” was clearly correct. To allow such proof would have been in direct conflict with the law as laid down in the Barton Coal Company case, where an allowance for the equipments and facilities, as such, of the trespassing company was denied. The question is quite a different one from what deduction would have been reasonable and fair for the actual expense of loading and hauling the coal from where it was dug to the surface, had testimony been offered to show its saleable value at that point.

The grounds of objection to defendants’ foregoing offer, are equally applicable to all their other exceptions, covering their efforts to introduce, as bearing upon the value of the severed coal, an estimate of the established equipments, and facilities of the Blaen Avon Company, which were erected for its own operations.

The prayers of the plaintiff upon the measure of damages as to the injury done to his coal property, exclusive of the coal carried away, in impairing the worth of and making more difficult to mine the coal that was left, through destructive and wasteful modes of excavation, we find to he clearly sustained by the decisions in 39 Md. and 49 Md., already referred to; and, accordingly, they were properly granted by the Circuit Court.

[After appeal taken in the foregoing case, the plaintiff helow, Robert C. AfcCulloh, died, and the appearance of his administrators, was entered. Rep.] (Decided 16th February, 1883.)

From the expression already given of our views upon the principles underlying this case, it is unnecessary to examine the exceptions of the appellants in further detail; as they are all substantially disposed of. It is sufficient, therefore, in conclusion, to say, that after full consideration of the rulings of the Court below, notwithstanding the ingenuity with which the views of the defence were presented and maintained, we find no error in them, and the judgment must he affirmed.

Judgment affirmed.