American Sand And Gravel Company v. Spencer
| Decision Date | 12 December 1913 |
| Docket Number | 8,066 |
| Parties | AMERICAN SAND AND GRAVEL COMPANY v. SPENCER |
| Court | Indiana Appellate Court |
Rehearing denied February 20, 1914.
From Lake Circuit Court; Willis C. McMahan, Judge.
Action by Eva Spencer against the American Sand and Gravel Company and another. From a judgment against it, the American Sand and Gravel Company appeals.
Affirmed.
Edwin C. Crawford, for appellant.
Harris Bretsch & Ressler, Frank B. Pattee and Louis B. Ewbank, for appellee.
It appears from the record that from June 1, to August 8, 1908 William Tipton was the owner of fifty acres of land, described in the complaint, situate near the city of Gary, in Lake County, Indiana. At the last named date, William Tipton died intestate, leaving as his only heirs at law, his widow Melissa Tipton and his daughter, the appellee, Eva Spencer. Melissa Tipton died intestate September 21, 1908, leaving appellee as her only heir at law, who thereupon became sole owner of the lands, and so continued to the time of the trial. The land contained extensive deposits of sand. Originally three suits were filed in the court below against appellant and The Garden City Sand and Gravel Company, one by the administrator of the estate of William Tipton, one by the administrator of the estate of Melissa Tipton, and one by appellee, to recover for sand alleged to have been wrongfully taken by the defendants, within the respective periods when William Tipton owned the land, and when Melissa Tipton and appellee owned it in common, and when appellee was sole owner thereof respectively. It being conceded that appellee was the beneficial owner of each of the claims sued on, the three actions were consolidated by agreement of the parties, and appellee filed a new complaint in the consolidated cause, on which complaint, the trial was had. By agreement, it was stipulated of record that if any judgment should be rendered in the consolidated action against defendants, it should be in solido in favor of appellee.
The material averments of the complaint are in substance as follows: That defendants are engaged in the business of buying and selling sand and gravel; that appellee between certain specified dates owned a fifty acre tract of land, described in the complaint; that at divers times between said times "the exact times being unknown to this plaintiff, said defendants wrongfully broke and entered said land of the plaintiff and wrongfully took and carried away large quantities of sand and gravel from said real estate of this plaintiff, amounting to 1,000 or more cars, of the value of $ 20,000; that said acts of trespass were committed without the consent of the plaintiff, and without authority by law; that defendants well knew at the time of so entering upon plaintiff's real estate that they were upon the same without authority; that they had endeavored to purchase said land, but failed, but notwithstanding all this, they unlawfully, intentionally and wilfully entered said premises and took and carried away as above averred the sand and gravel of this plaintiff, to her damage as averred." Defendants filed an answer in general denial. Trial by the court, without a jury. Finding and judgment for costs in favor of the defendant, The Garden City Sand and Gravel Company, and in favor of appellee, against appellant in the sum of $ 3,698.15, from which appellant prosecutes this appeal. The sole error assigned is the overruling of the motion for a new trial, which motion presents the single question of whether the damages assessed are excessive.
Under the averments of the complaint, appellee seeks to recover as damages only the value of the sand and gravel taken and removed, as measured by the rules of law applicable to such a case as is made by the complaint. There is no averment of any consequent injury to the land, as such, and appellee does not seek to recover for any such injury.
In cases where one person unlawfully enters upon the land of another person, and mines and removes therefrom coal, stone, sand or other minerals, or cuts and removes therefrom growing timber, and converts such material or substance to his own use, the circumstances may be such as that the person who so enters the lands of another may thereby become either an innocent, inadvertent trespasser, or a wilful trespasser. If such a person enters his neighbor's land unlawfully, but inadvertently or unintentionally, or in the honest, reasonable belief that he is exercising his own right, and in such a spirit displaces and removes therefrom any of said substances or any like substance, he is classed as an innocent trespasser; but where he enters such land, not only unlawfully, but also recklessly or wilfully, or with an actual intent to do so, and in such spirit displaces and removes any substance aforesaid, he is classed as a wilful trespasser. The complaint charges defendants with a wilful trespass. Sunnyside Coal, etc., Co. v. Reitz (1896), 14 Ind.App. 478, 497, 39 N.E. 541, 43 N.E. 46; Resurrection Gold Min. Co. v. Fortune Gold Min. Co. (1904), 129 F. 668, 679, 64 C. C. A. 180; 27 Cyc. 639.
In ascertaining the correct measure of damages in this case, the trial court presumably first determined whether appellant was a wilful trespasser. The amount of the judgment indicates that the court found against appellant on that proposition. That there was a trespass is not controverted. The contest wages around the question of its nature. It became necessary for the trial court to ascertain the facts of the trespass, and from such facts to determine whether it was innocent or wilful. Such question is so related to the rules by which the damages are measured that we are required to review the trial court's action in this respect in order that we may determine whether there was any error in assessing the amount of damages. In so reviewing the trial court's action, only the evidence that tends to sustain the finding of the trial court can be considered by this court. There was evidence to the following effect: during the period in which appellant was removing the sand, William and Melissa Tipton, until they died as aforesaid, and appellee throughout the period, lived at Kenosha, Wisconsin. There was evidence that they did not know that appellant was mining and removing the sand. Appellee first learned the fact about July 1, 1909, and at once notified appellant to cease operations and to remove its equipment from the land. Appellant admitted receiving such notice, and while it did not promptly vacate the land, claims that thereafter it took no more of the sand. Appellant negotiated with William Tipton in his lifetime for the right to take sand, and with appellee thereafter, but the parties arrived at no agreement to that end. There was evidence that appellant, through its officers and agents knew of the death of William Tipton soon after that event occurred. While William Tipton was living, but comparatively a small amount of sand was taken, and this without any agreement that it might be taken. No sand was taken in the three months following the death of William Tipton. Thereafter, and up to July 1, 1909, appellant took 740 car loads, 579 of which were taken before there were any negotiations with the heirs of William Tipton, and 161 after negotiations had been opened and failed. Appellant admits that up to July 1, 1909, it took 809 car loads, amounting to 31,717 cubic yards. There was some evidence that appellant took 626 cubic yards after July 1, 1909, but this was denied by appellant. Appellant knew at all times that it was taking the sand from the Tipton land, and intended to take it from the land, but through its officers claimed that it believed that it had the right to do so. Appellant was fully informed as to the facts, and is presumed to know the law applicable thereto. The evidence is sufficient to sustain a finding that appellant wilfully took the sand, and that in so doing it was a wilful and intentional trespasser. Sunnyside Coal, etc., Co. v. Reitz, supra; Resurrection Gold Min. Co. v. Fortune Gold Min. Co., supra; Whiting v. Adams (1894), 66 Vt. 679, 30 A. 32, 25 L.R.A. 598, 44 Am. St. 875; 27 Cyc. 639.
We next proceed to determine the rule by which the damages must be assessed. It should be kept in mind that this action, under the allegations of the complaint is in the nature of trespass de bonis asportatis, rather than trespass quare clausum fregit. Any damages to the land as such, caused by the removal of the sand, are waived or ignored, under the allegations of the complaint. Appellee seeks to recover only the value of the sand as such, when measured by the rules of law that must be applied to a case of this kind. The sand in its natural position on the land was a part of the real estate. When mined and removed from the place, it became personal property, and appellee seeks to recover its value as personal property. Our further discussion of this case must be construed with the foregoing.
It is sometimes said that the measure of damage in a case of what we have denominated an innocent trespass--that is, where one wrongfully takes a mineral substance from the lands of another,...
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