Cole v. Ellwood Power Company
| Citation | 65 A. 678,216 Pa. 283 |
| Decision Date | 07 January 1907 |
| Docket Number | 87 |
| Parties | Cole v. Ellwood Power Company, Appellant |
| Court | Pennsylvania Supreme Court |
Argued October 16, 1906
Appeal, No. 87, Oct. T., 1906, by defendant, from judgment of C.P. Lawrence Co., Dec. T., 1901, No. 14, on verdict for plaintiff in case of Edward Cole v. Ellwood Power Company. Reversed.
Appeal from report of jury of view. Before PORTER, P.J.
At the trial it appeared that plaintiff had a parol lease, reserving royalties, of the bowlders and stone in and on a tract of land in the borough of Ellwood. He claimed that defendant had entered upon and seized the stone thereon.
Plaintiff's counsel proposed to show by the plaintiff and by other witnesses to be called, the damage that was sustained by the plaintiff by reason of the appropriation and taking of the stone on the plaintiff's lease. Also, proposed to show by this and succeeding witnesses to be called, the market price of curbstone at that time, the quantity of curbstone that could be made from the stone on the plaintiff's lease the cost of making the curbstone and putting them on board the cars and the royalty that was to be paid by the plaintiff to the Pittsburg company, and claimed when these facts were shown they had shown the damage which the plaintiff had sustained.
Defendant's counsel object as incompetent, irrelevant and immaterial.
The Court: It seems to the court the principle laid down in 84 Pa. page 333, is the proper rule of damages in this case, and we are unable to see it in any other light than that mentioned, that the measure of damages is the value of the product in the market, less the cost of transportation, quarrying and royalty. The objection is therefore overruled, the offer admitted and an exception sealed for the defendant. [9]
Defendant offered in evidence paper designated as exhibit "A."
Plaintiff's counsel object as not being the best evidence and that there is no evidence whatever that any effort has been made by the defendant to secure the original. Also, it is denied that this is a copy.
[Seal of Pittsburg Company.]
Defendant presented these points:
3. If the verdict of the jury should be in favor of the plaintiff it should be for the actual value of the stone in the ground, and they cannot take into consideration the price at which stone could have been sold after being mined and prepared for the market. Answer: Refused. [5]
4. The jury cannot take into consideration the profit the plaintiff might have made if he had been able to quarry all the stone upon the land and sell the same. Answer: Refused. [6]
5. The measure of damages is the value of the stone upon the land, subject to the payment of the royalty to the landowner. Answer: Refused, this point having been covered in our general charge. [7]
The court charged, inter alia, as follows:
[As we have already said, if you pass the first question in this case favorable to the plaintiff, you then pass to the second question and ascertain the amount of damages, if any, he is entitled to receive. In taking up this question you should proceed to ascertain the damages under rules prescribed by law. It is contended by the defendant that the value of the stone in place -- that is, as they were there situated upon the land -- is the measure of damages. It is our opinion, and we so instruct you, that the measure of damages applicable to this case is the value of the stone in the market less the cost of transportation, quarrying and preparing the stone, the royalty thereon and such other expenses as are necessary in placing the stone upon the market. Or, in other words, you will get the cost of transportation, cost of quarrying and preparing the stone, of royalty and such other costs and expenses necessary and incidental to placing the stone upon the market and the total thus obtained you will subtract from the market value of the stone, and the difference between the total cost and expenses thus obtained and the market value will be the damages.
As to the amount of the various items of cost and expenses you have the testimony of different witnesses and from their testimony you are to ascertain the cost of placing the stone on the market, and from the market value, which you will ascertain from the testimony, take the cost and thus get the damages.]
Verdict and judgment for plaintiff for $3,625. Defendant appealed.
Errors assigned among others were (4, 9) rulings on evidence, quoting the bill of exceptions; (5-8) above instructions, quoting them.
Judgment reversed with a venire.
Walter Lyon, of Lyon, McKee & Mitchell, with him B. A. Winternitz and James J. Igoe, for appellant. -- The case is like Yeakle v. Jacob, 33 Pa. 376, where the court held that an absolute right to cut timber for fencing was an interest in the land and within the statute of frauds and must be in writing, which case is approved and followed in Huff v. McCauley, 53 Pa. 206, where it was held that a contract that one might take coal for his works from the land of another, must be by grant. So also is Bowers v. Bowers, 95 Pa. 477, where it is held that a contract for standing timber to be taken off at the discretion of the purchaser, as to time, is an interest in land within the meaning of the statute of frauds. This case is followed in Miller v. Zufall, 113 Pa. 317, and the same rule is laid down in Pattison's Appeal, 61 Pa. 294; Neumoyer v. Andreas, 57 Pa. 446.
If there are two contemporary writings, the counterparts of each other, one of which is delivered to the opposite party, and the other preserved, as they may both be considered as originals, and they have equal claims to authenticity, the one which is preserved may be received in evidence, without notice to produce the one which was delivered: Philipson v. Chase, 2 Camp. 110; Eisenhart v. Slaymaker, 14 S. & R. 153; Gaskell v. Morris, 7 W. & S. 32; Morrow v. Com., 48 Pa. 305; Otto v. Trump, 115 Pa. 425; Davis v. Ins. Co., 5 Pa.Super. 506.
The case at bar is ruled by R.R. Co. v. Balthaser, 119 Pa. 472, where a witness testified to fixing the value of the land by estimating the quantity of stone under the land and calculating its value: Searle v. R.R. Co., 33 Pa. 57; R.R. Co. v. Patterson, 107 Pa. 461; Reiber v. R.R. Co., 201 Pa. 49; Hamilton v. R.R. Co., 190 Pa. 51; Phila. Ball Club v. Phila., 182 Pa. 362; Phila. Ball Club v. Phila., 192 Pa. 632; Kossler v. R.R. Co., 208 Pa. 50.
J. Norman Martin, for appellee. -- It is not necessary that a lease of a mine or quarry should be in writing: Moore v. Miller, 8 Pa. 272; Huff v. McCauley, 53 Pa. 206; LeFevre v. LeFevre, 4 S. & R. 241; Rerick v. Kern, 14 S. & R. 267; Swartz v. Swartz, 4 Pa. 353.
If, then, the Pittsburg company could not deprive the licensee of the benefit of his expenditure, clearly the appellant had no right which arose above that of the owner of the fee: Robbins v. Farwell, 193 Pa. 37.
A right to use a mine necessarily implies a right to possess it; and a grant of the use and possession, in consideration of something to be rendered is exactly what constitutes the lease of the thing to be possessed: Offerman v. Starr, 2 Pa. 394; Brandt v. McKeever, 18 Pa. 70; Johnstown Iron Co. v. Cambria Iron Co., 32 Pa. 241; Harlan v. Lehigh Coal & Nav. Co., 35 Pa. 287; Clement & Masser v. Youngman, 40 Pa. 341.
Even a license to do something on the licensor's land, when followed by expenditures on the faith of it, is irrevocable, and is to be treated as a binding contract: LeFevre v. LeFevre, 4 S. & R. 241; Rerick v. Kern, 14 S. & R. 267; Swartz v. Swartz, 34 Pa. 353; Ebner v. Stichter, 19 Pa. 19; Huff v. McCauley, 53 Pa. 206; Grove v. Hodges, 55 Pa. 504; Johnston v. Cowan, 59 Pa. 275; Tront v. McDonald, 83 Pa. 144; Kemble Coal & Iron Co. v. Scott, 90 Pa. 332; Woodward v. Tudor, 81 * Pa. 382; Putnam v. Tyler, 117 Pa. 570; Hutchinson v. Kerr, 3 Pennypacker, 122; Eberly v. Lehman, 100 Pa. 542.
The law as to the measure of damages was properly stated by the court: Ege v. Kille, 84 Pa. 333; Lehigh Coal Co. v. Wilkesbarre, etc., R.R. Co., 187 Pa. 145; Morris, etc., Coal Co. v. Delaware, etc., R.R. Co., 190 Pa. 448; Railroad Co. v. Gilson, 8 Watts, 243; R.R. Co. v. Stayman, 2 W.N.C. 103; R.R. Co. v. Balthaser, 126 Pa. 1; Oak Ridge Coal Co. v. Rogers, 108 Pa. 147; Graham v. Railroad Co., 145 Pa. 504; Coleman's App., 62 Pa. 252.
Before MITCHELL, C.J., FELL, BROWN, MESTREZAT, POTTER, ELKIN and STEWART, JJ.
Three questions are raised by this appeal, first, had appellee such an interest in the rocks and bowlders as to entitle him to compensation when appropriated; second, if his right to quarry was limited as to time, had notice to terminate the lease been served before the entry of ap...
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Cole v. Ellwood Power Co.
... 65 A. 678216 Pa. 283 COLE v. ELLWOOD POWER CO. Supreme Court of Pennsylvania. Jan. 7, 1907. 65 A. 679 Appeal from Court of Common Pleas, Lawrence County. Action by Edward Cole against the Ellwood Power Company. Judgment for plaintiff. Defendant appeals. Reversed. At the trial it appeared t......