Dunbar Furnace Co. v. Fairchild

• Decision Date: 01 October 1888
• Docket Number: 50
• Citation: 121 Pa. 563,15 A. 656
• Parties: DUNBAR FURNACE CO. v. FAIRCHILD ET AL
• Court: Pennsylvania Supreme Court

15 A. 656

121 Pa. 563

DUNBAR FURNACE CO. v. FAIRCHILD ET AL

No. 50

Supreme Court of Pennsylvania

October 1, 1888

Argued May 7, 1888

ERROR TO THE COURT OF COMMON PLEAS OF FAYETTE COUNTY.

No. 50 January Term 1888, Sup. Ct.; court below, No. 168 September Term 1881, C.P.

On August 25, 1881, an action of trespass q.c.f. was brought by John W. Fairchild, W. W. Fairchild, J. A. Fairchild and others, against The Dunbar Furnace Company. The narr, filed September 5, 1881, charged that the defendant on September 1 1881, with force and arms broke and entered the plaintiffs' close in Dunbar township, containing about 362 acres, and "then and there mined, dug and carried away the iron ore and other minerals therefrom, and felled and carried away the timber thereon standing and growing, and other wrongs then and there to the plaintiffs did, against the peace and dignity of the commonwealth of Pennsylvania and to the damage," etc. The defendant pleaded not guilty.

On November 27, 1886, the plaintiffs by leave of court, under objection and exception to defendant, filed an amended narr which as again amended on the trial contained the count following:

And for that the plaintiffs were in peaceable possession of the lands aforesaid, and had so been possessed of the same for a long time before the bringing of this suit, the defendant knowing that the said land did not belong to the said defendant, but belonged to the plaintiffs, the defendant did wrongfully and wilfully enter upon and cut, take and carry away large amounts of growing timber, then and there being and standing upon said land, and did convert the said timber so cut as aforesaid by the defendant to the defendant's own use which said timber was of the value of ten thousand dollars to the damage of the plaintiffs of three times the value of said timber, to wit, of $30,000.

The defendant added the plea of the statute of limitations.

At the trial on December 13, 1886, the facts shown were in substance, the following:

On April 1, 1854, John Martin, owning a tract of mountain land containing about 362 acres, and known as part of the John Parker, Sr., tract, made an agreement in writing with his son, William J. Martin, providing that, in consideration of $200 to be thereafter paid, "said John Martin doth agree to grant to said William J. Martin the right and privilege of digging all the ore on his place and lands." This agreement, with payments amounting to $150 indorsed on it, was recorded on November 10, 1855.

On January 21, 1862, by deed recorded the next day, John Martin and wife conveyed to Catharine C. Fairchild "all the estate, right, title, claim and interest" of the grantors in said tract of 362 acres. Catharine C. Fairchild died in October, 1865, leaving to survive her her husband, Alexander Fairchild and the plaintiffs, who were her children. On November 15, 1865, Alexander Fairchild by a contract under seal agreed with the Youghiogheny Coal & Iron Co., to grant, bargain and sell unto the said party of the second part the free and uninterrupted right of way in, upon and out of, all that certain tract of land, situate in Dunbar township, aforesaid, conveyed by deed of John Martin and wife to Catharine C. Fairchild, being part of the tract called by name of John Parker, Sr., . . . for the uses and purposes following, namely: To build and construct and use tram or other roads, to build cabins, houses, etc., near the line of the tram road; to dig and mine iron ore and remove the same off the premises; to cut and make use of such timber growing upon said premises (except such chestnut oak trees as will make bark, and locust timber trees) as may be needed for constructing and using such roads and mining or digging and removing said iron ore: together with all the liberties and privileges incident to or necessary for the full enjoyment and use of said land and premises for the purposes hereinbefore specified, the said company agreeing to do no unnecessary damage and to avoid all injury to the crops or farming of said land; the said use and enjoyment, rights and privileges to commence immediately upon the execution of this agreement. In consideration of the premises the said party of the second part hereby covenants and agrees to grant and convey to said party of the first part that certain piece or parcel of land situate in said township, adjoining land now owned by or in possession of said Fairchild on the east side thereof, and to commence on the northeast corner of said Fairchild's land, and running thence . . . a distance that will include 100 acres by returning to the starting point, excepting and reserving to said company all iron ore, coal or other minerals therein, and all necessary mining rights and privileges for the obtaining and removing the same. . . . The said party of the second part hereby agrees to make and deliver to said party of the first part a good and sufficient deed for said piece of land of 100 acres, with allowance, on receiving a good and sufficient deed from said Fairchild, etc. . . .

It was shown that the Fairchilds moved upon the tract in dispute in 1863, and the defendant claimed that the plaintiffs worked ore in the land and used timber therein, in the employ of the Youghiogheny Coal & Iron Co. Alexander Fairchild died in 1872.

It was agreed on the record that the plaintiffs' and defendant's title, as put in evidence at a former trial on May 4, 1886, should be considered in evidence, and it was stated in the paper book of the defendant, though the papers themselves were not shown, that "These papers put the title of William J. Martin to the ore in the John Parker, Sr., or Fairchild tract, in the defendant, and the title of the Youghiogheny Iron & Coal Co. to the timber, also in the defendant, prior to the trespass alleged in this case." The defendant took possession and began mining operations upon the land in 1876.

It was agreed that the quantity of ore mined should be considered for the purposes of the trial to be 32,006 tons.

J. A. Fairchild, one of the plaintiffs, testified in chief as to the value of the timber cut and used, to a ton of ore mined. On cross-examination, it was proposed by the defendant to ask:

Q. What would it be worth to cut and haul and put it in place? A. It would be owing to the kind of roof. Q. Well, what would be the average price per ton? Objected to by plaintiffs as not a proper cross-examination.

By the court: Objection sustained.

The court, INGHRAM, P.J., charged the jury that no recovery could be had for the value of the ore mined, s the defendant held the title of William J. Martin under the contract with his father of April 1, 1854, but plaintiffs were entitled to recover the value of the timber cut and carried away during six years prior to the time the suit was brought.

The defendant's points were thus answered:

1. That under all the evidence in this case, the plaintiffs are not entitled to recover for the ore taken.

Answer: Affirmed.

2. That under all the evidence in this case, the plaintiffs are not entitled to recover for the timber taken.

Answer: Refused.

3. That if the jury find from the evidence that the defendant company or those under whom it claims, at the time the title to the premises vested in the plaintiffs, was taking the timber off this land under a bona fide claim of right, and continued to do so till after the bringing of this suit, the defendant had such possession as would prevent a recovery for the timber.

Answer: Refused.

4. That, under the pleadings and evidence in this case, the plaintiffs cannot recover treble damages for the timber cut and removed by the defendant.

Answer: Refused.

5. That if the plaintiffs knew that the defendant was cutting and removing the timber under a bona fide claim of right, and made no objection thereto, they cannot take advantage of the act of March 29, 1824, and recover treble damages.

Answer: Refused.

6. That under the act of March 29, 1824, to prevent a recovery of treble damages, an affirmative consent of the owner of the timber is not required; an implied consent is sufficient.

Answer: Refused.

7. That the act of March 29, 1824, under which part of the claim in this suit is made, was intended only to prevent the wilful or careless cutting of another's timber; and that if the jury find from the evidence that the defendant cut and removed the timber under a bona fide claim of right, the plaintiff, if entitled to recover at all, cannot recover treble damages for cutting and removing the same.

Answer: Refused.

8. That if the plaintiffs knew of, and acquiesced in defendant's cutting and removing the timber and made no objection thereto, the jury may find that it was done with plaintiffs' consent, and that, therefore, if entitled to recover at all, they cannot recover treble damages.

Answer: Refused.

9. That if the jury find from the evidence that the plaintiffs knew of and acquiesced in defendant's cutting and removing this timber, and shortly prior to the bringing of this suit demanded of defendant the deed for the one hundred acres of land referred to in the agreement of November 15, 1865, between Alexander Fairchild and the Youghiogheny Iron & Coal Co., this would show plaintiffs' consent to the defendant's cutting and taking the timber, and there could be no recovery of treble damages in this action.

Answer: Refused.

10. That under all the evidence in this case, the plaintiffs are not entitled to recover.

Answer: Refused.

The jury returned a "verdict for the plaintiffs, single damages and interest amounting to $2,320.70." On December 16, 1886, a rule on defendant was entered, to show cause why the amount of damages found by the jury should not be trebled. On September 15, 1887, the rule...