Ege v. Kille

• Decision Date: 01 October 1877
• Parties: Ege <I>et al. versus</I> Kille <I>et al.</I>
• Court: Pennsylvania Supreme Court

Page 333

84 Pa. 333

Ege et al. versus Kille et al.

Supreme Court of Pennsylvania.

May 19, 1877.

October 1, 1877.

May 19th 1877.

Before AGNEW, C. J., MERCUR, GORDON, PAXSON, WOODWARD and STERRETT, JJ. SHARSWOOD, J., absent

Error to the Court of Common Pleas of Cumberland county: Of May Term 1877, No. 145.

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S. Hepburn, Jr., and S. Hepburn, for plaintiffs in error.—The testimony offered from which the jury were to ascertain the value of the ore in place was inadmissible, as it consisted chiefly of hearsay and secondary evidence, and the court erred therefore in submitting to the jury the questions as to the cost of mining, cleansing and putting the ore in market, and the market value of the ore, as there was no legitimate evidence upon any of these questions.

The various admissions of testimony and instructions of the court on the subject of permanent improvements were contradictory, and tended to confuse the jury. The value of the machinery, &c., as personal property — the only way in which it was valued — was confounded with the permanent increase of value which the developments and improvements gave to the land. This was wrong in any event, but particularly so if it belonged to the lessees of defendants and they were permitted to retain it.

The action for mesne profits is an equitable one. Is it equity to forbid plaintiffs to recognise the rights of their tenants? The royalty — the rent — had been paid to Kille. Was it right, in an action against him, to make his tenants pay it again by confiscating their property?

The average value of the improvements "and the average increased value by machinery, &c.," were certainly not supported by any evidence, and therefore the statement sent out with the jury by defendants was an improper one: Morrison v. Moreland, 15 S. & R. 61; Terry's Executors v. Drabenstadt, 18 P. F. Smith 400.

L. Todd and John Hays, for defendants in error.—What better mode could be adopted to ascertain the value of ore in place than the result of mining at the banks for the ore for which compensation is sought? And the evidence to show this result was competent. The charge of the court upon the measure of damages was in accord with Forsyth v. Wells, 5 Wright 291, and with the positive evidence as to the cost of mining ore, of its market value, supported by the amounts expended in mining by the principals who paid and the agents who disbursed the money, it would have been error not to submit the question to the jury.

The instructions of the court upon the questions of permanent improvements are abundantly sustained by authority: Voorhis v. Freeman, 2 W. & S. 119; Pyle v. Pennock, Id. 390; Hill v. Sewald, 3 P. F. Smith 274.

The plaintiffs were rightly in possession of the machinery. When one fixes his own chattels on another's land, it is in legal effect a gift of them to the owner of the land: Hill v. Sewald, 3 P. F. Smith 271.

The recovery in ejectment evicted the tenants: Bauders v. Fletcher, 11 S. &. R. 419; Ross v. Dysart, 9 Casey 452; Tiley v. Moyers, 7 Wright 410; Steel v. Frick, 6 P. F. Smith 175; Schuylkill Improvement Co. v. Schmoele, 7 P. F. Smith 271. It terminated the relation of landlord and tenant between the defendants and their lessees, and the right to remove any of the fixtures — anything that gave the property its changed and distinctive character — was gone: Hill v. Sewald, 3 P. F. Smith 272; Heffner v. Lewis, 23 Id. 302; Hey v. Bruner, 11 Id. 87. The answers of the court were therefore consistent throughout.

The statement sent out with the jury was based upon evidence and was proper: Blight's Executors v. Ewing, 2 Casey 135.

Mr. Justice MERCUR delivered the opinion of the court, October 1st 1877.

This was an action of trespass for mesne profits. Twenty errors are assigned. It is unnecessary to consider each separately. They involve a few principles only. The controlling questions are, the value of the ore taken; the manner of proving that value; and the character of the improvements which may be recouped or set off against the value of the ore mined and appropriated by and under the defendants.

1. The evidence shows the defendants were bona fide purchasers of the land for value, and were in possession under color of title when the trespasses were committed. At the time they took possession the mines were unimproved. They expended large sums of money in their development. They made permanent improvements of great value. Having acted in good faith in the working of the mines and in the removal of the ore, they should be chargeable for the latter only with its value in place: Forsyth v. Wells, 5 Wright 291; Herdic v. Young, 5 P. F. Smith 176; Coleman's Appeal, 12 Id. 252.

2. Ore-leave, or the right to dig and take ore, can have no general market value. Its value depends on the position and circumstances of each particular mine; on the quality of the ore; the cost of mining and preparing it for market; its proximity to the places where it is to be used; and on the facilities for transportation: Coleman's Appeal, supra. Hence there was no error in the court charging as it did, substantially, that the value of the ore in place was to be ascertained by deducting the cost of mining, cleansing and delivering the ore in market, from its market value thus delivered — the difference being its value in place. Those costs and expenses only which are reasonable and necessary should be deducted from the gross receipts. The court very correctly said to the jury, "no extravagant or unnecessary expenditures, but only such, or so much thereof, as are proper and legitimate expenditures, should be taken into account in ascertaining the real or legitimate cost of mining, or the value of the ore in place."

We discover no error in the mode of proving the necessary costs and expenses of operating the mines. Due regard should always be had to the usual and ordinary manner of conducting the particular business in question. Each branch of industry has its usages and its practices. The work of mining is one of magnitude. It requires the employment...