Henry v. Lowe

• Decision Date: 31 October 1880
• Citation: 73 Mo. 96
• Parties: HENRY v. LOWE, Appellant.
• Court: Missouri Supreme Court

73 Mo. 96

HENRY

v.LOWE, Appellant.

Supreme Court of Missouri.

October Term, 1880.

Appeal from Johnson Circuit Court.--HON. NOAH M. GIVAN, Judge.

AFFIRMED.

G. N. Elliott and Land & Sparks for appellant

1. Plaintiff having one count under the statute, and one count under the common law, and the verdict being general, without any finding of value, it will be presumed by the court to be for single damages only, and the court has no power to treble the damages.

2. Section 5, chapter 138, Wagner's Statutes, is not found in the revision of 1855, but is section 1 of an act approved February 20th, 1857, and makes no provision in any of its parts for anything but single damages, and provides a remedy and enacts a penalty for a trespass not provided for in the laws of 1855. It is a new statute and not an amendment, and must be regarded as incorporated into the revision of 1865 and Wagner's Statutes with the construction and object had in view by the legislature of 1857.

3. The jury, under the evidence, must have assessed the damages for the trespass under the surface, and under section 5, by which single damages only can be recovered. Lowe v. Harrison, 8 Mo. 358; Ewing v. Leaton, 17 Mo. 465; Labeaume v. Woolfolk, 18 Mo. 514; Brewster v. Link, 28 Mo. 147.

4. There was no warrant in the court for trebling the damages, under the evidence, as the defendant is shown to have acted in good faith, that he made both entries on his own land, neither worked himself or permitted his hands to work on the disputed territory after the dispute arose, Walther v. Warner, 26 Mo. 143; Townsend Libel & Slander 108, 109; Hilliard on Torts, 283, § 3; §§ 11, 12; 3 Bouvier Inst., 232; Field on Dam., § 63; Riddick v. Governor, 1 Mo. 147; State v. Canton, 43 Mo. 48.

5. The court erred in overruling motions to tax costs to plaintiff after tender and deposit in court, Februry 12th, 1877, and the offer of judgment October 9th, 1877. Wag. Stat., 346, § 25; Wag. Stat., 1048, § 51; Lee v. Stern, 22 Mo. 575; Dakin v. Dunning, 7 Hill 30; Jahnson v. Sagar, 10 How. Pr. 552; Parsons on Costs, 81, 82; Pike v. Johnson, 47 N. Y. 1; Johnston v. Catlin, 57 N. Y. 652; Abbott v. Wood, 22 Me. 541.Smith & Shirk for respondents.

1. Coal is included in section 1.

2. The burden of proving probable cause was on defendant. Walther v. Warner, 26 Mo. 143, 149.

3. The jury were confined by the instructions to finding the value of the coal taken, and the verdict was responsive to the instructions. Hence this case is distinguishable from Lowe v. Harrison, 8 Mo. 350; Ewing v. Leaton, 17 Mo. 465; Labeaume v. Woolfolk, 18 Mo. 514; Herron v. Hornback, 24 Mo. 492; Brewster v. Link, 28 Mo. 147; Shrewsburg v. Bawtlitz, 57 Mo. 414.

4. The motion to tax costs after the 12th day of February, 1877, against plaintiff, was properly overruled. It was under section 25, page 346, Wagner's Statutes. It is not within that section. There is no evidence he made any deposit with the clerk. Besides, plaintiff did recover “a larger sum for his damages.” It cannot be claimed this section only refers to single damages. It refers to what plaintiff is entitled to recover. For the same reason the motion to tax costs against plaintiff after October 9th, 1877, was properly overruled. It is under section 50, page 1048, Wagner's Statutes. There is no evidence defendant gave notice to or offered plaintiff in writing that he might take judgment for $50. Besides, plaintiff did “obtain a more favorable judgment.” Both motions depend on the right of the court to treble the damage. It had that right.

1. PRACTICE IN SUPREME COURT: general verdict on several causes of action.

HOUGH, J.

The petition in this case contained two counts, and although there was a general verdict for the plaintiff, it will be unnecessary for us to determine whether these counts stated several and distinct causes of action, or only one cause of action in different forms, inasmuch as no objection was made to the verdict in the court below, and such objection cannot be made for the first time in this court, Bigelow v. N. M. R. R. Co., 48 Mo. 510; Owens v. Hannibal & St. Joseph R. R. Co., 58 Mo. 386, 394. Besides, it appears from the record that the second count was virtually disregarded by the parties at the trial.

The first count was based on the 1st section of the act in relation to trespass, and charged the defendant with willfully digging and carrying away certain coal from the land of the plaintiff, without having probable cause to believe that said land was his own; and prayed for judgment for treble the value of such coal. The jury were instructed to assess the damages, if they found for the plaintiff, at the market value of the coal dug and carried away by the defendant. They returned a verdict for $23.75, which sum was, on motion, trebled by the court, and judgment entered accordingly. It is contended by the defendant that the court erred in trebling the damages, 1st, Because coal is not included in the 1st section of the statute allowing treble damages; 2nd, Because the jury did not find the value of the coal taken; 3rd, Because the defendant had probable cause to believe the land from which the coal was taken, was his own.

2. THE TRESPASS ACT: coal, a “mineral” within its meaning.

The statute gives treble damages against any person who “shall dig up, quarry or carry away any stones, ore or mineral, gravel, clay or mould, roots, fruits or plants,” in which he has no interest or right, and being on land not his own. R. S., § 3921. The statute does not undertake to enumerate the various ores or minerals, for the disturbance or removal of which it allows damages, but it embraces all minerals. Coal is a well known mineral of great value, which has been mined in this State from an early period, and it would appear strange indeed if the law should punish the removal of stone, gravel or clay with treble damages, and allow only single damages for the wrongful removal of coal. This objection is untenable.

3. ______: judgment for treble damages: verdict.

Nor is the second objection well taken. The jury were instructed to return a verdict in damages for the market value of the coal, if they found for the plaintiff, and we are to presume that they did so; and the court very properly treated the verdict as determining the...