Ill. v. Ogle

• Decision Date: 30 June 1879
• Citation: 1879 WL 8533,92 Ill. 353
• Parties: ILLINOIS AND ST. LOUIS RAILROAD AND COAL COMPANYv.JOSEPH OGLE.
• Court: Illinois Supreme Court

92 Ill. 353

1879 WL 8533 (Ill.)

ILLINOIS AND ST. LOUIS RAILROAD AND COAL COMPANY

v.JOSEPH OGLE.

Supreme Court of Illinois.

June Term, 1879.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of St. Clair county; the Hon. WILLIAM H. SNYDER, Judge, presiding.

Messrs. G. & G. A. KŒRNER, for the appellant:

This was an action of trespass quare clausum fregit for mining and carrying away coal from the land of appellee. The coal was mined upon the land of appellee by mistake. We again ask that the rule as to the measure of damages in such cases, as laid down in Robertson v. Jones, 71 Ill. 405, and Illinois and St. Louis Railroad and Coal Co. v. Ogle, 82 Id. 627, be reconsidered by this court. The rule is violative of the principle that a party injured is entitled to compensation, and no more, where the injury has not been wilfully inflicted. And even in the latter case, there is an evident leaning on the part of courts to do away with the doctrine of punitive damages. See Bass v. Chicago and Northwestern Railroad Co., recently decided by the Supreme Court of Michigan.

The court will observe that this is an action of trespass vi et armis for breaking the close of plaintiff and digging on the land, which is the gravamen of the charge, and taking away the coal. It is not an action of trover, where a demand is made for the property taken, and where the plaintiff goes on the principle that the property is not changed and that he is entitled to its return. If defendant refuses to let him have the property, he makes himself liable for the consequences, whatever they may be. If plaintiff chooses he may also have his action of replevin, and if he identifies the property he can take it, although the defendant by his labor may have bestowed additional value to it. These actions are in the nature of what the civilians call the rei vindicatio. But in an action of trespass the plaintiff goes upon the principle that he has lost his property and the defendant has acquired it, and he seeks his compensation in damages to be assessed according to the amount of his loss. He will generally fare well if he gets that, in cases of trespass on coal land; because, in leasing the land for coal mining he would receive his money by installments,--would run the risk of losing his rent,--while if after a lapse of time he ascertains that his neighbor has encroached upon him, he at once gets full pay for all the coal taken out, and interest too, from the time the taking has taken place.

We insist upon this difference in the actions. It is not a mere formal and technical difference, but an essential one. The actions of detinue and replevin go upon the principle that there is no change in the property, and the plaintiff seeks to recover the specific thing.

The action of trespass, both vi et armis and on the case, is exclusively for the recovery of damages such as the party has actually sustained (except when the principle of punitive damages is allowed to operate). In suing for the taking of personal property in trespass the person injured waives the property in the thing, allows it to be in the wrong-doer and claims damages in lieu of the property lost. The proper definition of damages is the indemnity given by law, to be recovered from a wrong-doer by a person injured in his rights, person or property. 1 Bouv. Law Dictionary, sub verbo “Damages.”

Upon the principal question,--that in relation to the measure of damages,--we call the attention of the court to a late unanimous decision of the Supreme Court of Michigan, of January term, 1876, Winchester v. Craig et al. (reported in Central Law Journal, vol. 3, No. 7, Feb. 18, 1876). The case, however, was an action of trover, for cutting timber by mistake. The value of the timber standing was proved to be worth $1.50 per thousand feet, the cost of cutting 50 cents. The timber at the Toledo market was worth $12.00 per thousand feet.

The jury found the value of the timber at $2.00 per thousand feet and gave damages accordingly. The plaintiff appealed, but the court affirmed the judgment.

In one respect this court, in the case of Robertson v. Jones et al., and the Supreme Court of Michigan agree, that is to say, both courts hold that there ought to be no distinction between trover and trespass. But the Michigan court, while indicating that in the latter action the plaintiff could have only recovered the actual damage, says the same principle should be applied to an action of trover; while this court, upon the idea that in trover the value at the time of conversion could be recovered, allows the same thing to be done in an action of trespass.

The Supreme Court of Michigan does not found its opinion simply upon sound reasoning, but refers to several authorities of high standing.

We have examined the cases cited carefully, and they fully bear out the doctrine that no more than the actual value of the coal in the mine could be recovered.

The first case to which reference is made is that of Wood v. Moonwood, 3 A. and E. N. S. 440, where PARK, B., instructed the jury: If there was fraud or negligence on the part of the defendant, they might give as damages under the count of trover (which was joined to a count in trespass) the value of the coals, on the principle as laid down in Martin v. Porter, 5 M. and W. 351, (which is the principal case relied on by this court in Robertson v. Jones et al.) but if they thought the defendant was not guilty of fraud or negligence, but acted fairly and honestly with full belief that he had a right to do whatever he did, they might give the fair value of the coal as if the coal fields had been purchased from the plaintiff.

In the case just cited it appears, from the report, that the plaintiff had proved the value of the coal as severed to be worth between £>>>>10,000 and £11,000. The jury, finding no fraud, gave under instructions of the court a verdict of £ 2,301.

The Supreme Court of Michigan then examines the New York cases where (in trover) a contrary doctrine seems to have been held, and comes to the conclusion that the latest cases in that State seem to overrule the former, and that it is very doubtful whether the present court would adhere to their former decisions. See also, Heard v. Jones, 49 Miss. 236.

We also specially rely on Baldwin v. Potter, 12 Conn. 484, where the court say: “That the value of the property converted is the general rule of damages in an action of trover, is admitted. To this rule there are exceptions. And both rule and exceptions proceed upon the principle that the plaintiff ought to recover as much and no more damages than he has actually sustained, which commonly is the value of the property. No good reason, consistent with moral principle, can be suggested why greater damages should ever be recovered than have in truth been sustained, except where the law permits by way of punitive justice the recovery of vindictive damages.”

In Pennsylvania the leading case is Forsythe v. Wells, 41 Penn. St. 291. See also, Hill v. Canfield,56 Penn. St. 454.

The case of Martin v. Porter, 5 M. & W. 353, it is admitted, sustains the rule adopted by this court. But in a later case, Wood v. Moonwood, 43 E. C. L. 810, it was not adhered to. To be sure, this was a nisi prius decision, but by a very eminent judge, and although distinguished counsel were opposed to this ruling, they did not move for a rule to set the verdict aside. It is very true that in the still later case of Meyer v. Powell, the Court of King's Bench fell back on the first authority of Martin v. Porter, but it is to be remarked that when Meyer v. Powell was first tried before COLERIDGE at nisi prius, he entirely disapproved of the rule as established in Martin v. Porter, and only reluctantly yielded to authority. But even in the decision by Lord DENMAN in Meyer v. Powell, we do not find the rule to be laid down as a universal one, for it concludes in this wise: “Instances may be easily supposed where particular circumstances would vary this mode of calculating the damage, but none such appear.” This decision, Meyer v. Powell, was made in 1842.

The same question arose in 1871 in the Court of Chancery in England. Chancery Appeals, vol. 6, pp. 761, 762. Lord Chancellor HATHERLY expresses his disapprobation of the rule laid down in Martin v. Porter and Meyer v. Powell, and adverted to the inconsistency of the principle applied by the courts at common law, and although the courts of chancery in England adopt almost universally the rules of property as established by the courts of common law, he modified the master's report, who had assessed the damages in a coal mine case according to the rule laid down by Lord DENMAN, and directed the master “to assess the value of the mineral and coal got from the mines, the defendant to be charged with the fair value of such coal and other minerals at the rate as if the mines had been purchased by the defendant at the fair market value of this district.”

The current of American authorities, we think, sustains the rule we contend for. United Mirthy Collier Co. ex parte, 17 Am. R. 529; Forsythe v. Wells, 41 Pa. 291; Hardin v. York, 55 Id. 176; Aldeman appeal, 62 Id. 278; United States v. Magoon, 3 McLean, 171, a case which arose in Illinois, and which decided that for lead mined in the ore, the damages should be the lead in the ore and not mined; Baldwin v. Potter, 12 Conn. 44; Stockbridge Iron Co. v. Cone Iron Works, 102 Mass. 80; Goller v. Felt, 30 Cal. 482; Single v. Schneider, 30 Wis. 570, a very strong case, where the cutting of timber had been wilful; Waymouth v. Railroad Co. 24 Wis. 290; Weatherbee v. Green Davis, 22 Mich. 311; Hungerford v. Bedford, 29 Ind. 345; Waters v. Stevenson, decided by the Supreme Court of Nevada at the April term, 1878; reported in “The Reporter,” vol. 6, p. 428, also in “Central Law Journal,” vol. 7, p. 301. The latter case is a very well considered and exhaustive opinion, reviewing all decisions on the point, including ...