Ill. v. Ogle

• Decision Date: 30 June 1876
• Citation: 82 Ill. 627,25 Am.Rep. 342,1876 WL 10269
• Parties: ILLINOIS AND ST. LOUIS RAILROAD AND COAL CO.v.DAVID OGLE.
• Court: Illinois Supreme Court

82 Ill. 627

1876 WL 10269 (Ill.)

25 Am.Rep. 342

ILLINOIS AND ST. LOUIS RAILROAD AND COAL CO.

v.DAVID OGLE.

Supreme Court of Illinois.

June Term, 1876.

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

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

Messrs. C. W. & E. L. THOMAS, for the appellee.

Mr. JUSTICE CRAIG delivered the opinion of the Court:

This was an action of trespass, brought by David Ogle in the circuit court of St. Clair county, against The Illinois and St. Louis Railroad and Coal Company, to recover damages for an unlawful entry upon the plaintiff's close, and digging out a certain vein of coal. A trial of the cause before a jury resulted in a verdict and judgment in favor of the plaintiff, to reverse which this appeal was taken by the defendant.

The only error assigned is, that the court erred in instructing the jury in regard to the measure of damages, as follows:

“If the jury believe, from the evidence, that the defendant trespassed upon plaintiff's land, and mined coal therefrom, and converted it to its own use, the jury are to be in nowise limited by the value of the land itself, but must regard the instructions of the court upon the question of what is the proper measure of damages.

If the jury believe, from the evidence, that the defendant, by its servants and employees, mined coal from plaintiff's land without his consent, as alleged in the declaration, and did so by mistake or inadvertence, and without knowledge that the coal was being mined from plaintiff's land, then the jury are bound to allow plaintiff the value of the coal taken from his land within five years before this suit was commenced, estimated at the pit mouth, less the cost of carrying it where it was dug to the pit mouth, or, in other words, the plaintiff, under the above circumstances, is to be allowed the value of the coal at the pit mouth, less the cost of carrying it there from the place where it was dug, allowing defendant nothing for the digging, the verdict, however, not to exceed $65,000.”

In Robertson v. Jones, 71 Ill. 405, the same question presented by the instructions of the court in this case arose, and we there held, in an action of trespass, the owner of the mine could recover the value of the coal as soon as it was severed and became a chattel, or he might recover the value of the coal at the mouth of the pit, less the cost of removing it from the mine, after it was dug, to the pit's mouth.

The instructions given are in harmony with the views expressed in Robertson v. Jones, but it is urged by appellant that a different rule has been established in other courts, and our attention is called particularly to Wood v. Morewood, 43 E. C. L. 810; Forsythe v. Wells, 41 Pa. St. 291; and the late case, in Michigan, of Winchester v. Craig, decided at the January term, 1876.

The decision in Robertson v. Jones, supra, although in harmony with other authorities, is predicated mainly on the decision of Martin v. Porter, 5 M. & W. 353, which, like the case before us, was an action of trespass for breaking and entering the plaintiff's close and carrying away coal, by an owner of an adjoining estate. On motion to reduce the damages, before a full bench, it was held that the plaintiff was entitled to recover the value of the coal as soon as it existed as a chattel, which would be its value at the mouth of the pit, after deducting the expense of carrying the coals from the place in the mine where dug, to the pit's mouth.

This decision was rendered in 1839. In 1841, Wood v. Morewood, supra, was tried at Derby Summer Assizes, before Baron PARK, and on the trial the Baron directed the jury: “That if there was fraud or negligence in the defendant, they might give as damages, under the count in trover, the value of the coals at the time they first became chattels, on the principle laid down in Martin v. Porter; but if they thought that the defendant was not guilty of fraud or negligence, but acted honestly and fairly, in the full belief he had a right to do what he did, they might give the fair value of the coals, as if the coal fields had been purchased from the plaintiff.”

This decision is cited by appellant as authority that the rule announced in Martin v. Porter was not adhered to in the courts in England; but the fallacy of the position is fully established...