Argued
October 2, 1894
Appeal
No. 46, Oct. T., 1894, by plaintiff, from judgment of C.P
Westmoreland Co., Aug. T., 1892, No. 123, on verdict for
defendant. Reversed. MITCHELL, J., dissents.
Trespass
for illegal mining of coal.
Plaintiff
in his statement of claim averred that defendant had entered
into and under the surface of plaintiff's land, and
disregarding plaintiff's rights, had mined and converted
to its own use coal to the value of thirty thousand dollars.
Defendant
pleaded not guilty, and at the trial claimed that the case
was barred by the statute of limitations. The evidence showed
that the coal was mined in 1884. Evidence for the plaintiff
tended to show he had no knowledge of the mining until 1891.
The
court charged in part as follows:
"In
regard to the coal, the defendant does not deny that it mined
and carried away the coal under this particular property. It
alleges that it was permitted to go through this coal, and it
denies that it was guilty of any wrongful act in this
respect, because such license was obtained. At any rate
there is no dispute that the defendant took away the coal,
and no dispute that it was in 1884. There seems to be little
dispute as to the amount of coal taken. The plaintiff
contends -- you will remember the testimony of Mr. Long --
that there were 4500 bushels of coal, and the defendant, on
the other hand, alleges that there were about 4000; and under
the act of assembly, which was passed for a case like this,
the plaintiff claims the three-fold value of that coal. The
evidence is that the coal was worth three and a half cents a
bushel; that would be the value, less the cost of taking it
to the mouth of the pit.
"[The
trouble with this branch of the case, as we understand it, is
in regard to the statute of limitations. That is an act of
assembly passed in this commonwealth many years ago. It has
received the sanction of the courts, and must be applied
wherever it can be applied. It stands upon the statute book,
and it provides in plain terms that no action of trespass
shall be maintained after six years from the time the cause
of action arises -- six years after the trespass is
committed. On the theory that the plaintiff adopts, the
defendant went on this property and carried away this coal,
and if suit had been brought in proper time the defendant
would have been liable to pay three times the value of this
coal. But according to the summons the suit was brought on
the 18th day of May, 1892. That was considerably more than
six years after the cause of action accrued. So that, so far
as the coal is concerned, this action cannot be maintained.
If the cause of action accrued in 1884, without considering
whether Mr. Lewey has properly brought the suit, or whether
he ought to have joined Mr. Trimmer, we think the statute of
limitations is a bar to recovery on this branch of the case.
"In
regard to the destruction of the well of water in 1891, the
plaintiff alleges that this injury was occasioned by the same
trespass; that is, the trespass of 1884. There is no evidence
of any other trespass, of any other mining going on under the
Lewey property after that time, and while the cause of action
accrued in 1884, undoubtedly the defendant would be liable
for any other trespass on the property of Mr. Lewey or any
damage occasioned, but it is not alleged in the declaration
that there was any trespass after that time that occasioned
these injuries. The theory of the plaintiff is, that the
original trespass, the taking out of this coal in 1884,
occasioned the falling down of the smoke-stack and some other
injury to the building in September, 1891; there was no very
serious injury to either the building or smoke-stack at that
time. The matter most complained of is this well. It is
alleged that it was valuable, and it totally failed in 1891.
As it appeared from the pleadings and the evidence, the
contention is that this is one of the consequences of the
original trespass in 1884, and we think likewise the statute
of limitations would be a bar. For any trespass you can have
but one action; you must include in that past, present and
future damages -- is the general rule that applies to all
actions of this kind. Such is our view of the law, and hence
we say, as to this branch of the case, the plaintiff is
likewise met with the statute of limitations, which prevents
a recovery.
"In
regard to this well, there is a serious contention of fact.
It appears that the trespass was committed in 1884; there is
no allegation that there was any trespass after that time.
According to the testimony of the plaintiff, there was no
diminution of the water, no indication of the failure of
water, from 1884 to 1891. It was used constantly, or nearly
so. At one time he bought water from the water company at
that place; but the well water was used for the purpose of
running his mill uninterruptedly, or, with slight
interruption, from 1884 to 1891. At that time it failed;
failed rather suddenly. The theory of the defence is, that
they were then mining their own coal, the coal they had a
title to there, on the northeast of the Lewey property. This
entry, as we understand it, ran through the southwest corner
of the Lewey property, about 60 or 65 feet from where this
well was located.
"All
of the experts called in this case agree, and their testimony
is undisputed. And even if the case had been submitted to
you, we should have felt constrained to say that from the lay
of the ground, the natural formation of the strata there, it
was an impossibility that the opening of this heading on the
southwest corner of that lot could have drained the well, or
affected it in any way; and that the contention of the
defendant is, that the well having continued there for a long
lapse of time, from 1884 to 1891, conclusively demonstrates
that such theory is correct. The defendant claims that it was
mining the coal in its own land, and that it had a right so
to do; and if it did that without negligence it would not be
responsible for damages occurring. The defendant's theory
is, that from the structure of the overlying rock, the dip of
the land, the source of supply for this well was northeast of
where the well was located; that this coal was mined in the
years from 1885, 1886, up till 1890, or 1891, when the ribs
were taken out, and when there was a falling in of the rocks
in that locality, and about that time this well failed. If
such were the fact, of course there ought to be no liability.
"This
we mention incidentally, as, if the case had been submitted
to you, it would have been a question for you to determine
whether the taking of this water was caused by the trespass
of 1884, or whether the water failed by reason of the digging
of the defendant's own coal from 1885 to 1891. Although
at the same time, as we have already said, without
interfering with your province, the court would have felt
like indicating to you, that under the uncontradicted
testimony in the case, and considering the long lapse of
time, it would seem to look very much as if no injury to the
well or building could have been occasioned by the driving of
this entry seven years before.
"But
we hold as matter of law that the plaintiff has no right to
recover, and we take it that it is your duty to render a
verdict in favor of the defendant. This is a question of law
altogether, and if there is any error upon the part of the
court we may have an opportunity to review our action and
further consider the matter. At any rate, an error of this
kind can readily be corrected and no injury done to either
party." [8]
Plaintiff's
points were as follows:
"1.
Under the evidence the title to the premises was in the
plaintiff at the time the trespass was committed, and the
plaintiff was in possession of the same. Answer:
Refused." [1]
"2.
Defendants have failed to show any title which would justify
them in entering upon the lands of the plaintiff and in
removing the coal therefrom. Answer: Refused." [2]
"3.
The defendants having admitted that they knew they were
taking the coal under the Lewey premises, and that others
than W. J. Hitchman were in possession of the same and
operating a facing mill thereon, the defendants are liable to
the plaintiff in three times the value of the coal taken by
the defendants and converted to their own use. Answer:
Refused." [3]
"4. We instruct you as a matter of law that the injuries
to the plaintiff's property by reason of the taking of
the plaintiff's coal by the defendant, if any, were
permanent in their character, and the proper measure of
damage is the difference in the value of the property before
and after the injuries were inflicted. Answer: Refused."
[5]
"5.
We instruct you that the trespass complained of amounts to a
secret fraud, and the statute of limitations does not begin
to run until the fraud is discovered. Answer: Refused."
[6]
"6.
The injury complained of being a pure tort, the plaintiff was
not bound to know when his land was undermined; and the
statute of limitations will not operate in favor of the
defendant until six years have elapsed from the discovery by
the plaintiff of the injury done. Answer: Refused." [7]
Verdict
and judgment for defendant. Plaintiff appealed.
Errors
assigned were (1-7, 8) above instruction, quoting it.
The
judgment is reversed and a venire facias de novo awarded.
V. E.
Williams, A. M. Sloan, W. A. Griffith and Atkinson & Peoples
with him, for appellant. -- The statute should not begin to
run from the commission of the act, but only from the time of
its discovery: Mitchell v. Buffington, 10 W.N.C.
361.
The law
is not so tenderly solicitous about the interests...
