Lyons v. Central Coal & Coke Company

• Decision Date: 06 February 1912
• Citation: Lyons v. Central Coal & Coke Company, 144 S.W. 503, 239 Mo. 626 (Mo. 1912)
• Parties: LUTHER LYONS et al. v. CENTRAL COAL & COKE COMPANY et al., Appellants
• Court: Missouri Supreme Court

144 S.W. 503

239 Mo. 626

LUTHER LYONS et al. v. CENTRAL COAL & COKE COMPANY et al., Appellants

Supreme Court of Missouri, Second Division

February 6, 1912

Appeal from Bates Circuit Court. -- Hon. C. A. Denton, Judge.

Reversed and remanded.

Daniel B. Holmes, Thos. J. Smith and Massey Holmes for appellants.

(1) Plaintiffs' action is in trespass alleged to have been committed by the defendants willfully on real estate of which plaintiffs claimed to be the exclusive owners and of which they claimed to be in the exclusive possession when the trespass is alleged to have been committed. This exclusive ownership and possession being a necessary condition precedent to a right of recovery, the court below erred in admitting, over defendants' objections, the two deeds read in evidence. No antecedent title was shown in the first grantor. Hammond v. Johnston, 93 Mo. 221; Smith v. McCorkle, 105 Mo. 141; Cummings v. Powell, 97 Mo. 537. Possession in the plaintiffs of the real estate in question was indispensable to the maintenance of this action. Roussin v. Benton, 6 Mo. 592; McMenamy v. Cohick, 1 Mo.App. 535; Further v. Langford, 11 Mo.App. 288; More v. Perry, 61 Mo. 175; Lindenbower v. Bentley, 86 Mo. 515, 519; Zeitinger v. Hackworth, 117 Mo. 505. And possession of this coal was, as a matter of law, in Williams & Company and not in plaintiffs. Manning v. Coal Co., 181 Mo 359; Waters v. Stevenson, 13 Nev. 157. The cost of production and market value at the place, if there is a known market value there, is the only proper evidence to be admitted. Koeltz v. Beckman, 46 Mo. 320; Northrup v. Cook, 39 Mo. 208; Warren v. Mfg Co., 161 Mo. 124; 1 Wigmore's Ev., sec. 718. (2) The witness Reese having testified for plaintiffs as an expert as to the cost of bringing coal from its natural bed in the mine to the top of the shaft, the court erred in refusing defendants, on cross-examination, to prove all of the elements of the cost which he considered. 2 Wigmore on Ev., sec. 992. (3) The court erred in refusing to admit in evidence the contract made by defendant Coal & Coke Company, showing the price at which it was selling the output of the mine in question covering the period of the defendants' alleged trespass. It was made anterior to the alleged taking complained of by plaintiffs, hence there could have been no motive to induce a contract not expressing the truth, and it was against defendants' interest to have contracted to sell at less than is claimed by plaintiffs to have been the market price. Under these circumstances the evidence was competent and its exclusion error. 2 Wigmore's Evidence, secs. 1422, 1455, 1457, 1462, 1465, 1466, 1467. (4) The court erred in refusing to admit in evidence the lease made by plaintiffs to defendant Coal & Coke Company covering the land in question, under which the testimony of Wallace Lyons shows defendants had entered and were mining coal prior to the institution of this action. It was competent as showing the value in place of the coal, and as showing that at the time of bringing of this action plaintiffs had neither the possession nor right of possession of the land in question. More v. Perry, 61 Mo. 174; Brown v. Hartzell, 87 Mo. 568; Lumber Co. v. Markam, 96 Mo.App. 54; Lindenbower v. Bentley, 86 Mo. 519; Zeitinger v. Hackworth, 117 Mo. 505. (5) The measure of such damage is ascertained by finding the difference between what was the market value of such land immediately before the injury occurred and a like value after the injury is complete. Martin v. Railroad, 47 Mo.App. 452; Sheehy v. Railroad, 94 Mo. 574; Trust Co. v. Bambrick, 149 Mo. 570. If the measure of damages is not the difference between the market value of the land prior to and subsequent to the injury, then it is the value of the coal in place and instruction 1 did not properly charge such measure of damages. In re United Merthyr Collieries Co., L. R. 15 Eq. Cas. 46; Coal Co. v. Rogers, 108 Pa. St. 147; Goller v. Fett, 30 Cal. 481; Jegon v. Vivian, L. R. 6 Ch. App. 742; Coal Creek, etc. Co. v. Moses, 83 Tenn. 300; Austin v. Huntsville Coal Mining Co., 72 Mo. 535; Wood v. Morewood, 3 Q. B. 440; Powell v. Aiken, 4 K. & J. 343; McGuire v. Coal Co., 86 N.E. 174; Keys v. Coal Co., 50 N.E. 911; Hilton v. Woods, 4 Eq. Cas. 432; Crawford v. Oil Co., 57 A. 47; Sandy River, etc. Co. v. White House, etc. Co., 101 S.W. 319; Iron Co. v. Iron Works, 102 Mass. 80.

Silvers & Silvers and Silvers & Dawsons for respondents.

(1) This is not in substance an action for trespass. Trespass on realty, pure and simple, is an invasion only of the plaintiff's right of possession. The real action of trespass is for merely the immediate injury occasioned by the wrongful entering. 28 Am. & Eng. Ency. of Law (2 Ed.), page 551. Oftentimes a trespass or breach of plaintiff's right of possession is followed by an injury to the freehold, and in such a case the injury to the freehold may be recovered for in an action known at common law as trespass on the case. Injury to the freehold does not necessarily follow trespass nor does trespass necessarily precede an injury to the freehold. Plaintiff may suffer an injury to his freehold of which he has no right to possession whatever. In such cases it is not the law that plaintiff cannot recover, simply because his possession has not been disturbed, or because he has no possession to be disturbed. If his property has been damaged he can recover for damages to his freehold estate in an action on the case. 28 Am. & Eng. Ency. of Law (2 Ed.) 622. The abolishment of forms of action in this State does away with the necessity of declaring under either trespass or trespass on the case. It is only necessary to state the facts. Where an injury is to the freehold and not "a mere wrong against the possession," then the action therefor accrues to the owner of the freehold, whether he be in possession or the holder only of a reversionary interest. Ridge v. Transfer Company, 56 Mo.App. 139. The lease to Williams could not be a grant of the fee simple title, for under it his rights terminated in seven years. The plaintiff, therefore, retained a reversionary interest at least. This being true, the plaintiffs had a right to sue for any injury to the freehold which was theirs in reversion. 16 Cyc. 663; Randall v. Cleavland, 6 Conn. 328; Lane v. Thompson, 43 N.H. 320; Tinsman v. Railway, 25 N. J. L. 255; Brown v. Bowen, 30 N.Y. 519; Smith v. Felt, 50 Barb. (N.Y.) 612; Learned v. Ogden, 80 Miss. 769; Beavers v. Trimmer, 25 N. J. L. 97. Actions in trespass may be maintained when the plaintiffs are in the actual or constructive possession. Brown v. Hartzell, 87 Mo. 567. The owner of the freehold may maintain trespass though the same was in possession of a tenant at the time the trespass was committed. Parker v. Shackelford, 61 Mo. 68; Austin v. Coal Co., 72 Mo. 535; Cramer v. Gresdose, 53 Mo.App. 648; Barley v. Fixture Co., 54 Mo.App. 54. Frank Williams's miners houses and store located on this land did not divest plaintiffs of such possession as entitles them to maintain this action. His possession, to defeat plaintiffs' action, must have been adverse (not subordinate) to the plaintiffs' title. Stone v. Perkins, 217 Mo. 604; Thurmond v. White Lime Association, 125 Mo.App. 73; Arnold v. Bennett, 92 Mo.App. 156. Constructive possession follows the title to the land. Turner v. Baker, 64 Mo. 218; Kirk v. Mattier, 140 Mo. 23; Manning v. Coal Company, 181 Mo. 377. Any possession is good as against a wrongdoer. Reed v. Price, 30 Mo. 442; Watts v. Loomis, 32 Mo. 236; Schrodt v. St. Joseph, 109 Mo.App. 627; Restetski v. Railroad, 106 Mo.App. 382. Plaintiffs own the fee title. Their proof of actual possession since 1881 was sufficient. Zeitinger v. Hockworth, 117 Mo. 506. (2) The market value of a commodity is a matter of public notoriety, to dealers in that community. What others may say to them about it at the time is not hearsay within the law. McCrary v. Railroad, 109 Mo.App. 571; Railroad v. Norcross, 137 Mo. 427. Where witness testifies that he knows the value of a commodity, he should be allowed to testify as to its value. His means of knowledge is a matter for cross-examination, going to the weight of his testimony. Browne v. Insurance Co., 46 Mo.App. 473; McCrary v. Railroad, 109 Mo.App. 571. (3) The plaintiffs' recovery was for compensatory damages only. When such damages are asked the motive of defendants is wholly immaterial. Joice v. Bronson, 73 Mo. 28; Hurt v. Railway, 94 Mo. 255; Goetz v. Ambs, 27 Mo. 28; Green v. Craig, 47 Mo. 90. The allegation that the injury was willfully and knowingly done went to the matter of punitive damages only. To render defendants liable for compensatory damages it is not necessary that the injury be done either wilfully or knowingly. Lumber Co. v. Craig, 112 Mo.App. 454. The measure of damages contended for by defendants -- i. e., the difference in value of the real estate as it was before the injury occurred and a like value after the injury is complete -- is the rule with reference to persons appropriating or injuring land under the right of eminent domain, when one is compelled by law to yield up some private right for the good of the general public, not, as in this case, when the injury was committed without the sanction of the law, for the gain it would yield the wrongdoer. In a case of this character, when the act was not willfully or grossly negligent, the true measure of damages is the value of the coal taken at the pit's mouth less the cost of severing it and delivering the same at the mouth of the pit, as was declared by the court in this case. Austin v. Mining Co., 72 Mo. 535; Waters v. Stevenson, 13 Nev. 157; Goller v. Fett, 30 Cal. 481. A slightly modified but more drastic rule is laid down in the following cases: Coal Co. v....