Mapel v. John

• Decision Date: 01 April 1896
• Citation: 42 W.Va. 30,24 S.E. 608
• Parties: MAPEL. v. JOHN.
• Court: West Virginia Supreme Court

24 S.E. 608

42 W.Va. 30

MAPEL.

v.JOHN.

Supreme Court of Appeals of West Virginia.

April 1, 1896.

Coal Mining—Statutory Restrictions—Consti tutionality — penalty for violation — mod! of Recovery — Damages — Demurrer to Evidence—Procedure—Verdict.

1. Section 7 of chapter 79 of the Code is as follows: "No owner or tenant of any land containing coal shall open or sink, or dig, excavate or work in any coal mine or shaft, on such land, within five feet of the line dividing said land from that of another person or persons, wit limit the consent, in writing, of every person interested in, or having title to, such adjoining lands in possession, reversion, or remainder, or of the guardians of any such persons as may be infants. If any person shall violate this section, he shall forfeit five hundred dollars to any person injured thereby who may sue for the same." This statute is constitutional, and by the term "injury" means the wrong done the party by the violation of the statute.

2. The penalty prescribed may be recovered by the person injured in an action of trespass on the case in the form set forth in the opinion.

3. Plaintiff or defendant may demur to the evidence, and the demurrant must set out the whole evidence; and the court, unless it be plain-ly against the demurrant, and appears to be re-| sorted to only for delay, should compel the other party to join in the demurrer without requiring the demurrant to make on the record any admission of inferences of fact; but it is for the court to deduce all inferences fairly deducible from the evidence demurred to.

4. By demurring to evidence the demurrant is now, under section 9 of chapter 131, not held to waive any part of his competent evidence; but where it conflicts with that of the other party it will be regarded as overborne, unless it manifestly appears to be clearly and decidedly preponderant. He admits the credit of the evidence demurred to, and all inferences of fact that may be fairly deducible from the evidence, but only such facts as are fairly deducible; and refers it to the court to deduce such fair inferences.

5. It is not necessary for the jury to find any hypothetical verdict for damages where, as in a case like this, the action is on a statute, and only for a forfeiture or penalty definitely prescribed thereby.

6. Where, as in this case, the statute prescribes the penalty or the sum to be forfeited, but not the form of action, debt will lie; or the form of action may be such as the particular nature of the wrong or injury may require.

7. Any person injured by the violation of a statute may recover from the offender such damages as he may sustain by reason of the violation, although a penalty or forfeiture for such violation be thereby imposed, unless the same be expressly mentioned to be in lieu of damages. Section 7, c. 103, Code.

(Syllabus by the Court.)

Error to circuit court, Monongalia county.

Case by Thomas Mapel against Lemuel N. John to recover a penalty and damages for mining coal within five feet of the division line between the lands of plaintiff and defendant There was a judgment for plaintiff, and defendant brings error. Affirmed.

Okey Johnson and L. V. Keck, for plaintiff in error.

Geo. C. Sturgiss and Cox & Baker, for defendant in error.

HOLT, P. This is a writ of error by defendant, John, to a judgment rendered in an action of trespass on the case against him by the circuit court of Monongalia county on the 20th day of June, 1894, in favor of plaintiff, Mapel, on his demurrer to the evidence for the penalty of $500 as prescribed by the following statute: "No owner or tenant of any land containing coal shall open or sink, or dig, excavate or work in any coal mine or shaft, on such land, within five feet of the line dividing said land from that of another person or persons, without the consent in writing, of every person interested in, or having title, to such adjoining lands in possession, reversion, or remainder, or of the guardians of any such persons as may be infants. If any person shall violate this section, he shall forfeit five hundred dollars to any person injured thereby who may sue for the same." Code 1891, p. 668, c. 79, § 7.

The defendant, by counsel, assigns the following errors: "(1) The overruling the demurrer to the original and amended declaration. (2) In refusing to require the plaintiff to elect whether he would proceed for common law or statutory damages. (3) In refusing to set aside the verdict and grant a new trial. (4) In refusing to arrest said judgment because the declaration contained no count under the statute for the forfeiture. (5) In entering a judgment for plaintiff on said demurrer to evidence."

As the declaration demurred to is based upon a statute of great practical interest in this state, therefore it may answer a useful purpose to give the last count in full, which Is as follows: "And for that the plaintiff heretofore, to wit, on the 1st day of January, 1892, at the county aforesaid, was possessed and the owner in fee simple of a certain other tract of land in Cass district, in said county, containing—— acres, more or less, and under and upon which there was and is a large and valuable vein of bituminous coal; and the said defendant during all the time aforesaid was and still is possessed and the owner in fee simple of a certain tract of land in said county and district, and adjoining the said tract of the said plaintiff, and under and upon which said last-mentioned tract the said vein of coal continues and thereunder remains along and under the boundary and division line between the said tracts; and the plaintiff and defendant being so respectively possessed of the said tracts, the said defendant, to wit, on the 1st day of April, 1892, opened the said vein of coal on his said tract, near to the boundary and division line between the said tracts, and then and there unlawfully, wrongfully, and contrary to the statute in such cases made and provided, did open, dig, excavate, work, and remove the said vein of coal up to the said boundary and division line between said tracts without the consent of the plaintiff in writing or otherwise; by reason of which wrongful and unlawful act of the said defendant the plaintiff was injured and damaged five hundred dollars, and the said defendant thereby became and was and is liable to plaintiff in the said sum of five hundred dollars, and to the damage of the plaintiff five hundred dollars; and therefore he sues, " etc.

The declaration contained three counts. The first one may be said to be a commonlaw count in trespass on the case for the damages sustained, case being used instead of trespass, as authorized by statute (section 8, c. 103). The second count is like the third count given above, with the additional averment that the opening was extended across the dividing line. By the statute sued on the penalty of $500 is given to the party injured. No part of it goes to the state, so that the action would not be in the name of the state. See Code, c. 36. The first act was passed on the 3d day of March, 1834. The action of debt was prescribed. Acts 1833-34, p. 82. No specific mode of recovery is provided by the statute sued on, and therefore an action of debt lies, being the usual remedy. West v. Kawson, 40 W. Va. 48, 21 S. E. 1019; Sims v. Alderson, 8 Leigh, 479; 1 Chit Pl. (10th Am. Ed.) top page 125, and cases cited. But in such case, where the statute gives a right of action without prescribing the form, the action is to be adapted to the nature of the case, and modeled according to the distinctions of the common law. It may be an action of debt, assumpsit, trespass, or case, as the particular nature of the wrong or injury may require. Bullard v. Bell, 1 Mason, 243, 290, Fed. Cas. No. 2, 121; Com. Dig.; 3 Rob. Prac, 383. Any person injured by the violation of a statute may recover from the offender such damages as he may sustain by reason of the violation, although a penalty or forfeiture for such violation be thereby imposed, unless the same be expressly mentioned to be in lieu of damages. Code, § 7, c. 103. This, however, does not of itself give the right of joining a suit for such damages with a count for the penalty. But in this case the court virtually instructed the jury to disregard the first count, and, judgment being given only tor the penalty, the question of the addition of the first or faulty count does not arise. Code, c. 131, § 13.

The court did not err in refusing to require plaintiff to elect between the two counts, for the reason already given. Such election could not be made, as the court instructed the jury to disregard the first count, and to find conditionally the penalty fixed by the statute. In this case, therefore, there was no occasion for the jury to find any verdict at all. All that was needed was for the evidence on each side to be set forth in the ...