McGuire v. Boyd Coal & Coke Co.

• Decision Date: 26 October 1908
• Court: Illinois Supreme Court
• Parties: McGUIRE v. BOYD COAL & COKE CO. et al.

236 Ill. 69

86 N.E. 174

McGUIRE

v.BOYD COAL & COKE CO. et al.

Supreme Court of Illinois.

Oct. 26, 1908.

Appeal from Circuit Court, Randolph County; Charles T. Moore, Judge.

Suit by E. B. McGuire against the Boyd Coal & Coke Company and another. From a decree for complainant, defendants appeal. Affirmed.

William M. Shuwerk and James H. Martin, for appellants.

R. J. Goddard and H. Clay Horner, for appellee.

DUNN, J.

Appellee, E. B. McGuire, filed his bill in the circuit court of Randolph county against the appellants, the Boyd Coal & Coke Company and W. R. Borders, in which he sought a perpetual injunction restraining them from mining coal from the seams underlying certain land, and for an accounting for coal already taken. A preliminary injunction was granted, which, after a hearing in open court, was made perpetual, and appellants were decreed to pay to appellee $10,634.65, being for 28,000 tons of coal at 37 1/2 cents per ton, in addition to $134.65, the cost of a survey of the mine. The pleadings put in issue complainant's title to the coal. A freehold being thus involved, an appeal to reverse the decree has been prosecuted directly to this court.

The evidence shows that the complainant owned the seams of coal in question, but not the surface of the land, and that the defendant Borders owned the coal underlying the adjoining land, which he had leased to his codefendant, the Boyd Coal & Coke Company, of whose capital stock of $112,000 he owned all but four shares. The company, under his express direction, knowingly and intentionally went over the line and mined complainant's coal for some time before this bill was filed, and until the injunction writ was served upon them.

It is first insisted that complainant's remedy at law was complete and adequate, and that therefore a bill in equity will not lie to enjoin a trespass. This is the rule as to a single act of simple trespass to property; but, where there are continuing and repeated trespasses of a grave character, causing irremediable injury and the absolute destruction of the complainant's property, equity will interfere by injunction. Village of Itasca v. Schroeder, 182 Ill. 192, 55 N. E. 50;City of Joliet v. Werner, 166 Ill. 34, 46 N. E. 780;Edwards v. Haeger, 180 Ill. 99, 54 N. E. 176;City of Peoria v. Johnston, 56 Ill. 45. Where irremediable mischief has been done or thereatened, going to the destruction of the substance of the estate, such as the extracting of ores from a mine, the cutting down of timber, the removal of coal, or the extraction of oil or gas, an injunction will be granted. Erhardt v. Boaro, 113 U. S. 537, 5 Sup. Ct. 565, 28 L. Ed. 1116;Bettman v. Harness, 42 W. Va. 433, 26 S. E. 271,36 L. R. A. 566. The objection that appellee had an adequate remedy at law was not presented to the circuit court by demurrer or answer to the bill, but is presented here for the first time. It comes too late. The existence of a remedy at law cannot be set up, on appeal, to defeat an injunction, when it was not presented by way of demurrer or answer to the bill. Monson v. Bragdon, 159 Ill. 61, 42 N. E. 383;Village of Vermont v. Miller, 161 Ill. 210, 43 N. E. 975;Kaufman v. Wiener, 169 Ill. 596, 48 N. E. 479.

It is next insisted that the evidence fails to show that appellee was the owner of the coal, because the description in the deed of conveyance to him is defective. The description in the deed is inaccurate, but by reference to two other recorded deeds, which were offered in evidence, it is made entirely certain. His grantors are shown to have been in possession under a deed purporting to convey the entire fee to them, and their deed to the appellee of the underlying coal was therefore prima facie evidence of title in him.

Appellants contend that the court...