Morris & Essex Mut. Coal Co. v. Delaware, Lackawanna and Western Railroad Co.

• Decision Date: 27 March 1899
• Docket Number: 347
• Parties: The Morris and Essex Mutual Coal Company, Appellant, v. Delaware, Lackawanna and Western Railroad Company
• Court: Pennsylvania Supreme Court

42 A. 883

190 Pa. 448

The Morris and Essex Mutual Coal Company, Appellant, v. Delaware, Lackawanna and Western Railroad Company

No. 347

Supreme Court of Pennsylvania

March 27, 1899

Argued February 22, 1899

Appeal, No. 347, Jan. T., 1898, by plaintiff, from judgment of C.P. Lackawanna Co., June T., 1892, No. 41, on verdict for defendant. Affirmed.

Appeal from report of jury of view. Before ALBRIGHT, P.J., of the 31st judicial district, specially presiding.

At the trial it appeared that in 1886 the defendant entered upon the land of the plaintiff and removed a large quantity of culm for the purpose of using it for ballast, filling, excavations and embankments.

N. S Stetler, called by defendant, testified as follows:

"Q. Is not it a fact that the material in dumps in those years was used for filling up ground, and grading streets and other purposes of that character, it being furnished free of cost by the owners thereof?"

Plaintiff objects to the question as irrelevant and immaterial.

The Court: The latter part is objectionable, but the first part of the question is admitted and may be answered, that is whether it was generally used for filling material.

The objection overruled. Exception noted for plaintiff at whose request a bill is sealed. [1]

"Q. What is the fact as to that, whether it was used as filling material? A. Yes, it has been, a great deal of it."

Samuel Hines, called by defendant, testified as follows:

"Q. Is it not a fact that culm dumps were used during those years in filling and grading, ballast of tracks and railroads filling streets and excavations?"

Plaintiff objects to the question as immaterial and irrelevant.

The Court: The objection is overruled. It may have some bearing upon the value of the dump in question at the time. Bill sealed for plaintiff.

"A. Yes, sir." [2]

A. B. Stevens, called by defendant, testified as follows:

"Q. Do you know whether or not it is a fact that in the year 1882 and down to as late as 1886, a dump of the character of the one in question here, and the materials in it, were used for filling and grading and general land purposes, and not as fuel?"

Plaintiff objects to the question as immaterial and irrelevant.

Mr. Warren, of counsel for defendant: I will add to the question whether "without cost, proprietors here in those years did not permit it to be taken away (without cost to the proprietors) and whether they were not glad to get rid of it?"

Plaintiff objects to the question as establishing a custom which does not affect the value in any way.

The Court: Objection is overruled. Bill sealed for plaintiff.

"Q. What do you say? A. I say that is a fact." [3]

Samuel Hines further testified on the part of the defendant, as follows:

"Q. Do you remember whether pea coal was being prepared for market during those years by your company?"

Mr. Torrey, of counsel for plaintiff: "Q. Where was the culm dump during those years, on the east or on the west side of the railroad? A. I am not certain. At the beginning of the time I think perhaps a small quantity may have been dumped on the west side, but the most of it was dumped opposite the railroad, across the railroad. Q. That is on the east side? A. Yes, sir."

Plaintiff now objects to the question of defendant's counsel.

The Court: But is there evidence in the case by which it could be inferred that the character of the coal differed much when they dumped on the one side or the other?

Mr. Torrey: This is an inference, your honor, which cannot be drawn.

The Court: Without any distinct evidence that the character of the refuse changed when they began to dump on the east side, we think that this witness might testify his knowledge as to the character of the refuse generally; it may have some bearing upon that which was in the bank on the west side.

Objection overruled; exception for plaintiff and bill is sealed.

REDIRECT EXAMINATION.

Mr. Warren: "Q. Now the question I asked you was whether you remember whether there were screens in the breaker for the preparations of pea coal during those years? A. We shipped no pea during my time. Q. Were there screens for its separation and preparation there? A. I think there were. Q. What kind of coal was the steam generated with that was used? A. With pea coal. Q. Now do you remember the character of the veins that were mined by the company, as to thickness, as to quality, and the character of the coal; if so, tell us what your recollection is as to that. A. The coal that we got from what I presume you call the plaintiff's tract there, what we call the Carbon Hill tract, was very thin; the vein was very thin, and mixed very largely with rock and slate; it was dirty, it was very costly to mine. Q. Now coming down to 1882 and those four years following, 1882 to 1886, and including the year 1886, what were you personally engaged in then? A. I was engaged in the work of the Hillside Coal and Iron Company in those years. Q. In what official position if any? A. First as superintendent, and afterwards as president. Q. It was mining in this region, was it not, during these years, from 1882 to 1886? I don't mean in the Mudtown breaker, but in this section of Pennsylvania? A. Yes, sir. Q. How many collieries did you have during those years? A. Part of the time four, part of the time six. Q. Was the work of the company during those years under your personal supervision and control? A. General oversight, I should rather call it. Q. Did you have opportunities to ascertain the prices of coal in the market during those years and the demand for the several sizes? A. To some extent, yes. Q. This company mined quite a large tonnage, did it not, during these years? A. Well, we thought it was a large tonnage, but we don't consider it large today. Q. Well, it ran into the hundred thousands? A. Yes, sir, five or six hundred thousands a year. Q. And the mining was done through breakers with screens in the preparation that was then used? A. Yes, sir. Q. And the company had coal dumps in connection with their breakers? A. Yes, sir. Q. Now I want to ask you whether culm dumps were regarded as of any value during any of those years from 1882 to 1886? A. Some companies during those years separated their depletus; they threw it away; the culm and whatever size might be in it below chestnut; then again other collieries separated the slate and rock from the other. Now these culm dumps which contained no rock were considered valuable. Q. I mean where the dumps were thrown in promiscuously with the sulphur and bone and rock and slate and some pea and buckwheat and smaller stuff, when it was all in one dump, were those dumps regarded as of any value during those years? A. Very few, if any. Q. Were there any endeavors around here with which you were familiar during those years where they attempted to utilize those dumps? A. Not that I remember. Q. Isn't it a fact that culm dumps were used during those years in filling, grading, ballasting of tracks of railroads, filling the streets and excavations? A. Yes, sir." [4]

The court charged in part as follows:

[If you find that it is proved that culm was taken by the defendant, then you will inquire whether the plaintiff had any damages. Ordinarily where one man unlawfully enters upon the land of another, there the complaining party is entitled to some damages, although he cannot show that what was done there was any special injury, or what was taken away was of any special value. The law says that for the invasion of a man's right he shall recover damages, even though none have been specially shown. In such cases the court direct the jury, if they find there was a trespass, to award nominal damages if nothing more; that is, six cents, or one dollar, or some other small sum. This, gentlemen, however, does not apply to this proceeding. The plaintiff by his proceeding has placed himself under the act of assembly which provides that the plaintiff shall have damages if any have been proved, and so I say to you that, although there has been a taking here of this culm, unless it is proved that the plaintiff had damages; that it was an injury to him, a deprivation to him of something that was of value to him, if you find there were no damages, then you will find in favor of the defendant, although the culm was taken.]

Verdict and judgment for defendant. Plaintiff appealed.

Errors assigned were (1-4) rulings on evidence, quoting the bill of exceptions; (5) portion of charge as above, quoting it.

The judgment is affirmed.

James H. Torrey, with him John S. Harding and Charles H. Welles for appellant. -- The evidence as to the use of the culm at the time it was taken was inadmissible: East Penna. R. Co. v. Hiester, 40 Pa. 53; Pittsburg & Western R.R. Co. v. Petterson, 107 Pa. 461; Pittsburg, etc., Ry....