Murray v. Haverty
| Decision Date | 30 September 1873 |
| Citation | 70 Ill. 318,1873 WL 8610 |
| Parties | JOHN MURRAY et al.v.THOMAS HAVERTY et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of LaSalle county; the Hon. EDWIN S. LELAND, Judge, presiding.
This was an action of trespass, by Thomas Haverty and a number of others against the appellants, for breaking and entering the plaintiffs' close, etc. A trial was had, resulting in a verdict of $1100 in favor of the plaintiffs, upon which the court rendered judgment, refusing defendants' motion for a new trial. The essential facts of the case appear in the opinion of the court.
Messrs. ELDRIDGE & LEWIS, for the appellants.
Messrs. DICKEY, BOYLE & RICHOLSON, for the appellees.
The declaration in this case is in trespass, and contains three counts. The first is for breaking the close, digging and carrying away coal; the second is for stripping and uncovering coal in the mines on the premises, whereby the sam were damaged, and the third is a count in trespass de bonis asportatis. Defendants pleaded, first, not guilty, as to the whole declaration; second, liberum tenementum, as to the first and second counts, and third, a license from all the plaintiffs to do the acts complained of. Replications were filed to all these pleas, and upon the issues joined thereon a trial was had.
No evidence whatever was offered under the plea of liberum tenementum, nor was there any offered by plaintiffs that would authorize a recovery on the third count, and it would seem the trial must have been had on the issues joined on the first and third pleas.
It is not controverted defendants dug and removed large quantities of coal from the premises described in the declaration, and hence the principal question is, whether they can justify under the license offered in evidence.
The land upon which the alleged trespasses were committed was owned, at the time, by tenants in common. It was subsequently divided, and the east half set off to plaintiffs, for whose use this suit was brought. Prior to the entry of defendants upon the premises, they had entered into an agreement with Peter Howard, who was a tenant in common with plaintiffs, by which they obtained the privilege to enter and construct a drain across the premises, but below the vein of coal. It was to be for their own benefit, and for the privilege secured they were to pay $200.
The construction of the drain would necessarily require the excavation and removal of large quantities of coal, for which they agreed to pay at the rate of two cents per bushel.
It is insisted, this license is a bar to an action of trespass for anything done by defendants in the execution of the contract.
One difficulty that presents itself is, the proof does not sustain the plea. It is averred defendants entered under the license of the plaintiffs, and issue was joined thereon. The evidence shows the license was obtained from but one of the tenants in common. Hence, the license proven is not as broad as that averred in the pleadings. There is, therefore, no evidence that directly sustains the issue made.
Counsel, however, maintain that defendants can defend against the alleged trespasses, under a license obtained from one of the tenants in common. Waiving any technical objection that might be urged against the form of the plea, under this view of the law, we do not think the...
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