Noble v. the Ill. Cent. R.R. Co..

• Decision Date: 27 September 1884
• Citation: 1884 WL 9978,111 Ill. 437
• Parties: JOHN L. NOBLEv.THE ILLINOIS CENTRAL RAILROAD COMPANY.
• Court: Illinois Supreme Court

111 Ill. 437

1884 WL 9978 (Ill.)

JOHN L. NOBLE

v.THE ILLINOIS CENTRAL RAILROAD COMPANY.

Supreme Court of Illinois.

Filed at Springfield Sept. 27, 1884.

OPINION TEXT STARTS HERE

APPEAL from the Appellate Court for the Third District;--heard in that court on appeal from the Circuit Court of McLean county; the Hon. OWEN T. REEVES, Judge, presiding.

This was an action on the case, in the McLean circuit court, brought by the appellant, against the appellee, to recover the value of a quantity of sand of the plaintiff taken and converted by the defendant to its use, and also to recover for damages done by the defendant to lands described in the declaration, in which lands the plaintiff had an estate in vested remainder. The defendant pleaded the general issue, the license of plaintiff for doing the acts complained of, and several other special pleas, upon which issues were joined.

The land in question was on September 19, 1866, conveyed by the Illinois Central Railroad Company to Harrison Noble, since deceased, (the ancestor of the plaintiff,) by warranty deed, which contained the following reservations, namely: “Excepting a strip of land running through the whole length of said premises, two hundred feet wide, used as a right of way, containing twelve acres; and reserving also, forever, to the said Illinois Central Railroad Company, all the gravel on and in said tract of land and premises, and reserving also the right to dig for gravel on any part of said lands herein before described, with a view of opening gravel pits, one or more; and reserving also to said company all the gravel on said premises, and the right to remove the same; also, the right of way, forever, over said lands and premises, upon which to build one or more railroad tracks to any gravel pit or pits on said premises, and to and from any gravel which may hereafter be discovered thereon, and the right to construct, maintain and operate said railroad tracks with engines and cars thereon, to said gravel pits, for the purpose of removing gravel from said pits, or any of them, over and from said land and premises.” Harrison Noble died seized of the land, by his will giving to his widow a life estate therein, and the remainder to his son, the plaintiff.

That part of the premises to which this suit relates is underlaid with sand and gravel. In places the sand and gravel are intermixed in the proportion of one-third sand to two-thirds gravel. In other places the sand lies in strata, and the gravel likewise in strata, the gravel in places being between strata of sand. The strata of sand extend nearly east and west, and are from four inches to two and a half feet in thickness, and in width from ten to fifty feet. In some places there are large quantities of sand in pockets, or beds, of various dimensions.

The court, at the request of the plaintiff, instructed the jury as follows:

“1. The court instructs the jury, that if they believe, from the evidence, that the defendant conveyed the premises in question to Harrison Noble, reserving the gravel therein, and the right to remove the same, and that Harrison Noble afterwards, by will, gave a life estate in the premises to Mrs. Jane Noble, and the remainder therein to the plaintiff, and that said Harrison Noble is now deceased, then the plaintiff has the right to recover the value of all the sand which may have been shown by the evidence to have been wrongfully removed from said premises by the defendant.

2. And the court instructs the jury, that if the evidence shows that the defendant did remove any considerable quantity of sand from said premises which could have been separated from the gravel by ordinary methods, then, as to such sand, the jury should find for the plaintiff to the extent of its value.

3. And the court further instructs the jury, that the duty of the defendant to separate the sand from the gravel before removing the gravel from the premises, does not depend upon the question of there being a market for all the sand that could be separated from the gravel, but that the fact of ownership of the sand by the plaintiff, if shown by the evidence, gave him the legal right to have the sand left upon the premises, so far as it may have been shown by the evidence to have been practicable to separate and remove the gravel without removing the sand with the gravel.

4. The court instructs the jury, for the plaintiff, that if they believe, from the evidence, that the defendant took from the plaintiff's property, sand, which could have been easily and practically, by the exercise of ordinary care and prudence, separated from the gravel, then, in such case, the defendant had no right to take such sand, and in such case the plaintiff is entitled to recover for the sand so taken, what the same was worth on the market at the pit.

5. The court instructs the jury, in behalf of the plaintiff, that if they believe, from the evidence, that the plaintiff assisted in plowing up the gravel, and that in rendering such assistance he did no more than the defendant had a right to do under the terms of the deed from the defendant to plaintiff's father,--that is, to remove the gravel,--then, in such case, the plaintiff is not prevented from recovering damages on that account.”

The plaintiff asked the following instructions, which the court refused:

“6. The court instructs the jury, that under the deed offered in evidence in this case, the defendant reserved no right to remove any sand from the premises when the sand existed separate and apart from the gravel; and if the evidence shows that any such sand was removed by the defendant from the premises, and converted to its own use, without the license of the plaintiff, the jury should, in such case, find for the plaintiff to the extent of the value of such sand.

7. If the jury believe, from the evidence, that the defendant hired the plaintiff to work for it in and about plowing up the gravel and sand in question, that it did not ask his opinion as to its rights or his consent to its acts, and that it was entirely uninfluenced by the fact that he hired to it to do the work aforesaid, then no license to remove the sand can be implied from such hiring and work, and so far as this is concerned, in such case such conduct constitutes no obstacle to a recovery in this case by the plaintiff.

8. Upon the question of the practicability of separating the sand from the gravel, the court instructs the jury that if the sand and gravel could be separated without resorting to extraordinary and expensive methods, then it was practicable to separate the sand from the gravel; and in such case it was the duty of the defendant to separate the sand from the gravel, and leave the sand upon the premises.

9. The court instructs the jury, that under the deed offered in evidence in this case, the defendant reserved no property right or title in or to the sand intermixed with the gravel in the premises in question, and that the only right it has in respect to such sand arises from necessity, when in fact it is impracticable to remove the gravel without removing it with the sand, and that such right is limited by the necessity which gives rise to it; and if the jury believe, from the evidence, that it was practicable to separate the sand from the gravel before removing the gravel from the premises, then the defendant was bound to so separate it; and if the jury believe, from the evidence, that the defendant removed any sand from said premises without separating it from the gravel, and converted the sand to its own use, and if the jury believe, from the evidence, that it was practicable to have separated such sand from the gravel before removing the same from the premises, then the jury should find for the plaintiff to the extent of the value of such sand so removed.”

And the court, at the instance of the defendant, instructed the jury as follows: “1. The court instructs the jury, for the defendant, that under the deed given in evidence by the plaintiff, from the Illinois Central Railroad Company to Dr. Harrison Noble, under whom the plaintiff claims, the defendant had the right to remove from said land all the gravel thereon suitable for railroad purposes, provided the same was done in a reasonably careful and prudent manner; and in removing said gravel, if sand or other things were so mixed or intermingled with the said gravel that it could not practically be separated therefrom, then defendant, in removing said gravel, had a right to take with it all such sand or other substances as could not be practically separated from the gravel; and if you believe, from the evidence, that the defendant removed said gravel in a reasonably prudent manner, and did not remove from said land any sand that could have been practically separated from said gravel, you will find for the defendant.

2. The law presumes that the Illinois Central Railroad Company, by the reservation in the deed given in evidence by the plaintiff in this case, intended to reserve a valuable right, and all reasonable intendments must be given to this reservation to render such right valuable; and even if the jury believe, from the evidence, that there were some pockets, or veins, or strata, of sand in the pit in controversy, which were removed by the defendant, yet if you further believe, from the evidence, that to separate this from the gravel in the pit would have been so expensive and difficult as to render the said reservation valueless as to all such sand, you will find the defendant not guilty.

3. If you believe, from the evidence, that the railroad company did employ the usual and ordinary means of excavating its gravel and loading it upon its cars, and that it was impracticable and unreasonably expensive for it, in so doing, to save and separate the sand, or any part thereof, from the gravel, you will find the defendant not guilty. 4. If the jury believe, from the evidence, that the plaintiff, knowingly, either by himself or servants,...