Perdue v. Caswell Creek Coal & Coke Co.

• Citation: 21 S.E. 870,40 W.Va. 372
• Parties: PERDUE v. CASWELL CREEK COAL & COKE CO.
• Decision Date: 03 April 1895
• Court: Supreme Court of West Virginia

21 S.E. 870

40 W.Va. 372

PERDUE v. CASWELL CREEK COAL & COKE CO.

Supreme Court of Appeals of West Virginia.

April 3, 1895

Submitted January 19, 1895.

Syllabus by the Court.

1. In an action of trespass on the case brought for the recovery of damages for mining and removing coal, the defendants tendered a special plea, which averred that, more than three years before the commencemen t of the suit, they entered into and were in peaceable possession of the close and land in the plaintiff's declaration and amended declaration, and each count thereof, mentioned and described claiming title under a lease of the same for the purpose of digging and operating for coal and oil and other minerals and that they have continuously remained in such possession for the space of more than three years next before the commencement of this action, and have dug and bored, and in good faith expended money in such digging, boring, and operating, and this they are ready to verify." On objection, this plea is bad for want of certainty, and for the reason that it does not state under whom the lease mentioned is claimed.

2. Whether plaintiff shall be allowed to give further evidence after defendant's evidence is closed is within the discretion of the trial court; and its exercise will rarely if ever, be the ground of reversal by an appellate court. Clearly, he is entitled to give evidence to rebut that of the defendant.

3. It is error for a court to instruct a jury as to the effect of a deed which is not in evidence before them.

Error to circuit court, Mercer county.

Action by George W. Perdue against John Freeman and Jenkin Jones doing business under the name of the Caswell Creek Coal & Coke Company. Judgment for defendants, and plaintiff brings error. Reversed.

Okey Johnson and A. C. Davidson, for plaintiff in error.

J. S. Clark and A. W. Reynolds, for defendants in error.

ENGLISH, J.

This was an action of trespass on the case brought by George W Perdue against John Freeman and Jenkin Jones, late partners under the firm name and style of the Caswell Creek Coal & Coke Company, in the circuit court of Mercer county, to recover damages for coal mined and removed by said defendants from a certain tract of land containing 19.39 acres situated in said county. The defendants demurred to the declaration and each count, which demurrer was overruled as to the first and second counts, and sustained as to the third count, and the case was remanded to rules to file an amended declaration; but as the action of the court on the demurrer is not relied on as error either in the assignment of errors or in the argument, and we see no objection to the declaration, it is presumed to have been waived. On the 18th day of March, 1891, the defendants tendered a special plea in writing, No. 2 (a plea of license), to the filing of which the plaintiff, by his attorney, objected; but the court overruled said objection, and allowed said plea to be filed, to which plea the plaintiff replied generally. Defendants also tendered a special plea, No. 3, denying the title of the plaintiff to the land in the declaration mentioned, which plea was objected to, and the objection was sustained, and the defendants excepted. The defendants then tendered another special plea, No. 6, denying that the plaintiff was seised and possessed of the close in the declaration mentioned at the time of the commission of the alleged trespass, to which plea the plaintiff also objected. The objection was sustained, and the defendants excepted. The defendants then tendered a special plea, No. 4, which was a plea of liberum tenementum, which was filed, and issue was joined thereon; another special plea, No. 5, which was a general plea of liberum tenementum, alleging title in the "Bluestone Coal Company," in the close mentioned in the declaration and each count thereof, and that the defendants are the lessees thereof, which plea was also objected to, the objection overruled, and the plea was permitted to be filed, the plaintiff replied generally, and issue was thereon joined. The defendants then tendered another plea in writing, marked No. 6, setting up three years as a bar under the statute to the plaintiff's right of action, which plea was objected to. The objection was overruled, and issue was joined thereon. The defendants then offered another special plea, No. 7, which is a plea of the statute of limitations of three years, to which plea the plaintiff objected. The court sustained said objection, and the defendants excepted, and the plaintiff replied specially to the plea of liberum tenementum. On the 6th day of January, 1892, an order of survey was directed. On the 22d day of December, 1892, the death of John Freeman was suggested, and the case was directed to proceed against Jenkin Jones, surviving partner of John Freeman and Jenkin Jones, partners, trading as the Caswell Creek Coal & Coke Company; and the case was submitted to a jury, who, after several adjournments, found a verdict for the defendants, and thereupon the plaintiff moved the court to set aside the verdict, and grant him a new trial, because said verdict was contrary to the law and the evidence, which motion was overruled, and the plaintiff excepted. Said plaintiff also moved in arrest of judgment, which motion was overruled, and the plaintiff excepted, and judgment was rendered for the defendants, and the plaintiff obtained this writ of error.

The first error assigned and relied on by the plaintiff in error is as to the action of the court in allowing, against the objection of the plaintiff, pleas Nos. 2, 4, 5, and 6 to be filed. In argument, however, counsel for the plaintiff in error do not insist on their objection to the action of the court in overruling their objection to any of the pleas tendered by the defendants, with the exception of plea No. 6 which plea is in these words: "And the defendants, for further plea in this behalf, say that the plaintiff in his action against them ought not to have and maintain, because they say that more than three years before the commencement of this suit they entered and were in peaceable possession of the close and land in the plaintiff's declaration and amended declaration, and each count thereof, mentioned and described, claiming title under a lease of the same for the purpose of digging and operating for coal and oil and other minerals, and that they have continuously remained in such possession for the space of more than three years next before the commencement of this action, and have dug and bored for and in good faith expended money in such digging, boring, and operating, and this they are ready to verify." Now, while it is true that this plea is substantially in the language of the statute under which the defendants are seeking to shield themselves, the question is whether it is sufficient to give the plaintiff notice of the true character of their defense. To merely say that the defendants are in possession under a lease gives the plaintiff no information as to the party under whom they claim as landlord, so that, if the plaintiff should wish to reply specially to said plea, he is precluded from so doing by reason of the fact that the lease is not sufficiently described in the plea to enable him to determine whether it constitutes a valid defense or not, or whether it should be met by a general or special replication. And, Steph. Pl. p. 355, § 183, under the heading "The Pleadings must Show Authority," states the rule thus: "In general, when a party has occasion to justify under a writ, warrant, precept, or any other authority whatever, he must set it forth particularly in his pleading." Co. Litt. 283, says: "Regularly, whensoever a man both anything by force of a warrant or authority, he must plead it." And on page 342 the same author says: "When, in pleading, any right or authority is set up in respect of property, personal or real, some title to that property must, of course, be alleged in the party or in some other person from whom he derives his authority." And the same author, on page 347, § 176, says: "With respect to particular estates, the general rule is that the commencement of particular estates must be shown. If, therefore, a party sets up in his own favor an estate tail, an estate for life, a term of years, or a tenancy at will, he must show the derivation of that title from its commencement, -- that is, from the last seisin in fee simple; and, if derived by alienation or conveyance, the substance and effect of such conveyance should be precisely set forth." Again, we find the law stated in 6 Rob. Prac. p. 669. In speaking of a case in 2 Salk. 642, the author says: "The case, however, in Salkeld, settled that it was sufficient for a man to justify upon his possession against a wrongdoer; but it does not go to the length of showing that such a justification is good as against a person who has the title to the land, and who makes an entry in pursuance of that title. When the justification is under the right of another person, there should be an allegation of authority from the principal under whose right the act complained of was committed. Thus, if the defendant justifies breaking a close, on the ground that it is the freehold of another, he is bound to state that he did so enter by the command and as the servant of the owner of the close; and so it is in similar cases, for non constat that the party entitled would have ever insisted on his right, and there can be no reason, if he thinks proper to waive it, why a stranger should justify himself in standing in his place." That this plea is defective for lack of certainty is manifest for the following reason: Suppose the plaintiff desired to reply specially thereto, the plea in its present form does not afford...