Quinn v. Baldwin Star Coal Co.

• Decision Date: 11 April 1904
• Citation: 19 Colo.App. 497,76 P. 552
• Parties: QUINN et al. v. BALDWIN STAR COAL CO.
• Court: Colorado Court of Appeals

76 P. 552

19 Colo.App. 497

QUINN et al. v. BALDWIN STAR COAL CO.

Court of Appeals of Colorado

April 11, 1904

Appeal from District Court, Gunnison County.

Action by the Baldwin Star Coal Company against Michael Quinn and others. From a judgment for plaintiff, defendants appeal. Reversed.

D.T. Sapp and Brown & Nourse, for appellants.

Sprigg Shackelford and S.D. Crump, for appellee.

GUNTER J.

In November, 1894, one Sprankle filed a coal declaratory statement on the S. 1/2 S.E. 1/4 section 18, township 15 S R. 86 W., and in September, 1895, entered the same as coal land. In October, 1895, he made a warranty deed for the land to one Purrier, who in January, 1896, executed a warranty deed therefor to appellee, the Baldwin Star Coal Company. Patent issued to Sprankle in January, 1896. September 20 1895, appellant Quinn made a coal filing on the N. 1/2 S.E 1/4 said section, township, and range, and September, 1896 entered the same as coal land. Appellee filed a protest against the entry of Quinn before its allowance. September 2, 1896, Sprankle filed a petition in the proper United States land office, asking a correction of the patent issued to him, as to the land therein described, on the ground that the land intended to be entered, and in truth entered, by him, was that covered by Quinn's entry. The proceeding initiated by the petition, to which Quinn was a party, resulted, April 19, 1899, in a decision by the Secretary of the Interior canceling Quinn's entry, and ordering the filing and entry of Sprankle to be amended to conform to the intention of the parties; that is, to embrace the N. 1/2 of the S.E. 1/4, instead of the S. 1/2 of the S.E. 1/4, of said section, township, and range. This amendment related back to the time when the entry of Sprankle was made; that is, to September 30, 1895. Patent in time issued in pursuance of the amended entry, and recited that it was granted in pursuance of the entry of September 30, 1895. September 11, 1896, Quinn, after his entry of the N. 1/2 S.E. 1/4, said section, township, and range, and the issuance of his final receipt therefor, instituted an action against appellee to recover damages for coal mined on the land therein described, and to enjoin appellee from continuing its workings on such land. Notice was given of the hearing of the application for a preliminary writ of injunction. Appellee employed counsel to resist this application, and services were rendered by them in its resistance. The writ was granted September 21, 1896, and thereby appellee enjoined from working the mine pending the writ. This injunctive action, instituted in the district court of Gunnison county, Colo., and subsequently transferred to the Circuit Court of the United States for the District of Colorado, was dismissed by Quinn June 5, 1899. Previous to its dismissal, appellee had employed counsel to move a dissolution of the writ, which counsel performed services of value in preparing such motion; and, before the institution of this action, appellee had paid counsel for such services. July 18, 1899, the present action by appellee was instituted to recover damages on the injunction bond given in above case. Trial was had, resulting in a verdict and judgment for appellee in the sum of $1,500. Therefrom defendants below are here on appeal.

1. It is said error was committed in giving instruction No. 4. This authorized the jury to allow the appellee, as an element of damages, such loss of profits, if any, as the evidence showed it had sustained through the closing of the mine pending the writ. No objection below was made to this instruction. Appellants therefore are not in position to question it. In legal effect, it was an instruction given by consent. Further, if there be error in the instruction, appellants suffered no prejudice from it, as it is clear that the jury allowed no damages whatever on account of a loss of profits sustained through a closing of the mine. The verdict was for $1,500, and it is clear from the evidence it embraced but two items of damage--$1,000 damages from the falling in of the workings of the mine pending the writ, and $500 damages for that sum expended for counsel fees in resisting the issuance of the writ and in preparing the motion to dissolve.

2. The court authorized the jury to allow, as an element of damages reasonable counsel fees expended in resisting the issuance of the preliminary writ, and in efforts to secure its dissolution. Counsel were employed to resist the motion for the preliminary writ, and after its issuance to secure its dissolution. They performed the services for which they were employed, and the undisputed evidence was that they received from appellee therefor the sum of $500, and that such sum was a reasonable fee. The evidence does not apportion such fee between the services performed before the issuance of the writ and those performed thereafter. The services performed after the issuance of the writ consisted in making preparations to file and present the motion to dissolve. Such motion was not filed. Before this was done, plaintiff in that suit dismissed his action, and thereby dissolved the writ. It is said there can be no recovery for counsel fees expended in resisting the issuance of a preliminary writ of injunction, because they were incurred before the giving of the bond and the issuance of the writ. It is further said that counsel fees expended in preparing a motion to dissolve, which motion was not heard--the writ having been dissolved, on motion of plaintiff, before the filing of the motion--cannot be recovered. As stated, the fee of $500 was not apportioned between the services performed before the issuance of the writ and the services performed thereafter; and, if it was error to allow, in the action on the injunction bond, for services performed before the giving of the bond and the issuance of the writ, this entire element of damages--counsel fees--must be rejected, there being no means of knowing how much of the $500 to apportion to the services performed after the issuance of the writ. The extent of the recovery upon the injunction bond is determined by the condition of the bond. The bond, including its condition, is substantially in the terms of our Code, authorizing the issuance of a writ upon the giving of a bond. If the condition of the bond, however, were even broader than that prescribed by the Code, there could be no recovery upon the condition of the bond without the limits of that prescribed by the Code. "But when the condition of the bond is broader than that required by law, while the obligation may be held good to the extent that the condition accords with the statute, there can be no recovery beyond what would have been allowed had the condition been in accordance with the statute." High on Injunctions, vol. 2, § 1622, p. 1221; Menken v. Frank, 57 Miss. 732. Mills' Ann.Code, § 156, provides: "On granting an injunction, the court or judge shall require *** a written undertaking on the part of the party in whose favor an injunction is granted, with one or more sufficient sureties, to the effect that the plaintiff will pay to the party enjoined all damages, not exceeding an amount to be specified, as such party may sustain by reason of the injunction, if the court finally decides that the party in whose favor the injunction was issued was not entitled thereto." "These bonds, being generally prescribed and regulated by statute, differ in different states; their general purpose and object, however, being everywhere the same, viz., to protect defendant from any wrongful interference with his rights, and to reimburse him for all damages and costs incurred by reason of an injunction improperly issued." High on Injunctions (3d Ed.) vol. 2, § 1619, p. 1218. "The liability of obligors on an injunction bond is confined to the damages and costs caused by the injunction, and adjudged on its dissolution." Injunctions & Other Extraordinary Remedies (Spelling) vol. 1, § 931, p. 786. The above Code s...