Raven Red Ash Coal Co. Inc v. Ball

• Decision Date: 11 September 1946
• Citation: 185 Va. 534,39 S.E.2d 231
• Parties: RAVEN RED ASH COAL CO., Inc. v. BALL.
• Court: Virginia Supreme Court

39 S.E.2d 231

185 Va. 534

RAVEN RED ASH COAL CO., Inc.

v.BALL.

Supreme Court of Appeals of Virginia.

Sept. 11, 1946.

Error to Circuit Court, Russell County; E. T. Carter, Judge.

Action of trespass on the case in assumpsit by Estil Ball against the Raven Red Ash Coal Company, Incorporated, to recover $5,000 for the use and occupation by defendant of an easement across the plaintiff's land. To review a judgment for plaintiff for $500, the defendant brings error.

Judgment affirmed.

Before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, JJ.

Crockett & Gillespie, of Tazewell, for plaintiff in error.

S. H. & G. C. Sutherland, of Clintwood, for defendant in error.

HUDGINS, Justice.

Plaintiff, Estil Ball, stated, in his notice of motion, that he was entitled to recover $5,000 from the defendant for the use and occupation of an easement across his land. Defendant denied any liability. The trial court entered judgment for plaintiff in the sum of $500 on the verdict returned by the jury. From that judgment, defendant obtained this writ of error.

There is no substantial conflict in the evidence. Plaintiff proved that he is the present owner of approximately 100 acres of land lying in Russell County which was a part of a 265-acre tract formerly owned by Reuben Sparks, and that Reuben Sparks and his wife, by deed dated November 19, 1887, conveyed the coal and mineral rights on the 265-acre tract to Joseph I. Doran and William A. Dick. The deed conveying the mineral rights to Doran and Dick, their heirs and assigns, conveyed an easement expressed in the following language: "The right to pass through, over and upon said tract of land by railway or otherwise to reach any other lands belonging to the said Joseph I. Doran and Wm. A. Dick or those claiming such other lands by, through or under them, for the purpose of digging for, mining, or otherwise securing the coal and other things hereinbefore specified, and removing same from such other land."

It seems that on or about November 19, 1887, Doran and Dick owned approximately 3, 000 acres of land lying in Russell and Tazewell counties, Virginia, estimated to contain nine million tons of coal. By mesne conveyances the Raven Red Ash Coal Company became the lessee of all the coal and mineral rights on and under this 3, 000 acres. Probably 25 years ago the Raven Red Ash Coal Company, under the easement purchased of Reuben Sparks, built a tramway or railroad through and over the 265 acres formerly owned by Sparks, which right of way extends for approximately 2800 feet across the 100 acres of land now owned by plaintiff.

The Raven Red Ash Coal Company acquired coal and mineral rights on the following tracts of land not originally owned by Doran and Dick: 3 ¹/₄ acres now owned by S. T. Newberry and wife, 29 ¹/₂ acres now owned by Henry Bird, 29 ¹/₉ acres now owned by Ronda Blankenship, 17 acres now owned by Will Bird, and another small tract now owned by W. P. Dixon.

The testimony reveals that, during the past five years, defendant transported 49,-016 tons of coal mined from the five small tracts over the tramway erected across plaintiff's land and transported 950, 000 tons of coal mined from lands formerly owned by Doran and Dick. There remains to be mined approximately 8, 000, 000 tons of coal on the tracts formerly owned by Doran and Dick and 180, 000 tons of coal on the other small tracts.

Defendant's six assignments of error present two questions: (1) Whether the facts entitle plaintiff to maintain an action of trespass on the case in assumpsit; and (2) the measure of damages.

Ball concedes that defendant exercised its right in transporting across plaintiff's land the 950, 000 tons of coal, but contends that it violated the property rights of plaintiff in transporting the 49, 016 tons of coal across plaintiff's land to defendant's tipple. This principle was settled by this court in Clayborn v. Camilla, etc., Coal Co., 128 Va. 383, 105 S.E. 117, 15 A.L.R. 946. See Davenport v. Lamson, 21 Pick., Mass., 72; Appleton v. Fullerton, 1 Gray 186; Watts v. C. I. Johnson & Bowman Real Estate Corp., 105 Va. 519, 54 S.E. 317; Moore v. Lackey Mining Co., 215 Ky. 71, 284 S.W. 415, 48 A.L.R. 1402; Henry v. Tennessee Elec. P. Co., 5 Tenn.App. 205.

These cases hold that every use of an easement not necessarily included in the grant is a trespass to realty and renders the owner of the dominant tenement liable in a tort action to the owner of the servient tenement for all damages proven to have resulted therefrom, and, in the absence of proof of special damage, the owner of the servient tenement may recover nominal damages only.

Plaintiff did not prove any specific damage to the realty by the illegal use of the easement, and admitted that he suffered "no more damage other than the exclusion of use during that moment and that's the reason we have sued for use and occupancy."

It thus appears that plaintiff bases his sole ground of recovery on the right to maintain assumpsit for use and occupation. In his brief, plaintiff states: "That plaintiff was entitled to recover for the use of hauling this 49, 016 tons of coal 2, 800 feet over his land has been settled in this state since the case of Clayborn v. Camilla Red Ash Coal Co., 128 Va. 383, 105 S.E. 117, 15 A.L.R. 946, and that he could sue in this form for use and occupation has been held from the beginning of our system of government; although controverted in some states, Sutton v. Mandeville, 1 Munf. 407, 15 Va. 407, 4 Am.Dec. 549; Eppes' Ex'rs v. Cole, 4 Hen & M. 161, 14 Va. 161, 4 Am.Dec. 512, 4 Min.Inst.(3rd Ed.) 164; Code sec. 5519."

The authorities cited do not extend the right to maintain an action of assumpsit as far as the plaintiff claims. In the Clayborn case, supra, it was held that a deed, conveying to a coal company all the coal in or under a specified tract of land " 'with the right to mine and remove' the same, " did not convey to the company the right to use an underground haulway through the tract for transporting coal mined by the company from adjacent tracts, and that such use of the haulway placed an additional burden upon the easement.

Judge Kelly, speaking for the court in discussing this phase of the case, said: "The use of it (the haulway) for any other purpose is a trespass, and the continued and daily use which the company is now making of it is a continued trespass, for which the only adequate remedy is an injunction."

In Eppes v. Cole, supra (decided in 1809 before the enactment of the pertinent provision now found in Code of 1919, sec. 5519), it was held that a landowner could maintain an action of assumpsit where the facts showed that he had permitted defendant to use the property and that defendant had promised to satisfy him for such use and occupation.

The decision in Sutton v. Mandeville, supra, decided in 1810, was controlled by the opinion in Eppes v. Cole, supra, and, in addition, the opinion expressly held that assumpsit for use and occupation lies on an implied as well as an express promise. See Briggs v. Hall, 4 Leigh 484, 31 Va. 484, 26 Am.Dec. 326.

Mr. Minor (4 Minor's Inst, 3d Ed, pp. 164, 165) refers to the cases last cited and says: "It must be observed, that as the action for use and occupation is always founded on the idea of a contract, express or implied, to pay a reasonable compensation for such use, so it has ever been held that, if it appears at the trial that the occupancy of the lands was by a title adverse to that of the plaintiff, it defeated the action, by disproving the existence of any contract."

The only other authority cited by plaintiff to support his contention is section 5519 of the Code of 1919.¹ This entire section presupposes the relation of landlord and tenant. The pertinent provision reads: "A landlord may also, by action, recover (where the agreement is not by deed) a reasonable satisfaction for the use and occupation of lands; * * *." (Italics supplied.)

The provision quoted was taken from the English statute, Geo. II, ch. 19, sec. 14, but, even before the Virginia statute was enacted, this court held, in Eppes v. Cole, supra, that the English "statute was made for the benefit of landlords, and to prevent tenants from putting them to difficulties (after enjoyment of the lands) in recovering their rents under parol demises or agreements; for, before the statute, in actions for the use and occupation, the landlords were continually nonsuited, by the tenants' proving, at the trial, some parol demise, or memorandum in writing amounting to a demise; for, in that case, the landlord ought to have brought an action of debt, and not case, on assumpsit; which was remedied by the statute. That this was the true reason for making the statute, will appear by the cases on the subject, * * *."

Since plaintiff failed to prove that he gave express permission for the additional use of the easement or that defendant promised to pay for such use, it became necessary for the plaintiff to establish facts and circumstances from which the law will imply the promise to pay for use and occupancy.

While the plaintiff has not cited, and we have not found, any controlling Virginia authority on this phase of the case, a short review of the theory and modern development of the action of assumpsit will be helpful in deciding the question.

Assumpsit is classified as an action ex contractu as distinguished from an action ex delicto. Hence, in order to sustain the action, it is necessary for the plaintiff to establish an express contract or facts and circumstances from which the law will raise an implication of a promise to pay. In such a case, a plaintiff may waive the tort and institute his action in assumpsit for money had and received. If the defendant has not parted with the personalty but has converted it to his own use, the ownerstill has a right to waive the tort and proceed upon the theory of an implied contract of sale to the wrongdoer. The contract implied is one to...