Raven Red Ash Coal Co. v. Ball

Decision Date11 September 1946
Docket NumberRecord No. 3066.
CourtVirginia Supreme Court
PartiesRAVEN RED ASH COAL COMPANY, INC. v. ESTIL BALL.

1. EASEMENTS — Additional Servitude — Liability of Owner of Dominant Tenement for Damages. — 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.

2. LANDLORD AND TENANT — Remedy for Rent and for Use and Occupation. Section 5519 of the Code of 1942, giving a remedy for the recovery of rent and for use and occupation, presupposes the relation of landlord and tenant.

3. ASSUMPSIT — Nature of Action. — Assumpsit is classified as an action ex contractu as distinguished from an action ex delicto.

4. ASSUMPSIT — Grounds of Action — Express or Implied Contract. — In order to sustain the action of assumpsit 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.

5. ASSUMPSIT — Waiver of Tort. — Where plaintiff has established an express contract or facts and circumstances from which the law will raise an implication of a promise to pay, he may waive the tort and institute his action in assumpsit for money had and received.

6. ASSUMPSIT — Waiver of Tort — Conversion of Personalty. — If a defendant has not parted with personalty but has converted it to his own use, the owner still 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 pay the value of the property at the time of conversion.

7. ASSUMPSIT — Waiver of Tort — Waiver of Claim for Wrongful Taking, Detention and Conversion. — Where a person has illegally seized another's personal property and converted it to his own use, the owner may bring trespass, trover, detinue or assumpsit. By bringing the action of assumpsit, the owner waives all claim for wrongful taking, detention and conversion.

8. ASSUMPSIT — Grounds of Action — Naked Trespass. — Where a naked trespass is committed, whether upon the person or property, assumpsit will not lie.

9. ASSUMPSIT — Waiver of Tort — Implied Promise to Pay Damages. — In the absence of a contractual relationship, the general rule is that where one person derives a benefit from the commission of a tort against the property of another, the law will, at the election of the person injured, imply a contract on the part of the tort-feasor to pay to the person injured a just remuneration for the damages sustained as a consequence of the wrong, and on this contract implied by law general assumpsit lies. But a promise will be implied in such a case only because it will be deemed that it was intended that it should be, or because natural justice requires it in consideration of some benefit received, and where no benefit accrues, or is intended to accrue, to the tort-feasor, the action of assumpsit cannot, as a general rule, be substituted for the proper form of action on the tort.

10. ASSUMPSIT — Waiver of Tort — Duty to Pay Damages Does Not Necessarily Imply Promise to Pay. — The duty to pay damages for tort does not necessarily imply a promise to pay them, and hence a party cannot convert a mere tort action by electing to bring his action on contract.

11. ASSUMPSIT — Waiver of Tort — Diminution of Value of Owner's Property Not the Test. — In determining whether an action of assumpsit will lie for torts to real property, the test is whether the wrongdoer derived any benefit from the wrong done by him and not whether the value of the owner's property is diminished thereby. The gist of the action is to prevent the unjust enrichment of a wrongdoer from the illegal use of another's property and he should be held on an implied promise whether the owner's value is diminished or not.

12. ASSUMPSIT — Use and Occupation — Wrongful Use of Easement — Case at Bar. — In the instant case, an action to recover damages for the use and occupation of an easement across plaintiff's land, plaintiff conceded that defendant exercised its right in transporting coal mined from certain tracts of land but contended that it violated the property right of plaintiff in transporting certain other coal from certain tracts of land not covered by the easement. Defendant's assignment of error presented the question of whether the facts entitled plaintiff to maintain an action of trespass on the case in assumpsit. Illegal transportation of the coal in question across plaintiff's land was intentional, deliberate and repeated from time to time for a period of years.

Held: That defendant had no moral or legal right to enrich itself by the illegal use of plaintiff's property. To limit plaintiff to the recovery of nominal damages for the repeated trespasses would enable defendant, as a trespasser, to obtain a more favorable position than a party contracting for the same right. Natural justice plainly required the law to imply a promise to pay a fair value of the benefits received. Defendant's estate had been enhanced by just that much.

13. EASEMENTS — Wrongful Use of Easements — Amount of Damages — Case at Bar. — In the instant case, an action to recover damages for the use and occupation of an easement across plaintiff's land, plaintiff conceded that defendant exercised its right in transporting coal mined from certain tracts of land but contended that it violated the property right of plaintiff in transporting certain other coal from certain tracts of land not covered by the easement. Defendant's assignment of error raised the question as to what test should be applied to determine the amount of damages. The general manager of defendant company testified that the prevailing rate of payment, or purchase of a right of way for transportation of coal across another's land, was one cent per ton, and that this purchase included the right to construct and maintain a tramway for distances varying up to two and one-half miles; but that where the owner of the easement had already entered upon the land, and had constructed and was maintaining a tramroad for the transportation of coal from certain specified tracts, the purchase price should be much less — a small fraction of a cent per ton. The jury were instructed that they should fix the amount of damages, if any, at such as would fairly compensate plaintiff for the use and occupation of the strip of land in the hauling and transportation of the coal over the same. The jury returned a verdict allowing the plaintiff one cent per ton.

Held: No error. While the evidence on the value of the benefits retained by defendant was not as clear and full as it could have been, and perhaps should have been, the jury had all the facts and circumstances before it and evidently concluded that the value of the benefit to the defendant for the illegal use of the easement should be computed at one cent per ton.

Error to a judgment of the Circuit Court of Russell county. Hon. E. T. Carter, judge presiding.

The opinion states the case.

Crockett & Gillespie, for the plaintiff in error.

S.H. & George C. Sutherland, for the defendant in error.

HUDGINS, J., delivered the opinion of the court.

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...

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