Robinson v. Moark-Nemo Consol. Mining Co.

• Decision Date: 12 February 1914
• Citation: 163 S.W. 885,178 Mo. App. 531
• Parties: ROBINSON v. MOARK-NEMO CONSOL. MINING CO. et al.
• Court: Missouri Court of Appeals

163 S.W. 885

178 Mo. App. 531

ROBINSON v. MOARK-NEMO CONSOL. MINING CO. et al.

Springfield Court of Appeals. Missouri.

February 12, 1914.

Rehearing Denied February 24, 1914.

1. TRESPASS (§ 55)—DAMAGES—MITIGATION.

It may be shown in mitigation of damages, though not to justify the trespass, that tailings from a mine thrown on the land of an adjoining owner are valuable, and, having been abandoned by the mine owner, may be sold by the adjoining owner, and that therefore the land can be restored to its original condition by removing them at little or no expense.

2. TRESPASS (§ 50)—MEASURE OF DAMAGES— INJURY TO LAND.

The usual measure of damages for throwing refuse material from a mine on adjoining land is the value of the land with and without such refuse thereon; but, where the cost of removal is less than such difference, such cost of removal is the proper measure of damages.

3. CORPORATIONS (§ 306)—TORTS—PERSONAL LIABILITY OF AGENTS.

Where practically all the tailings from the mining plant of a corporation during a period of two years were cast upon the land of an adjoining owner, making a pile of an average height of 25 feet covering a considerable portion of such land, and the machinery of the mill was so constructed and operated by those having charge of the mining operations as to necessarily and deliberately pile the tailings on such land, the managers of the corporation, who did not claim to be and could not have been ignorant of the wrong that was being perpetrated, and who failed to stop the wrongful act, though requested to do so, were joint tort-feasors, and liable jointly with the corporation for the damages thereby caused, though they did not with their own hands place any of the tailings on such land.

4. CORPORATIONS (§ 303) — OFFICERS AND AGENTS—"MANAGER OF CORPORATION."

The manager of a corporation is the person who has the most general control over its affairs, and who has knowledge of its business and property, and can act in emergencies on his own responsibility, and may be considered as the principal officer; the one to whom the management of the company's affairs has been committed (citing Words and Phrases, vol. 5, p. 4319).

5. TRESPASS (§ 30) — PERSONS LIABLE FOR TRESPASS.

The general rule is that all who direct or wrongfully contribute to the commission of a trespass or assent to its commission are equally liable to the person injured.

Appeal from Circuit Court, Jasper County; David E. Blair, Judge.

Action by W. M. Robinson against the Moark-Nemo Consolidated Mining Company and others. Judgment was rendered for plaintiff against the defendant named, and in favor of the other defendants, and plaintiff appeals. Reversed and remanded, and certified to the Supreme Court.

McReynolds & Halliburton, of Carthage, for appellant. McIndoe & Thurman, of Joplin, for respondents.

FARRINGTON, J.

Plaintiff filed his petition in the circuit court of Jasper county, alleging that the defendant Moark-Nemo Consolidated Mining Company (hereinafter referred to as "the company") is a corporation, and that he is the owner of a tract of land, comprising about two acres, adjoining land on which the company was engaged in mining and cleaning zinc and lead ore. The petition, after alleging the above facts, continues as follows: "That the defendants A. E. Bendelari, Fred Cook, and Charles Phelps are the agents, servants, and employés in charge of said mine, and directing and controlling the mining operations thereon; that said defendants Moark-Nemo Consolidated Mining Company and said Bendelari, Cook, and Phelps have been mining upon the said land for a period of more than two years, and that during all the said period the said defendants have willfully and intentionally, and against the protest of the plaintiff, run, dumped, and placed all of the refuse from the said mine upon the land of plaintiff, so that the whole of plaintiff's said land is covered up by said refuse and tailings, and that, notwithstanding the fact that this plaintiff has forbidden the said defendants to further trespass upon his said land, they have intentionally and willfully continued the said trespassing, and are at this time engaged in such continuous trespassing, upon the plaintiff's said land; that the tailings and refuse from the said mine placed upon the plaintiff's said land is piled up to the height of about 100 feet, by reason of which the plaintiff is deprived entirely of the use of his said land, and is prevented from mining the same; that the said trespass has so continued until all of plaintiff's use of the said land has been destroyed, and the cost and expense to plaintiff of removing the said tailings amount to a large sum of money, to wit, a sum in excess of $5,000; that, notwithstanding the plaintiff's said protest and the said continuous trespassing, defendants are now engaged in continuing their said piling of tailings upon the plaintiff's said land, and are threatening to continue piling their refuse on the plaintiff's said land, and will, unless restrained and enjoined by the order of the court, continue to deprive the plaintiff entirely of the use of his said land. Plaintiff says that his land aforesaid is mining land, and is of great value for mining purposes, but that it has been entirely destroyed for such use, and cannot be so used until said tailings are removed from the said land, for all of which trespass the plaintiff says that he is damaged in the sum of $10,000. Wherefore, the premises considered, plaintiff prays that an injunction issue from this court perpetually enjoining and restraining the said defendants from piling the tailings and refuse from the said mine on the plaintiff's ground, and from further trespassing upon the plaintiff's said ground, and that the court ascertain and determine the amount of the plaintiff's said damages, and that the plaintiff have judgment for said damages in the sum of $10,000."

The answer of the defendant company was a general denial, and a plea by way of mitigation that the tailings had been abandoned by the company, and had a value of $500. The defendants Bendelari and Cook answered by a general denial. Plaintiff filed a reply to the plea of mitigation in the company's answer.

The court, sitting as a trier of the facts, found the issues in favor of the plaintiff and against the company, and assessed damages in the sum of $250, but found the issues in favor of defendants Bendelari and Cook, and judgment was rendered in their favor.

In an opinion heretofore filed in this cause, we affirmed the entire action of the trial court. Appellant (the plaintiff) filed a motion for a rehearing, and, after careful consideration, we have concluded that the trial court committed error in its finding for the defendants Bendelari and Cook, and in entering judgment in their favor. The original opinion is therefore withdrawn, and this filed in its stead.

As to appellant's assignment of error to the effect that the court, under the law and the evidence, allowed an insufficient amount as damages, it is sufficient to say that both plaintiff and defendants were allowed great latitude in the introduction of testimony tending to throw some light on the question of the market value of the land before and after the tailings were placed there. Each also introduced evidence as to the cost of removing the tailings from plaintiff's land. After a careful reading of the record, we are unwilling to hold that the trial judge, as trier of the facts, committed error in the amount of the allowance made.

The company in its answer pleaded, and we think was properly allowed to show, that the tailings could be removed from plaintiff's land at little or no expense to him; in other words, that a contractor would agree to buy the tailings, and remove them from the ground, and pay something for them, and that, as the company had abandoned the tailings, the plaintiff could have them removed without any substantial damage to the real estate.

The usual measure of damages in a case of this kind is the difference in the value of the land with and without the tailings thereon; but, where the cost of removal is less than such difference, such cost of removal is the proper measure of damages.

The testimony showing the value of the tailings on the land would not be competent to justify the trespass; but, on the question as to what it would cost to restore the land to its original condition by removing the tailings, such evidence would certainly be proper. Smith v. Kansas City, 128 Mo. 23, 30 S. W. 314. And, aside from the question of removal, the following authorities uphold the rule that such evidence is admissible under proper pleadings to mitigate the actual damage to the realty: Mize v. Glenn, 38 Mo. App. 98; Clay v. Board, 85 Mo. App. 237; Porter v. North Missouri R. Co., 33 Mo. 128; Lackland v. North Missouri R. Co., 34 Mo. loc. cit. 273; Burtraw v. Clark, 103 Mich. 383, 61 N. W. 552.

We hold that, as to the judgment against the company for $250, there was a correct finding of a trespass committed, and that the sum fixed by the trial judge was not inadequate. Indeed, the defendant company is not complaining as to the correctness of the finding, nor as to the amount fixed, as it took no appeal.

The serious question in this case concerns the action of the court in making a finding and entering a judgment for the defendants Bendelari and Cook under the uncontroverted facts and the law governing the case. The evidence connecting these two defendants with the defendant company and thus with the trespass may be summarized as follows: The manner in which the trespass was committed was by allowing the tailings from the company's mine to be run over from the company's land onto plaintiff's land, across the line about 165 feet, which represented the width of the pile. It was 225 feet in length, and 40 to 50 feet in height at some places, sloping down to the ground so that the average height of the...