Stewart v. Colfax Consol. Coal Co.

• Decision Date: 16 May 1910
• Citation: 126 N.W. 449,147 Iowa 548
• Parties: R. M. STEWART v. COLFAX CONSOLIDATED COAL COMPANY, Appellant
• Court: Iowa Supreme Court

126 N.W. 449

147 Iowa 548

R. M. STEWART v. COLFAX CONSOLIDATED COAL COMPANY, Appellant

Supreme Court of Iowa

May 16, 1910

Appeal from Jasper District Court.--HON. BYRON W. PRESTON, Judge.

ACTION to recover damages occasioned to plaintiff by the wrongful act of defendant in mining and appropriating from plaintiff's land the coal under one-quarter of an acre which had been reserved from a sale by plaintiff to defendant's grantor of the coal lying under the tract of land described in said grant, and the additional damage resulting from injury to plaintiff's barn situated upon and supported by the one-fourth acre reserved in said grant. There was a verdict for plaintiff in double damages, under Code, section 2485, in the sum of $ 2,064.50, and from judgment on this verdict defendant appeals, alleging errors in the rulings and instructions of the court relating to the measure of damages. The plaintiff also appeals. The defendant, having first appealed, will be treated as appellant.

Affirmed.

Ryan & Ryan, for appellant.

E. J Salmon and Tripp & Tripp, for appellee.

OPINION

MCCLAIN, J.

In the instrument executed by plaintiff to defendant's grantor conveying the right to the coal underlying a forty-acre tract of land constituting plaintiff's homestead and on which were located the house, barn, and other improvements, occupied by the plaintiff in conducting a farm of two hundred and forty acres of which the forty-acre tract constituted a part, there was a reservation as follows: "Except one-fourth of an acre upon which the grantor's house is now situated, and one-fourth of an acre upon which the grantor's barn is now situated, and also excepting a tract extending ten feet each way from the deep well now used upon said premises." There are provisions in the instrument for the use of portions of the surface of the tract in carrying on mining operations. The right to take coal from under the other portion of the land constituting the two-hundred and forty-acre farm was conveyed to the same grantee under a separate instrument executed a short time before the execution of the instrument in question. The action is to recover damages for mining under the barn, in violation of the reservation of one-fourth of an acre upon which the barn is situated, and the damages asked relate to the wrongful taking of the coal and the damage caused to the barn by the subsidence of the soil resulting from the mining operations. As to the measure of injury for the removal of the coal the court adopted a rule not satisfactory to either party, and plaintiff's cross-appeal may be properly considered in connection with the allegations of error made for defendant in that respect.

I. In the course of the introduction of the evidence for plaintiff testimony of a witness was received, over defendant's objection, as to the value of the entire two-hundred and forty-acre farm, and also as to the value of the forty-acre tract, respectively, before and after the mining out of the coal under the barn, under the contention for plaintiff that, after the coal was mined under the barn, that site was not a suitable site for such purpose, and that there was no other suitable site on the premises. But on a motion to strike out this evidence the court reserved final ruling, and afterwards instructed the jury not to consider as an element of damage the claim that there is no other place on the forty acres or on the two hundred and forty acres suitable for a barn site, and further limited the jury to the consideration of the damages caused in mining out the coal from the quarter acre reserved under the barn and the consequent injury to the barn itself, and he specially told the jury that, although testimony had been introduced during the trial as to different rules for the measure of damages, the jury should be governed by the rules stated to them by the court in its instructions. It is contended for appellant that the error in allowing witnesses to testify as to the value of the whole farm and the forty-acre tract alone prior to the wrongful act of defendant and subsequent thereto was not entirely cured by these instructions; but, on an examination of the record, we are satisfied that if the jury followed the direction of the court, and it must be assumed it did so, no prejudice could have resulted to the defendant from the admission of the evidence referred to, conceding that it was erroneous, or from not more specifically excluding the testimony of certain witnesses. The case is plainly not one for evidence as to the value of either the entire farm or the forty-acre tract alone before and after the wrongful act of defendant in removing the coal from under the barn. Plaintiff had for a valuable consideration sold to defendant's grantor the right to remove the coal from the entire farm, reserving only so far as is necessary for present consideration the coal under the barn. It was not the fault of defendant that other portions of the premises were rendered unsuitable for a barn site by reason of the removal of coal. Estimates of witnesses as to how much less the farm would be worth on account of the destruction of the existing barn site as a suitable place for maintaining a barn would be too remote and speculative to be of any value as a guide to the jury in the allowance of damages. We find no merit in plaintiff's contention that the court erred in not allowing this evidence to go to the jury as a basis on which to determine the damages suffered.

Laying aside the claim that the depreciation in value of the farm should have been considered, we have still to determine a controversy between counsel as to the measure of damages on the general basis on which the court allowed the case to go...