The Mclean County Coal Co. v. Long

• Decision Date: 31 January 1876
• Citation: 1876 WL 9993,81 Ill. 359
• Parties: THE MCLEAN COUNTY COAL CO.v.JOHN LONG.
• Court: Illinois Supreme Court

81 Ill. 359

1876 WL 9993 (Ill.)

THE MCLEAN COUNTY COAL CO.

v.JOHN LONG.

Supreme Court of Illinois.

January Term, 1876.

APPEAL from the Circuit Court of McLean county; the Hon. THOMAS F. TIPTON, Judge, presiding.

Messrs. STEVENSON & EWING, for the appellants.

Messrs. BLOOMFIELD, POLLOCK & CAMPBELL, for the appellee.

Mr. JUSTICE BREESE delivered the opinion of the Court:

This was trover, in the McLean circuit court, by John Long, plaintiff, and against the McLean County Coal Company, defendants, to recover damages for the conversion of a quantity of coals taken from the land of plaintiff.

There is no controversy about the fact of taking and converting the coals, the only question being as to the measure of damages. The leading facts are, that defendants had in the summer of 1872 sunk and worked a shaft on their own land, three hundred and thirty-three feet west of the west boundary of plaintiff's lots, to the depth of five hundred and forty-nine feet. At the session of the General Assembly held in 1872, an act was passed providing for the health and safety of persons employed in coal mines, in force July 1, 1872, in which it was provided that an accurate map or plan of the workings of each coal mine, showing, among other things, the general inclination of the strata, together with any material deflections in the workings, should be made, and a copy thereof filed in the recorder's office of the proper county. R. S. 1874, ch. 93, p. 704.

Upon making and filing a map of appellant's mine, appellee discovered for the first time, in 1873, that appellants had worked out of bounds, and, in 1872, taken from his land coals which were found to amount to six hundred and ten tons, from a stratum about two feet thick. When appellee made this discovery, he went to the proper officer of the company and demanded the coal, and on another occasion demanded pay for it. At the time of the demand not a pound of this coal was in possession of the company, it having been sold and disposed of months before. When this demand was made, appellants replied, the land did not belong to them, and that they were responsible to one Cox.

The action was brought to the February term, 1874.

The controversy was upon the measure of damages. Appellants' theory was, the value of the coal when first it became a chattel; that of appellee, its value in the market; which latter theory the court accepted, and gave, of its own motion, the following instruction:

“The court instructs the jury that if they believe, from the evidence, that the defendant wrongfully took and converted to its own use the coal of plaintiff, as alleged in plaintiff's declaration, the jury will find the defendant guilty, and assess the plaintiff's damages at the fair market value of the coal at the time the same was sold and converted by defendant to its own use, and to this amount, so ascertained, the jury may, in their discretion, allow interest at the rate of six per cent per annum from the date of such conversion to the present time.”

The jury found for the plaintiff, and assessed the damages at twelve hundred and eighty-one dollars, for which the court rendered judgment, overruling defendants' motion for a new trial, and the defendants appeal.

When this coal was taken to the mouth of the shaft, it was worth at the shaft two dollars and ten cents per ton, and this the jury allowed, no deduction being made for the cost of getting it to the mouth of the shaft--all evidence offered by appellants on this point being ruled out by the court.

Is the rule given to the jury by which to measure the damages a correct rule, having its foundation in reason and authority?

Common observation and reason inform us that these coals, in their native bed, more than five hundred feet below the surface of the ground, were of no appreciable value; they were made valuable by the labor and expense of appellants; by these they obtained a market value.

How are the authorities upon this question? Martin v. Porter, 5 Meeson and Welsby, 351, is cited by appellee. That was trespass for breaking and entering plaintiff's close, and breaking and entering a certain coal mine under the close, and taking and carrying away the coal, and converting and disposing of it to the use of the defendant.

The plaintiff claimed that he had a right to hold the defendant liable for the value of the coal when gotten and when first it existed as a chattel, without any deduction for the expense of getting it.

PARKE, Baron, before whom the cause was tried, said that the plaintiff would have been entitled, in an action of trover, to the value of the coal as a chattel, either at the pit's mouth or on the canal bank, if the plaintiff had demanded it at either place, and the defendant had converted it, without allowing anything for having worked and brought it there; that not having made such a demand, and the action being trespass, he was entitled to the value of the coal as a chattel at the time when the defendant began to take it away;...