The Mclean County Coal Co. v. Lennon

• Decision Date: 31 January 1879
• Citation: 91 Ill. 561,1879 WL 8447,33 Am.Rep. 64
• Parties: THE MCLEAN COUNTY COAL COMPANYv.JOHN LENNON.
• Court: Illinois Supreme Court

91 Ill. 561

1879 WL 8447 (Ill.)

33 Am.Rep. 64

THE MCLEAN COUNTY COAL COMPANY

v.JOHN LENNON.

Supreme Court of Illinois.

January Term, 1879.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of McLean county; the Hon. JOHN BURNS, Judge, presiding.

Messrs. STEVENSON & EWING, for the appellant.

Messrs. TIPTON & POLLOCK, for the appellee.

Mr. JUSTICE BAKER delivered the opinion of the Court:

This was trover, by John Lennon, the appellee, against appellant, to recover damages for coals taken by it from the land of appellee and converted to its own use, without his consent. The case was tried before a jury, and a verdict was returned in favor of appellee for $259. Judgment was rendered on the verdict, and this appeal was taken.

The principal question involved in the suit is as to the correct rule for the measure of appellee's damages for the coals taken by appellant.

Robertson v. Jones et al. 71 Ill. 405, was trespass for taking coal from a mine. We there said, the plaintiff “has the right to recover the value of the coal after it is dug in the bank; or, he could recover the value of the coal at the mouth of the pit, less the cost of conveying it, after dug, from the mine to the mouth of the pit. This rule is founded in justice, and seems to be sustained by the authorities.”

We afterwards, in the case of McLean County Coal Company v. Long, 81 Ill. 359, applied the same rule for the assessment of damages in an action of trover; holding that in either form of action the plaintiff was entitled to compensation only for the damage he had actually sustained, unless it was a case of trespass calling for vindictive damages. We said, “for the expense and trouble of separating the coal from its kindred layers and making it a chattel, the defendant can not claim to be reimbursed; but the coal had no value as a salable article without being taken from the pit, and any person purchasing the coal in the pit would have deducted from the price the cost of bringing it to the pit's mouth.”

During the trial the circuit court had used this language: “I understand the measure of damages is, the value of the coal at the time of the conversion. I think the measure of damages is, the value of the coal at the mouth of the shaft, less the expense of drawing it up.” We quoted this language, and suggested that if the court had adhered in the instructions to the rule thus announced, it would have conformed to our views of the law and to former decisions of this and other courts. We said, “the court should have told the jury the plaintiff could recover as damages the value of the coal at the mouth of the shaft, less the cost of conveying it from the place where it is dug to the mouth of the shaft. This is, in effect, saying he can recover the value of the coal when it first became a chattel by being severed from the mass and under their control.” We referred to the case of Sturges et al. v. Keith, 57 Ill. 451, and announced the doctrine to be that the damages are to be estimated at the value when the chattel is converted.

In Illinois and St. Louis Railroad & Coal Company v. Ogle, 82 Ill. 627, which was an action of trespass, the court had instructed the jury to allow the plaintiff the value of the coal taken, estimated at the pit mouth, less the cost of carrying it from where it was dug to the pit mouth, allowing the defendant nothing for the digging; and the instruction was held to be correct, and the judgment was affirmed. We there quoted with approval this language of Lord DENMAN, in Morgan v. Powell, 43 Eng. Com. L. 734: “The defendant had no right to be reimbursed for his own unlawful act in procuring the coal, nor can he, properly speaking, bring any charge against the plaintiff for labor expended upon it. But it could have no value as a salable article without being taken from the pit. Any one purchasing it there, would, as of course, have deducted from the price the cost of bringing it to the pit's mouth.” We again stated the rule for the assessment of damages to be, the value of the coal at the mouth of the pit, after deducting the cost of removing it from the place where mined to the pit's mouth.

The instructions of the court given in the case now under consideration are in conformity with the rule announced by us in the cases to which we have referred. The several instructions given inform the jury, in substance, that they should allow the plaintiff the value of the coal at the mouth of the shaft, less the cost of conveying it from where it was dug in the pit to the mouth of the shaft.

It seems the coal in controversy was mined by digging out the clay from under it, when the weight of the top would break it off. This left the coal in large masses, mixed with sulphur, slate, stone and clay. These masses had to be broken up and the sulphur, slate, stone and clay removed before the coal was in a condition to be put on the cars and run out to the shaft.

As we understand the claim of appellant, it is that the expense of breaking up these masses and removing the extraneous substances, and the time and...