United Coal Co. v. Canon City Coal Co.

• Decision Date: 03 May 1897
• Parties: UNITED COAL CO. et al. v. CANON CITY COAL CO. et al.
• Court: Colorado Supreme Court

48 P. 1045

24 Colo. 116

UNITED COAL CO. et al. v. CANON CITY COAL CO. et al.

Supreme Court of Colorado

May 3, 1897

Error to district court, Fremont county.

Action by the Cañon City Coal Company and Harriet Ripley against the United Coal Company and the Western Coal Machinery Company. Judgment for plaintiffs, and defendants bring error. Affirmed.

Defendants in error, as plaintiffs below, allege in their complaint that they are the owners of certain coal lands situate in Fremont county, state of Colorado. A part of these lands were owned jointly by plaintiffs, and a part by the plaintiff Harriet Ripley alone; but at the time of the wrongs recited all were under lease to the Cañon City Coal Company, the lease giving the coal company the exclusive right, for a term of 99 years to mine the coal from all the lands, and to sell and dispose of the same when mined. The complaint further alleges that the defendant companies entered upon said lands by means of a shaft, known as the 'Prentiss Shaft,' sunk on lands adjoining, and by underground drifts extracted from the lands of plaintiffs a large amount of coal, and appropriated the same to their own use. It is alleged that the Western Coal Machinery Company, defendant, was mining the coal, under a contract with and for the United Coal Company, for an agreed price per ton. It is further alleged that there are no shafts or other openings on plaintiffs' lands connecting with the coal deposits therein which were being worked by the defendants, and that there is no entry thereto except through the shaft, tunnels, and entries of the defendants. It is also alleged that the defendants have been, and were, at the time of the institution of the action, removing props, pillars timbers, and machinery from its entries and tunnels, for the purpose of permitting and causing the same to fall in and close up, so as to prevent discoveries of the trespasses committed by them upon the coal deposits in plaintiffs' land, and that the prevention of the discovery of such trespasses would be a great and irreparable injury to plaintiffs. It is further alleged that the defendants have not filed any map or plat of their excavations and workings as required by the statute in such case made and provided and that the acts and trespasses of the defendants will cause the plaintiffs irreparable injury unless restrained by the court. Plaintiffs pray that a temporary writ of injunction may issue, restraining and forbidding the defendants, their agents, employés, and attorneys, from going upon and into the lands of plaintiffs, and from mining therein; also from taking or removing any coal therefrom, or props, pillars timbers, or other supports from the entries or rooms that lead or furnish ingress to any workings in the lands of plaintiffs; and also from doing any act whatsoever which will cause the entries, tunnels, or rooms aforesaid to close up, and from removing any machinery or doing any act which will prevent an entrance to and into said lands of plaintiffs through the shaft of defendants,--and that an order be made for an inspection and survey, by some suitable person or persons, of all excavations which have been made by the defendants, or by either of them, in the lands of plaintiffs. An accounting is also asked of the coal mined and taken from plaintiffs' lands, and that the value of the coal so taken be paid into court, subject to apportionment between the plaintiffs as their rights may appear, and for such other and further relief as may appear to be meet and proper in the premises. To this complaint the defendants separately demurred, and, upon these demurrers being overruled by the court, separate answers were filed. In these answers the incorporation of the defendant companies is admitted, and the ownership of the plaintiffs, as alleged in the complaint. All other allegations are denied. Upon these issues the cause was tried to the court without the intervention of a jury. The trial resulted in the following findings: 'Now, on this day, this cause coming on again for final judgment upon the proofs heretofore herein taken, and upon the arguments of counsel for the respective parties already submitted, and the court, being now well and fully advised, doth find generally the issues herein joined in favor of the plaintiff the Cañon City Coal Company, and against the defendants, the United Coal Company and the Western Coal Machinery Company, and specially as follows: (1) That the trespass complained of against both said defendants, and by both of them committed, was so committed by them in a willful and grossly and culpably negligent manner. (2) That plaintiff the Cañon City Coal Company, owing to the character of this suit and absence of averment in the pleadings for any other damages, may recover herein only as for an accounting for the coal actually taken out of its lands and disposed of by defendants, and not for damages done to the ground because of coal, if any, left remaining, in pillars or otherwise, which cannot hereafter be made available, or for damages, if any, done to said lands for any other cause. (3) That the amount of coal actually taken out and disposed of by both defendants from plaintiffs' land was and is thirteen thousand six hundred (13,600) tons, of twenty-four hundred (2,400) pounds to the ton, being a miner's ton, or a total of sixteen thousand three hundred and twenty (16,320) tons, of two thousand (2,000) pounds to the ton, being a commercial ton. (4) That the total amount so taken out and disposed of, fifteen hundred (1,500) tons of twenty-four hundred (2,400) pounds to the ton, or eighteen hundred (1,800) tons of two thousand (2,000) pounds to the ton, were extracts taken out and disposed of by the defendant the United Coal Company alone, and before the other defendant, the Western Coal Machinery Company, had any connection with said property. (5) That the total amount of coal so as aforesaid taken out and disposed of by the defendant the Western Coal Machinery Company, under its contract with the defendant the United Coal Company, extracted, took out, and disposed of twelve thousand one hundred (12,100) miner's tons, or fourteen thousand five hundred and twenty (14,520) commercial tons. (6) The value of said coal at the collar of the shaft is stipulated to have been two dollars and five cents ($2.05) per commercial ton. The measure of damages in this case is the value of the coal at the collar of the shaft, two dollars and five cents ($2.05) per commercial ton, less the cost, twelve cents per ton, of transporting said coal from the point in the mine where broken to the collar of the shaft, making the measure of the damage one dollar and ninety-three cents ($1.93) per commercial ton for each ton extracted, taken out, and disposed of by defendants. (7) That a reduction of twenty (20) per cent. on the value of said coal per commercial ton shall be allowed for loss. (8) That because of the contractual relations existing between the two defendant companies, under which the defendant the Western Coal Machinery Company...