United States v. Ute Coal & Coke Co.

• Decision Date: 27 December 1907
• Docket Number: 2,622.
• Citation: 158 F. 20
• Parties: UNITED STATES v. UTE COAL & COKE CO. et al.
• Court: U.S. Court of Appeals — Eighth Circuit

158 F. 20

UNITED STATES v. UTE COAL & COKE CO. et al.

No. 2,622.

United States Court of Appeals, Eighth Circuit.

December 27, 1907

Philips District Judge, dissenting.

Syllabus by the Court

A cause of action for trespass upon land, and for the taking from it asportation and conversion of coal, timber, or other personal property, wherein the only damage alleged is the loss of the value of the personal property converted, is the same in legal effect as a cause of action for the conversion of the personal property.

He who alleges an error in the trial of a cause must establish it by the record or it will be disregarded.

One who unintentionally, and in the honest belief that he is lawfully exercising a right he has, enters upon the property of another, and removes his ore, his coal, his timber, or any other valuable appurtenant to his land, is liable in damages for the value of the ore, timber, or other thing in its original place, and for no more.

But one who willfully and intentionally takes ore, timber, or other property of another, and appropriates it to his own use, must respond to the owner for the full value of the property at the time he converts it, without deduction for the labor bestowed or expense incurred in removing and preparing it for market.

There is a legal presumption that one who takes or converts to his own use the property of another intends so to do, and a jury may lawfully infer that such a wrongdoer had knowledge of the right and title of the owner of the property which he appropriated, and that he intended to convert it to his own use from his reckless disregard of the owner's right and title, unless the presumption is overcome by evidence of his innocence and good faith.

The presumption is that error produces prejudice, and it is only when it is clear beyond doubt that none resulted, or could have resulted, from an erroneous ruling that the judgment may be lawfully affirmed notwithstanding.

The wrongful taking of coal or ore from a mine, or timber from a forest, does not divest the title of the owner, and whoever obtains and disposes of it with knowledge that it was wrongfully taken is liable to the owner for its conversion.

Earl M Cranston (Ernest Knaebel and Ralph Hartzell, on the brief), for plaintiff in error.

L. F. Twitchell (Wilson & McCloskey and Frank C. Goudy, on the brief), for defendants in error.

Before SANBORN and VAN DEVANTER, Circuit Judges, and PHILIPS, District judge.

SANBORN Circuit Judge.

In June, 1902, the United States brought this action against the Ute Coal & Coke Company, a corporation, Lewis C. Jakway, and Frank W. Stubbs, as individuals, and as copartners as Stubbs & Jakway, and Charles A. Mendenhall, Chauncey W. Howser, and Herbert J. Ross for trespass upon certain public lands, and for conversion of coal taken therefrom between January 1, 1897, and October 22, 1901. There were two counts in the complaint, one for entering upon the land, extracting therefrom, carrying away, and converting 210,030 tons of coal of the value of $630,090, and the other for the taking and conversion of 210,030 tons of coal of the value of $630,090. No damage to the land other than the conversion of the coal was alleged, and the proof was that both counts were for the conversion of the same coal. One of the alleged errors in the trial is that the court refused to submit the cause of action set forth in the first count to the jury, and confined their attention to that pleaded in the second count. But there was no error here because the two counts stated the same cause of action. The gist of the cause of action set forth in each was the conversion of the coal, and the only damage claimed in either was the loss of the value of the coal. The averment of trespass upon the land in the first count was mere inducement to the actual cause of action-- the conversion-- and proof of the title to the land, of the trespass, and of the taking was admissible without averments to prove the plaintiff's title to the coal and its conversion. The cause of action for trespass upon land, and for the taking from it and conversion of coal, timber, or other personal property wherein the only damage alleged is the loss of the value of the personal property converted is the same in legal effect as a cause of action for the conversion of the personal property. Stone v. United States, 167 U.S. 178, 182, 17 Sup.Ct. 778, 42 L.Ed. 127; Peyton v. Desmond, 63 C.C.A. 651, 656, 657, 129 F. 1, 6, 7.

The defendants the coal company, Jakway & Stubbs as individuals and as copartners, interposed three defenses: (1) A general denial; (2) that on April 5, 1897, the defendant Mendenhall filed an application in the proper land office to purchase this land under the stone and timber acts (Act June 3, 1878, 20 Stat. 89, c. 151; Act Aug. 4, 1892, 27 Stat. 348, c. 375 (U.S. Comp. St. 1901, p. 1547)); that on January 18, 1898, he made his proof and entry, and obtained his final receiver's receipt for his payment for the land, and remained in possession of it until May 31, 1901; and (3) that on May 31, 1901, Mendenhall's entry was canceled, and Blanche R. Braidon and Cyrus G. Graden applied to purchase the land as chiefly valuable for coal, and contests between them and others over the entry of it have since been pending in the Land Department of the United States. In addition to these defenses the coal company pleaded that the United States obtained a judgment against it on October 24, 1895, for $156.60 for the taking from this land and the conversion of coal between July, 1892, and February 12, 1894. Demurrers were interposed to each of these defenses except the general denial, but there is no record of any ruling upon them. It is assigned as error that the court below reinstated these defenses after demurrers had been sustained to them, but although there is an order in the record that the defenses be reinstated there is no evidence that they had been stricken down or out by any order or decision, and hence no proof of any error here. The burden is on the party who alleges an error to establish it by the record.

The plaintiff replied to these several defenses that it was true that Mendenhall applied for, purchased, and entered the land under the timber and stone acts, but that the land was chiefly valuable for coal; that he knew that fact, and made his application and entry to defraud the plaintiff out of coal land worth $20 an acre by paying $2.50 an acre for it, its price under the timber and stone acts; that the Land Department subsequently so adjudged, and for that reason canceled his entry on May 31, 1901; and that Stubbs and Jakway and the coal company knew that this land was chiefly valuable for coal before and at the time that Mendenhall applied to purchase it, and instigated him to make his application and entry to enable them to obtain the coal from the lands by the fraudulent method pleaded. The reply contained other averments and denials which are irrelevant to the issues of law that it will be necessary to determine in this case. During the trial the plaintiff dismissed the action as against defendants Mendenhall, Howser, and Ross so that their interest in the matter no longer exists.

During the examination of Mendenhall, a witness for the defendant after the plaintiff had rested its case in chief and before the witness had been cross-examined, the court announced that it would not submit to the jury the question whether or not the defendants were liable to the higher measure of damages recoverable for an intentional conversion of personal property, unless something very controlling, that it had overlooked, could be suggested to change its view, and thereupon directed the case to proceed upon that theory; and at the close of the trial it charged the jury that the defendants were not knowingly trespassing on land which they had no right at all to enter, and that the only amount the plaintiff could recover was the difference between the value of the coal on the cars at the mouth of the mine, and the cost of mining it and putting it there. To this and many other rulings exceptions were taken, and the jury returned a verdict against the coal company and in favor of the other defendants. One who unintentionally, and in the honest belief that he is lawfully exercising a right he has, enters upon the property of another, and removes his ore, his coal, his timber, or any other valuable appurtenant to his real estate, is liable in damages for the value of the ore, coal, timber, or other personal property in its original place, and for no more. But one who willfully and intentionally takes ore, timber, or other property of another, and appropriates it to his own use, must respond to the owner for the full value of the property taken at the time of its conversion without any deduction for the labor bestowed or expense incurred in removing and preparing it for market. There is a legal presumption that one who takes or converts to his own use the property of another intends so to do, and a jury may lawfully infer from such taking and conversion and the wrongdoer's reckless disregard of the owner's right and title that he had knowledge of that right and title, and intended to appropriate his property to his own use in the absence of persuasive evidence of his innocence and good faith. Woodenware Company v. United States, 106 U.S. 432, 1 S.Ct. 398, 27 L.Ed. 230; Durant Min. Co. v. Percy Consol. Min. Co., 35 C.C.A. 252, 253, 93 F. 166, 167; United States v. Homestake Min. Co., 54 C.C.A. 303, 304, 117 F. 481, 482; Golden Reward Mining Co. v. Buxton Min. Co., 38 C.C.A. 228, 237, 97 F. 413, 422. If there was no substantial evidence that the defendants knew that the coal which they appropriated belonged to the United...