Dissenting Opinion.
Reinhard, J.Upon a closer examination of the questions involved.in this case, I am firmly convinced that a mistake was made in the original opinion as to several propositions, and that, consequently, a rehearing should be granted. Upon the trial, appellant asked one of its witnesses the following question : “What is the market value of the fee simple of plaintiff’s real estate in block 11, Lamasco, without considering any improvement upon it, and upon the supposition that the coal vein is untouched, and that the coal is still there?” To this question the appellee objected, whereupon the *505appellant’s counsel stated that they offered to show that the total value of this real estate of plaintiff with the coal there and untouched was not more than $3,000, and the offer was made further to show that the value of the same real estate with the coal all mined out was at least $2,900. The court sustained the objection and excluded the evidence, to which ruling the appellant excepted.
I am of the opinion that this ruling constituted reversible error, if the question was properly saved. If the question is not properly presented, I agree there was no available error in this respect, but I cannot agree with the conclusion of the court based upon the assumption that the point was appropriately presented. My reasons for this conclusion are found in the argument and authorities contained in the briefs of appellant’s counsel from which I make the following extracts :
“1. The complaint in each paragraph in addition to damages for conversion of the coal charges that the defendant ‘otherwise injured said premises,’ and claims damages on both grounds.
“2. There was evidence upon which the jury must have assessed damages for injuries to the real estate in addition to the value of the coal taken. The evidence showed that the vein of coal which was taken out from under this land was three feet ten inches, to four feet eight inches in thickness; that the width of the room from which the coal was taken was fifty to sixty feet. Jarvis, a witness for appellee, who had been foreman of the mine, after testifying as to the unusual manner in which the work of mining was done, makes this statement: ‘ A pillar was taken out on the south of this third entry, and the roof came down. The work in the mine on this side was abandoned in June or July, 1890. My son took this pillar out.’ The same *506witness testifies: ‘The coal that is left under block 11 is worth nothing and cannot be mined. ’ The reasons why it could not be mined were also- shown by the appellee: He said that ‘the second, third and fourth east entries were closed up, and were fallen in and filled with dirt,’ etc., and that ‘half or about half of the coal south of this third east entry, which was so closed up, was left here.’
“On this evidence a jury would have been authorized to find that making under a block in a city excavations fifty to sixty feet wide, and of a depth of three feet ten inches, to -four feet eight inches, and the falling in of the roof which happened in consequence of these wide excavations, and the liability of the surface above at some time to settle unequally, would be a greater or less injury to the real estate, and would render its market value less. Presumably a purchaser knowing of such undermining would not be willing to pay as much for this real estate as he otherwise would have done.
“Again, in addition, the effect of mining out part of this coal and leaving the roofs of the rooms and entries to fall in would prevent mining the remainder of the coal, and in this way a part of the .injury done by the trespass to the value of the real estate would be that the remaining coal could not be mined and would be lost to its owner.
“On this evidence the juiy certainly were authorized to find damages for injuries from the trespass to the real estate separate and distinct from the value of the coal taken and converted into personal property, and in addition to the value of the coal so taken.
“3. The case went to the jury on this theory: In stating the issues, in the first instruction, the court calls the attention of the jury to the claim in the first paragraph of the complaint, ‘that the defendant converted *507said coal to its own use, and otherwise injured his premises,’ and that in the second paragraph of the complaint an additional averment was made that the trespass was done purposely and maliciously.
“Again, in instruction 5, the court, following the language of the complaint in this respect, instructed the jury that on the facts assumed in the instruction the defendant would he liable to the plaintiff for the injury done to his property. ‘If the jury should find that the plaintiff was the owner of the real estate in the complaint set forth, and had the possession or right of possession to the same, and that defendant by its duly authorized agents or employes entered upon his premises without leave or license therefor, and took, mined and removed coal therefrom, then the defendant would he guilty of trespass and liable to plaintiff for the injuries done his property. Eor the law protects every man in the lawful and exclusive possession of his property, and all parties interfering therewith are wrong doers and trespassers,’ etc.
“4. It is then clear that the statement in the opinion that ‘ evidence of damages was confined strictly to the ■value of the coal taken’ is a mistake. It is equally clear that the further statement that no effort was made ‘to recover for any injury done to the realty’ is also a mistake.
“The complaint claimed these damages; the evidence made a case for the recovery of such damages; the court in its instruction authorized the assessment of such damages; the attorneys ’for appellee show in their brief that they claimed these damages. The greater stress of their case, both in the court below and in this court, was put upon the additional element of damage, the value of the coal as a chattel when converted, and the rule that obtains in such a case *508and this fact has evidently led this coqrt into its error. It is clear that one of the questions to he determined by the jury was as to the amount of damages for the injuries to the property other than the mere value of the coal taken. Appellant to meet this question offered to show that the market value of the real estate before and after the taking of the coal, and this evidence was excluded, and the exception properly saved. ”
If I correctly understand the position taken in the prevailing opinion on petition for rehearing, it is that because no witness testified or gave any estimate as to the damages to the real estate proper, in dollars and cents, it must be conclusively presumed that the jury found none, and that the large estimate of damages returned in the verdict contains nothing for damages to the land. I do not think this position tenable. We cannot say what may influence a jury with such evidence before it as it had in the present case.
The court did not instruct the jury to find nothing for injury to the land. The appellee was permitted to give evidence which laid the foundation for the recovery of such damages. To say that the appellant must be shut out from showing what the actual damages to the realty were, in such circumstances, is to give the appellee a very unfair advantage, as I view it. In the absence of countervailing or explanatory evidence as to the damages done the real estate, the tendency of the appellee’s evidence upon the subject must have been to divert the minds of the jury from the real issue and to influence their passions and excite' their prejudice against the appellant; that a person who would injure the appellee’s lands, as was here shown, is deserving of having the highest penalty assessed against him, is the most natural impulse of the mind, after hearing such evidence as the appellee gave, and to permit the jury to *509assess the appellee’s damages without giving the appellant the right to show to what extent the land had really been injured, must have been prejudicial to the appellant. Had the appellee expressly abandoned that branch of his case which related to the real estate, or had the jury been instructed to disregard it, the base would be different, but this was not done. On the contrary, the court instructed the jury as above shown, that if they should find 'that plaintiff' was the owner of the real estate as set forth in the complaint, etc., but had entered upon the premises without leave, and mined and removed coal therefrom, then the defendant would be a trespasser and ‘ ‘ liable to the plaintiff for the injuries done his property J’
If the evidence given when considered in connection with this instruction was not.prejudicial to appellant, it must be because the jury disregarded the evidence introduced without being told to do so, a thing we cannot assume.
The appellee introduced his evidence without objection from the appellant as the latter presumably expected to give countervailing or explanatory evidence upon the same subject, but when it offered ' the latter it was denied the opportunity of doing so.
I do not dispute the correctness of the proposition that, 'as a general rule, the appellant must make it appear that the erroneous ruling of which he complains was prejudicial to him. But there are many exceptions to the general rule. Thus where the evidence is conflicting, the exclusion of evidence which is material and competent, and tends to sustain the theory of the party offering it, may be presumed to be error, inasmuch as such party had the right to put forward all proper evidence he was able to secure, and the denial of such right is presumptively prejudicial. Elliott App. Proced., sec*510tion 594. Where competent and material evidence is improperly rejected a presumption arises that the ruling was prejudicial, unless the contrary appears from the record. Benjamin v. McElwaine-Richards Co., 10 Ind. App. 76, and authorities cited.'
Even if this rule were applied in all its strictness, I think there should be a reversal, for the reason that the rejection of this material evidence is at first blush apparently influential in affecting the verdict so as to make it highly probable that the appellant was prejudiced by it.
I must also dissent from so much of the principal opinion on petition for a rehearing as disposes of the conceded error of permitting evidence of the declarations of one Jabez D. Wooley to be given against the, appellant, and the refusal to strike out said evidence.
The opinion holds that the evidence was inadmissible but that its admission was harmless error because the court instructed the jury to measure the damages by the rule which would govern in an unintentional tres-pass.
The opinion of the court proceeds upon the assumption that the evidence was competent and admitted only for the purpose of showing an intentional trespass. In other words, the appellee was permitted, over appellant’s objection, to show facts tending to establish an intentional or malicious trespass, for which they may have given any amount of damage to the real estate, but because the court instructed the jury that the coal taken should be compensated according to its value as a chattel, therefore the conclusion follows that nothing more was awarded the appellee. I cannot concur in this view, but am of the opinion that the admission of the testimony was prima facie prejudicial to appellant. Elliott App. Proced.,section 610, and notes; Memphis, *511etc., Packet Co. v. McCool, 83 Ind. 392; Mays v. Hedges, 79 Ind. 288.
Filed March 4, 1896.In commenting on the alleged error of the trial court in refusing an instruction relating to coal mined under Delaware street and Eleventh avenue, it was said in the former opinion of the court that there was no evidence of any coal being mined there. Of course if there was any such evidence, however slight, it was error to refuse the instruction, for it is not contended that the instruction was improper for any other reason. I regret that I must take issue with the statement in the opinion of the majority that there was no such evidence. The Minto plat shows, as is very correctly stated in the principal opinion on the petition for a rehearing, tliat the entry extended under Eleventh avenue, and if this was the case, the jury should have been left to determine whether coal was in fact taken out from under this avenue or not. That the court knows judicially’ that no coal is mined in the act of making an entry is a position I do not think the court would willingly take. And yet I am convinced that we must take just that position before we can hold that there is no evidence of coal having been taken from under this avenue. Nor will it do to disregard the Minto plat as an item of evidence even if it be true that Minto’s own testimony contradicted the plat in this particular, and, that the appellant’s manager testified contrary to the plat.
The plat was authenticated as being correct and it was for the jury alone to say whether or not it spoke the truth. I cannot agree, therefore, that the court was justified in refusing this instruction.
Eor these reasons I respectfully dissent from the opinion denying a rehearing.