Douty v. Bird

The opinion of the court was delivered, by

Agnew, J.

— There was no pretence that the trespass of the defendants was committed under any color of title. The objection to the plaintiffs’ recovery was founded wholly on a supposed want of joint possession. In this, we think, there was error. In the first place, there was the positive testimony of Richard Douty, that John B. and William H. Douty were in possession of the land leased of Baumgardner during the time of the alleged trespasses — that they had coal-mines opened and were working them; that both carried on the colliery business there. This proof of possession, corroborated by other witnesses, is not rebutted by the agreement of 31st March 1860 between John B. and William H. Douty. The agreement created an express partnership in the business .of mining and selling coal at the colliery. It is true, the agreement provided, that the right of property and possession of the lease, and of the stock and personal property, should remain absolutely and exclusively the property and chattels of William H. Douty; but this was made subject to an express exception for the necessary purposes of conducting and carrying on of the business of mining and vending coal. The exception carried with it a limited possession, to wit, to the extent necessary to conduct and carry on the mining business. . The title to the lease and personal property, and the legal possession of everything, not necessary to actual mining operations, remained in William II. Douty; but the joint possession was in both in all that was required to effectuate the purpose of the partnership in carrying on mining operations. A trespass which interrupted or destroyed these operations was clearly an injury to both, and gave them a joint right of action for redress; and to this extent the exception in the agreement let John B. into joint possession with William H. Douty. The injury alleged, was one that directly affected the working of the mines, and consequently the joint occupancy of the partners. To enter upon the land they were working, break holes into their mines, and inundate them with water from above, was an act of trespass, clearly directed against their mining operations. So far, therefore, as the acts complained of affected this joint business, thus carried on upon the premises, the plaintiffs were entitled to recover, and the court erred in withdrawing the cause wholly from the jury.

Perhaps the offer contained in the first bill of exceptions was unnecessarily broad, and comprehended more than the plaintiffs might bo permitted to recover as damages, but we think the court ought not to have excluded it altogether. So far as the hands were driven from their work by the overflow of the water from above, it was an interruption caused immediately by the trespass, and to this extent there was a loss of mining operations, which could be proved. Merely speculative profits would not be allowed, but direct losses stand on a different footing. If a miner be driven from his work, the amount of coal produced by his day’s labor is easily computed, and the loss on this, suffered by his employer, is not speculative but real, and is just the difference between the cost of his labor and the actual price of the coal on that day at the mine. This is the case of a wilful tort and not a contract. The defendants are presumed to know that to let down water on a lower mine, and to drown it out, or partially suspend its operations, would be tbe immediate effect of their act. Mining operations embrace the labor of mules as well as of men; so far as this labor is used in actual mining operations, the expense of the mules while actually idle from the influx of water is a loss, which is the legitimate source of reparation in damages. These remarks refer only to a loss immediately connected with the subject of injury, falling within the direct line of consequences, and not to any general or supposed loss collateral to or outside of this line. There was evidence from which a jury might have concluded that the trespasses were malicious as well as wilful. In such a case a court should not be too stringent in holding the rules excluding the evidence as to damage, but should rather wait and instruct the jury as to the true rule to be given upon the whole evidence. At the stage of,the cause when these offers of evidence were made, it would have been proper to hear the evidence, as to what hands were interrupted partially or wholly by the influx of water, how much time they lost, how much mining the plaintiffs were thereby deprived of, and all those facts which would throw light on the actual amount of injury they sustained by the trespass which had been proved. In this we do not include speculative profits, such as were condemned in McKnight v. Ratcliff, 8 Wright 156. In that case, the jury were told that if the mines were rendered entirely useless, the profit that might have been made on the coal would be a fair basis for estimating the damages. This was held to be entirely too vague and difficult of computation, and that the instructions should have been for the actual damage by the delay, loss of time, injury to machinery and the like; in other words, the actual loss as we have stated it, arising from the interruption to the mining operations, caused by the trespass referred to. The other errors need no notice.

Judgment reversed, and a venire faeias.de novo awarded.

Williams, J., was at Nisi Prius during the argument of the preceding three cases.