MORGAN v. POWELL.

QUEEN'S BENCH. 1842.

[Reported 3 Q. B. 278.]

TRESPASS for breaking and entering plaintiff's coal mine and strata, and digging and getting plaintiff's coal, to wit 20,000 tons, &c., out of the said mine and strata; also for digging and making levels in certain strata, &c., of plaintiff, and carrying away and converting the materials, to wit 10,000 cart loads of coal; and for carrying coals with horses, trams, &c., through the said levels; and by the several means aforesaid damaging the strata, &c., and causing loss of plaintiff's coal, &c. Judgment by default.

An inquiry of damages was executed, before Coleridge, J., at the Monmouthshire Spring assizes, 1841; when it appeared that the plaintiff and defendant were proprietors of adjoining coal mines, the defendant holding two, and the plaintiff a third, partly situate between them. The defendant had, from one of his own mines, entered that of the plaintiff, and had there worked coal belonging to the plaintiff, carried it away, and brought it up to the mouth of his own pit, and had also carried coal from one of his own mines (held under Lord Dynevor) through the workings so made in the plaintiff's mine. Compensation was claimed: 1. For the value of plaintiff's coal worked and taken away by defendant; 2. For the injury which plaintiff's unworked coal had sustained by the mode in which defendant had made the headings or workings; 3. In respect of the coal from Lord Dynevor's mine which defendant had conveyed through the workings of plaintiff's mine. On the last two heads damages were assessed,1 as to which no subsequent question arose. On the first, the plaintiff demanded compensation at the rate per ton which a purchaser would pay for the coal at the pit's mouth, and which was proved to be 5s. 8d. For the defendant it was urged that he ought not to pay more than the value of the coal after deducting the expenses of cutting and bringing it to the pit's mouth, which were estimated at 3s. 10d. per ton. Martin v. Porter, 5 M. & W. 351, was cited for the plaintiff; and the learned judge, considering himself bound by the decision as stated, though he expressed a doubt of its correctness, advised the jury to give their verdict on the principle of the plaintiff's estimate, but reserved leave to move to reduce the damages by the difference between the values at the pit's mouth and

1 18. and 201.

2 By a short-hand writer's note, his Lordship appears to have said: "But for that case I should have thought that the ordinary principle would have prevailed, and that Sir Charles Morgan would be entitled to recover compensation only for the damage he has actually sustained, and that all he would have a right to ask at your hands would have been, to put him in the same position as he would have been if the coal had never been stirred."

in the ground. The jury found their verdict as directed; damages, on this head of claim, £1400.

Sir J. Campbell, Attorney-General, in Easter terin, 1841, obtained a rule to shew cause why the verdict should not be reduced by the amount of the expense of getting the coals and bringing them to the pit's mouth." Cause was shewn in Easter term, 1842.1

Ludlow, Serjt., for the plaintiff.

Sir W. W. Follett, Solicitor-General, Talfourd, Serjt., and Keating, in support of the rule.

Ludlow, Serjt., and R. V. Richards were then called upon to shew

cause.

LORD DENMAN, C. J., in this term (June 9th), delivered the judgment of the court.

4

This was an action for breaking a mine, digging coal, carrying it unlawfully along the plaintiff's adit, and taking and converting it to the defendant's use. Judgment was suffered by default, and a writ of inquiry executed before my brother Coleridge.

The question was, how the value of the coal taken was to be estimated; and the learned judge directed the jury to act on the rule laid down in Martin v. Porter, 5 M. & W. 351. The rule, however, was misstated at the trial; and the calculation has been accordingly taken without making certain allowances which that rule provides for. The direction of the learned judge in that case was, that the plaintiff was entitled to the value of the coal as a chattel, at the time when the defendant began to take it away," that is (as there stated), as soon as it existed as a chattel; which value would be the sale price at the pit's mouth, after deducting the expense of carrying the coals from the place in the mine where they were got to the pit's mouth; and this direction the Court of Exchequer has affirmed. In the present case the rule was taken to be absolute, and without the deduction.

We are of opinion that the rule in Martin v. Porter, 5 M. & W. 351, is correct, and properly applicable to the present case. The jury must give compensation for the pecuniary loss sustained by the plaintiff from the trespass committed in taking his coal, compensation having been separately given for all injury done to the soil by digging, and for the trespass committed in dragging the coal along the plaintiff's adit; and the estimate of that loss depends on the value of the coal when severed; that is, the price at which the plaintiff could have sold it. This plainly was the value of the coal itself at that moment. 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 labour expended upon it. But it could have no value as a saleable 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. Instances may easily be sup

1 May 24. Before Lord Denman, C. J., Patteson, Williams, and Coleridge, JJ.

brover

amount of this charge, which may be ascertained

If who fist her new excution of
look in

must pay

Now,

fay us if

is severed from the r

More

Morgan & Powell

3. The fee in

י.

ngs of coal this particular hatter, then instanty on its who had been the owner of bounds and then in stimating

at Tarsol who had carried way that Chatte, it was constarred and

posed where particular circumstances would vary this mode of calculating the damage; but none such appear here. We do not find that the cost incurred by the defendant in bringing the coal to the pit's mouth is greater by a single farthing than that which the plaintiff must have incurred for the same purpose.

The damages found by the verdict must therefore be reduced by the amount of this charge, which may be ascertained by reference to the judge's note; or there must be a new execution of the writ.

Rule absolute for reduction as above.1

"Now, my Lords, there was a technical rule in the English courts in these matters. When something that was part of the realty (we are talking of coal in this particular case) is severed from the realty and converted into a chattel, then instantly on its becoming a chattel, it becomes the property of the person who had been the owner of the fee in the land whilst it remained a portion of the land; and then in estimating the damages against a person who had carried away that chattel, it was considered and decided that the owner of the fee was to be paid the value of the chattel at the time when it was converted, and it would in fact have been improper, as qualifying his own wrong, to allow the wrongdoer anything for that mischief which he had done, or for that expense which he had incurred in converting the piece of rock into a chattel, which he had no business to do.

"Such was the rule of the common law. Whether or not that was a judicious rule at any time I do not take upon myself to say; but a long while ago (and when I say a long while I mean twenty-five years ago) Mr. Baron Parke put this qualification on it, as far as I am aware for the first time. He said, If however the wrongdoer has taken it perfectly innocently and ignorantly, without any negligence and so forth, and if the jury, in estimating the damages, are convinced of that, then you should consider the mischief that has been really done to the plaintiff who lost it whilst it was part of the rock, and therefore you should not consider its value when it had been turned into a piece of coal after it had been severed from the rock, but you should treat it at what would have been a fair price if the wrongdoer had bought it whilst it was yet a portion of the land as you would buy a coal-field. Wood v. Morewood, 4 Q. B. n. 440. That was the rule to be applied where it was an innocent person that did the wrong; that rule was followed in the case of Jegon v. Vivian, Law Rep. 6 Ch. 742, which has been so much mentioned; it was followed in the Court of Chancery, and, so far as I know, it has never been questioned since, that where there is an innocent wrongdoing the point that is to be made out for the damages is, as was expressed in the minutes of the decree : "The defendants to be charged with the fair value of such coal and other minerals at the same rate as if the mines had been purchased by the defendants at the fair market value of the district;' that I understand to mean as if the mines had been purchased while the minerals were yet part of the soil." Per LORD BLACKBURN, in Livingstone v. Rawyard Coal Co., 5 App. Cas. 25, 39.