1. TENANT-Damages-Co-Tenant-Accounting.

When a tenant in common has become liable for damages for waste under section 2, chapter 92, Code, by the removal of coal from the premises, the co-tenant injured may waive the tort and require an accounting for money had and received when the coal has been sold by such tenant. (p. 471).

2. TENANT IN COMMON-Lease-Co-Tenant-Royalty.

If a tenant in common takes possession of the premises to the exclusion of his co-tenant and lease the same to third parties for the purpose of the mining and removal of the coal therefrom, at a specified price per ton as royalty for the coal so removed, the co-tenant so excluded may require an accounting to him for his just proportion of such royalty, as the proper measure of damage for such waste. (p. 474).

3. TENANT-Possession-Purchase-Compensation-Interest.

When a tenant so taking possession and leasing the premises for operating the coal, purchases front lands in his own right and not as common property, which are absolutely essential for right of way for the removal of the coal, in accounting to his co-tenant for his proportion of the royalty when the tort has been waived, legal interest on the amount of money invested in the purchase of such front lands is a just compensation for the use thereof. (p. 477).

4. TROVER-Measure of Damage.

The measure of damages in trover is the value of the property and interest thereon from the time of conversion. (p. 477).

Appeal from Circuit Court, Summers County.

Action by W. P. Cecil and others and J. R. Hall and others, respectively, against E. W. Clark and others, trustees of the Flat Top Coal-Land Association. Decree for defendants, and complainants appeal.

Affirmed.

J. S. CLARK and A. W. REYNOLDS, for appellants.

FLOURNOY, PRICE & SMITH, MOLLOHAN & MCCLINTIC, E. W. WILSON, and JOHN OSBORNE, for appellees.

MCWHORTER, JUDGE:

As will appear in 44 W. Va. 659, (30 S. E. 216), the tract of land involved in these cases described as containing eight hundred and fifty acres, was claimed in entirety by the trustese of the Flat Top Coal-Land Association, who had taken possession thereof and leased it to the Elk Horn Coal and Coke Company and the Shamokin Coal and Coke Company, denying the right of plaintiffs to any part or interest therein; that it was there held that the defendants, the said trustees, were tenants in common, entitled to and holding eleven-twentieths thereof, with the plaintiffs, who were entitled to nine-twentieths and the causes remanded for further proceedings to be had therein. Such proceedings were had that on the 27th day of January, 1899, a decree was rendered distributing the royalties to the parties according to their ownership, as decided in said 44 W. Va., from which decree defendants also appealed, and on the 24th day of January, 1900, by this Court, said decree was affirmed. 47 W. Va. 402, (35 S. E. 11). On the 27th of September, 1900, commissioner Lively, to whom the cause had been referred, filed his report, to which report the following exceptions were filed by the plaintiffs:

"Because the said commissioner failed to include in his statement of royalties received by the trustees of the Flat Top CoalLand Association the sum of one thousand one hundred and forty-four dollars and sixty cents paid to them October 25, 1895, as shown by the statement filed with the deposition of G. L. Estabrook, Jr., as exhibit G. L. E., Jr., 'B', page 76 of the printed record on the last appeal in these causes, and failed to charge said trustees with any part of said sum.”

By the trustess, the defendants, "First, Because under the last decision of the Supreme Court of Appeals in this case the matters and figures contained in the said report are irrelevant.

"Second, Because the said commissioner has charged the defendants with large sums, being the royalties received by the defendants on coal mined from the land in controversy, whereas the said defendants are not properly chargeable with the said

royalties or liable to pay the same or any part thereof to the complainants. The complainants are entitled to damages for the waste committed only, the measure of which is the value of the coal in place, which under the circumstances of this case is the purchase price at which the coal land could have been purchased.

"Third, Because the said commissioner in his said report has charged the defendants with a large amount, representing interest on royalties by them, whereas the said defendants are not properly chargeable with any interest thereon.

"Fourth, Because the said commissioner in his said report and in his calculations therein contained, has charged the defendants with interest upon interest to the extent of four thousand two hundred and thirty-six dollars and eighty-one cents.

"Fifth, Because the said commissioner in his said report had adopted an erroneous basis for the calculations of the value to the complainants for the use of the defendants' front lands in connection with the mining operations upon the property in controversy, allowing to the defendants only the interest upon the cost price of the said front lands.

"Sixth, Because the said commissioner in his said report, statement No. 1, has failed to allow the defendants credit for a certain sum of one hundred and eighty-six dollars and forty cents, together with the interest thereon, representing the royalties upon coal mined from lands other than the land in controversy. (See Supplemental Record, page 73.)

"Seventh, Because the said commissioner in his said report, statement No. 2, has failed to allow the defendants credit for a certain sum amounting to one thousand five hundred and twelve dollars and eighty cents, together with the interest thereon, representing royalty upon coal mined from lands other than the land in controversy. (See Supplemental Record, page 70.)

"Ninth, Because the defendants, the trustees of the Flat Top Coal-Land Association, are entitled to be subrogated to all the rights of the representatives and heirs of Manilius Chapman in respect to the judgment of said Manilius Chapman against A. A. Chapman set up in the cause of Bartlett & Co. against said A. A. Chapman, in which the interest of said A. A. Chapman in the land in controversy allowed said defendants credit for the

amount of said judgment against any fund realized in respect to the A. A. Chapman interest in said land.

"Tenth, Because the said trustees are entitled to be subrogated to all the rights of Manilius Chapman in respect to the balance of two thousand and forty-four dollars and twenty-two cents, with interest due thereon, shown by the hotchpot settlement of the estate of Henly Chapman before Commissioner Broderick, filed in this cause, and said Commissioner Lively should have allowed said defendants credit for said sum with its interest as an offset in this case."

By the heirs of A. A. Chapman, deceased, "The heirs of A. A. Chapman, deceased, viz., Susan Chapman, S. J. Chapman, Fanny Steele, Ella C. Orr, W. C. Orr, and A. C. Orr, except to so much of the report of Commissioner Lively filed in this cause on the 27th day of September, 1900, as only charges the defendants E. W. Clark, etc., trustees, the Shamokin Coal and Coke Company and the Elkhorn Coal and Coke Company, with waste at the rate of ten cents per ton on the coal mined and to the allowance of anything for frontage charges.

Because the true rule of accounting for this waste is the value of the coal at the pit mouth.

2. Because a wrong doer is entitled to no compensation for wrong doing.

3. Because the commissioner allows a credit to the defendants above named for the expenses of operating the mines and mining properties since September, 1895."

By W. H. H. Allen: "W. H. H. Allen excepts to the report of Commissioner W. W. Lively filed in this cause on the 20th day of August, 1900, in so far as it reports or may be construed as reporting that the heirs of A. A. Chapman are entitled to any part of the moneys for which may decreed to be paid by Tyler & Doran, trustees, or Clark, trustee, or either of them as such trustee, on account of coal taken from the land in the bill and proceedings mentioned before his purchase of the interests formerly belonging to said Chapman.

"The said Allen objects and excepts to any decree at this time decreeing any part of said fund or money to said heirs on the ground that the ownership of said moneys is now in litigation between him and said heirs in this cause and that the pleadings in respect to said controversy are not now matured and in such

condition that the court can decree and settle such ownership of said money between him and such heirs."

And on the 26th day of October, 1900, when the defendant trustees tendered and asked to file their amended answer and cross bill, to the filing of which plaintiffs objected in writing, which objections were sustained and the filing of said answer and cross bill refused, and on motion of said defendants the court permitted the same to be filed and treated as an affidavit in support of the exceptions of said trustee to said commissioner's report, and it was so accordingly filed, and it being suggested to the court by E. W. Clark, trustee, that Sidney F. Tyler, one of the trustees of the Flat Top Coal-Land Association and one of the defendants herein, had resigned as such trustee and had no further interest in the causes, and that Joseph I. Doran had been appointed a trustee in his place, and also suggested the death of H. M. Bell, a defendant, and one of such trustees, the causes were abated as to said Tyler, trustee Doran was admitted as a defendant in each of said causes which were ordered to proceed against said Doran and E. W. Clark as surviving and present trustees of said Flat Top Coal-Land Association, and the causes were on that day heard upon the papers formerly read; the orders and mandates of the Supreme Court of Appeals; the report of Commissioner Lively, the depositions and papers filed therewith, the exceptions thereto, the said amended answer and cross bill treated as an affidavit as aforesaid, and upon the motion of the trustees to re-commit this cause to a commissioner for the purpose of taking further testimony and ascertaining the amount of the damages to which plaintiffs were entitled on account of waste committed on the land in controversy prior to September 5, 1895, and on motion of said trustee to give them further time to take testimony to show the proper measure of damages, which motions were overruled, and the court also overruled the first, second, third, fifth, eighth, ninth and tenth exceptions of said trustee to the said reoprt of Commissioner Lively and sustained their fourth, sixth and seventh exceptions. Overruled all the exceptions of the heirs of A. A. Chapman, deceased, to said report and sustained the exceptions of plaintiffs and corrected the report accordingly, and confirmed said report as so corrected and amended, except as to that part thereof relating to the special statement made at the instance of A. A.