The Birmingham age-herald., 1903-02-25

Ivy Coal and Coke Company vs. Alabama Coal and Coke Company. Appeal from Birmingham City Court.
 This was an action of trover brought by the appellee. the Alabama Coal and Coke company against the appellant, the Ivy Coal and Coke company, to recover damages for the cohversion of certain coal
 The cause was tried by the court with out jury upon an agreed statement of facts, which was as follows: Ut is ad- mitted that plaintiff Is and was at the time the coal was mined the owner of the land described in the complaint. and defendant mined and removed coal there from during the time described in the complaint as follows The total coal mined was 22. 250 tons; that the royalty was worth six (6c) cents a ton for the coal in place; that mining was worth forty (4Oc) cents per ton; that the value of coal, knocked down in mines was forty-hve (45c) cents per ton. That the coal was mined and removed prior to De- oember 6. 1900, from which date interest is to be computed.
 That the defendant mined the 22, 25O tons of coal upon the forty acres with out any knowledge of plaintiffs title to the land, claiming under a lease from the receivers of the Lady Ensley Coal, Iron and Railroad company, and paid them royalty on the coal mined, and the tres- pass was unintentional
 Tt is further agreed that the posses sion by defendant under the lease of the a -I,.D H..
 feet the right of plaintiff to recover coal taken, in this action.
 ''The object and purpose of this agree ment is to submit to the court the ques- tion what damages the plaintiff is en- titled to recover under the complaint for coal taken and removed from the land by defendant as an unintentional trespasser.'
 of the plaintiff for s1O,S53. 66, assessing the value of the coal as Knocked down at 45 cents per ton To the rendition of this judgment the defendant duly except ed. Defendant also excepted to the courts refusal to grant this motion for new trial. The defendant appeals, and assigns each of these rulings as error Mcclellan, C. J.-Acton of trover by the Alabama company against the Ivy company for the mining and conversion by the latter company of coal on or out of the land of the former. The acts of the defendant cutting or Knocking down the mineral. and converting 1t were done in the belief that the land, the coal in it, and consequently the coal after it was severed belonged to 1t. Neither the tres pass nor the conversion was willful or intentional, but each was at most merely inadvertent and we may assume further 41.sz. ,.aI rxrtft tf however so deciding, that the defendant was guilty of no negligence in the prem ises, though it is quite difficult to conceive how one person could go upon and ap- propriate the minerals in a tract of land belonging to another in the mistaken be- lief that the land is hls own without some negligence of inquiry in respect of the true ownership. But there was, as we have said no wllful or intentional wrong, and. as we assume, no negligence on the part of the defendant Upon the case thus stated and assumed the sole question for our consideration is as to the meas ure of the damages the plaintiff is en- titled to recover The plaintiffs posi- tion is that it should be awarded the value of the coal as it lay in the mine after it had cut or knocked down and thereby severed from the realty. The contention of the defendant is that the damages should be measured by the value of the coal in and as a part of the realty, and that the recovery should be for the difference in the value of the land before and after the coal was removed. The former position, that of the plaintiff, fig logical and sound. Trover does not lie for damages to land. This action could not be maintained for the deterioration in the value of plaintiffs land resulting from coal being taken out of 1t. The Gist of the action is the injury the plaintiff suffered by being deprived of coal which had been severed from his land and had become personally. This coal was as much plaintiffs chattel and his property in every sense as If itself had severed it. and the defendant had subsequently taken possession of 1t and converted it; and it is to our minds wholly illogical to say to a plaintiff in such case that the property was wholly his, that it was the same value to him as if he had him. self dug 1t from the earth or purchased 1t from its owner, and that in actions Of trover the whole theory of the law is to give to the owner at least the value of his property that has been converted, yet be- cause the defendant has committed the wrong of digging out this coal his fur ther wrong of converting it to his own use shall operate to deprive the plaintiff of 
 so held however.
 In England, what we hold to be the true rule--that the plaintiff is entitled to the value of the coal immediately upon it's severance with no deduction for the value of defendants labor i'll effecting the sev- erance-was declared in Martin vs Por- ter, M and w., 31 There seems to have been departure from this case in Wood vs. Morewood, 43 E. c. L., 810, but there also seems to have been a reaffirmance of it in Morgan vs. Powell, Adol. and Ellis PTS; and the house of lords adopted the rule of Wood vs. Morewood rather than that of Martin ys. Porter, in the caes>sof Livingstone vs. Rawyards, App. Cas-, 25; but this was on a Scotch appeal, a fact which detracts from the decision as a precedent in the common law action of trover. In this country the doctrine contended for by the defendant was first declared by the Supreme court of Penn sylvania in Forsyth vs. Wells, Al Pa. St. 291 but that case came under criticism and explanation in the subsequent one of Lyon vs. Gormley, 53 Pa. St. 291, from which latter case it seems clear that that court as then constituted would have broadly affirmed the doctrine contrary to that declared by a bare majority of the judges in Forsyth vs. Wells, but for the existence of that case. On the other hand there are many cases, which will be found cited on appellee's brief as reported. which maintain unequivocally the rule that In the action of trover on facts such as we have here, the plaintiff is entitled to recover the value of the coal as it lay in the mine when and after 1t had been severed from the realty; and this is Inc doctrine which has been declared by this court. In the case of White vs. Yawkey,