§ 562. Removal of ore - Specific cases of trespass. — Many cases are daily arising in mines to subject the operators to liability for injuries from their agent's negligence. They have been repeatedly held liable for the negligent removal of the surface support; 1 in an English case a smelting company was held liable for injuries to trees caused by noxious vapors; 2 again, liability was recognized for damages and injury to stock from a failure to properly fence the opening of a mine; 3 for mining ore upon the land of an adjoining property owner; 4 and numerous actions have been successfully prosecuted for injuries caused by the flooding of mines,5 for overflows from a failure to properly dam flowing streams, and from the breaking of improperly constructed dams; but in California the holder of a mining claim comprising the bed of a canyon, was held to have a right to erect a dam across the same, even though it flooded mining claims upon the bark of the canyon, provided he had the

6

1 Yandes v. Wright, 66 Ind. 319; Horner v. Watson, 79 Pa. 242; Marvin v. Brewster Iron Co., 55 N. Y. 538; Bainbridge Mines, 485; Harris Dam. by Cor., § 959; Williams v. Hay, 12 Cent. Rep. 692; 120 Pa. 485. 2 St. Helen's Smelting Co. v. Tipping, 35 L. J. Q. B. 66; Harris Dam. by Cor. (Vol. 2), § 964.

3 Williams v. Grancott, 4 Best & S. 149; Fechville v. Sanden, 48 L. J. 612; Harris Dam. by Cor., Secs. 523 to 979.

4 Coal Creek M. & M. Co. v. Moses, 15 Lea, 300; Martin v. Porter, 5 Mees. & W. 351; Gilmore v. Hunt, 66 Pa. 321.

5 Robinson v. Black Dia. Coal Co., 50 Cal. 460; Jones v. Robertson (3 West. Rep. 581), 116 Ill. 543; Fulmer's App., 128 Pa. 244; Fraler v. Sears U. Water Co., 12 Cal. 555; Campbell v. Bear River &c. Co., 35 Cal. 679.

6 Hanover Water Co. v. Ashland Iron Co., 84 Pa. 279; Wheating v. Christman, 24 Pa. 298; Hay v. Grenoble, 34 Pa. 9; O'Connor v. Forster, 10 Watts, 418; Jones v. Clark, 42 Cal. 180; Harris Dam. by Cor. (Vol. 2), § 970 et sub.

oldest location, and the party who was flooded was without redress.1

1 Stone v. Bumpus, 46 Cal. 218; see also Stoger v. Ridge Ave. &c. Co. (11 Cent. Rep. 427), 119 Pa. 70. In trespass de bonis asportatis the quantity, quality and value of the mineral or property taken, must be alleged. Mallory v. Thomas, 98 Cal. 644; Playter's Case, 5 Coke, 34; Bertie v. Pickering, 4 Barr. 245. McConnell v. Hardeman, 15 Ark. 151; 21 Enc. Pl. & Pr., p. 821. If the only injury alleged is the unlawful entry and removal of mineral, other injuries to the mine cannot be established, as the ground for each special damage must be alleged. Patchen v. Keeley, 19 Nev. 404; Mallory v. Thomas, 98 Cal. 644. Actual damages are recoverable, in every trespass, regardless of the good intentions of the trespasser. Coffman v. Burkhalter (Ill. 1901), 98 Ill. App. 304. Damages as for willful trespass cannot be recovered against one who simply neglects to have boundaries located, and without wrong intent goes into the land of his neighbor and removes mineral. Durant Min. Co. v. Percy Co., 93 Fed. Rep. 166. It has been held that damages cannot be recovered for oil or gas taken by trespasser, but only for the trespass. Wood Pet. Co. v. W. Va. Trans. Co., 28 W. Va. 210; Keir v. Patterson, 41 Pa. St. 357. But see, contra, Kitchen v. Smith, 101 Pa. St. 452. In trespass, the measure of damage for removal of ore, in the absence of malice, is the value of the mineral in place. Wood v. Morewood, 3 Q. B. 440; Benson Min. Co. v. Alta Min. Co., 145 U. S. 428; Warrior Coal Co. v. Mable Min. Co., 112 Ala. 624; United Coal Co. v. Canon City Co., 24 Colo. 116; Chamberlain v. Collinson, 45 Iowa, 429; Waters v. Stevenson, 13 Nev. 157; Tipping v. Robbins, 71 Wis. 507; 20 Am. & Eng. Enc. Law (2 Ed.) 783; Austin v. Coal Co., 72 Mo. 535.

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CHAPTER IX.

REPLEVIN FOR MINERAL AND MINING PROPERTY.

SECTION 563. Definition at common law.

564. Under the statute.

565. For what it will lie.

566. Same- Buildings and timber.

567. Same-For recapture of mineral.

568. Measure of damages for removal of ore.

569. Same-Title may be incidentally raised
570. Where property has been confused.

571. What possession necessary.

572. Same-Licensee cannot maintain.
573. Action on bond.

Replevin is the § 563. Definition — At common law. remedy for the recovery of the possession of personal property when the same has been unlawfully detained.1 It was, at common law, and still is, "a justicial writ, together with a summons to the defendant, delivered to the sheriff, or other officer, complaining of an unjust taking and detention of goods and chattels, commanding him to deliver back the same to the lawful owner, upon security given by him to make out the injustice of such taking, or It is one else to return the goods and chattels." 2 of the oldest remedies known known to the law, and is spoken of by both Glanville 3 and Bracton.

The writ

1 Cobbey on Rep., Sec. 2, p. 3, and cases cited. See also Cobbey on Rep., § 1, for 2 Morris on Rep., §§ 1 and 2. history of the action. Also Coke Litt., 145b.

3 Beam's Glanv. 294. Glanville wrote the earliest treatise on the laws of England, about 1181, during the reign of Henry II. and furnished copious precedents and writs. Coke Inst. IV. 345.

4 Bracton, 155, 156. A conversion occurs whenever the right of property in the owner is denied him by an appropriation by another. Erskine v. Savage, 96 Me. 57.

1

was originally issuable only by the court at Westminster; but this occasioned such inconvenience that it was early made issuable by the proper tribunals throughout the kingdom, on the complaint of the person whose goods and chattels had been wrongfully detained. When the defendant claimed the property, under the old common law action, by original writ, the sheriff could not make delivery, any more than he could upon the complaint. It was then his duty to return the claim of property on the alias replevin, as a cause why he could not execute the writ. The practice is now different in this respect, however, both in England and this country, and on claim of property by the defendant the cause proceeds to trial just the same, although there may be a redelivery of the property to the defendant, under the statute, before the right of property is determined. But the action at common law would only lie to try the legality of a distress," while the statute intends that it shall furnish a complete remedy for the recovery of any personal property wrongfully taken or detained, together with compensation for the injury.

§ 564. Under the statute. Claims to recover personal property, with or without damages for the withholding thereof," is one of the classifications, under the code, of actions which cannot be joined with other causes of action. This is nothing more nor less than the modern

1 Morris on Rep., p. 56 et sub.

2 Ante, idem.

3 Ante, idem.

4 Statutes different States. R. S. Mo. 1899, § 4463.

5 Morris on Rep., supra; but see Cobbey, § 6, p. 4, where the common

law forms are given.

6 See Statutes different States.

Bliss Code Pleading, § 133, p. 221.

statutory action of replevin, and the same rule holds as to the recovery of damages that obtains in the case of real actions.1 The action can generally be maintained whenever the actions of trespass de bonis asportatis and detinue would lie at common law. The code provision is not so much to authorize the recovery of damages in actions of replevin, as the union, in one proceeding, of causes of action for the recovery of distinct articles of personal property. Where there has been a taking and detention of separate articles, having no connection with each other, it is conceded that the owner may either recover the posession, together with damages for the detention, or recover the possession alone, and prosecute a separate and independent action for the damages. But if the claimant fails to set forth the facts which would entitle him to judgment for damages, he is presumed to have elected to recover the possession alone, and must institute a separate suit before he can recover damages for the detention. In most of the States the action can be maintained in all cases, either for the wrongful taking or the wrongful detention of personal property and with or without damages. In some it lies. only where the property was unlawfully taken and in others only where it is unlawfully detained, while in still another class of States the writ is held to apply only in cases of wrongful distress for rent, as was the case at common law.7

1 Pharis v. Carver, 13 B. Mon. 236; Bliss C. P., supra.

2 Cobbey on Rep., § 6, p. 4.

3 Bliss Code Pleading, §§ 132, 133.

4 Bliss on Code Pleading, § 132.

5 Livingston v. Tanner, 12 Barb. 481; Larned v. Hudson, 57 N. Y. 151. 6 It lies in America, generally, in all cases where chattels have been unlawfully taken. Cobbey, § 19, p. 13.

See Morris on Rep., supra, for a full and detailed description of the different purposes to which the action is subjected. Also Cobbey on