Illinois Central Railroad v. LeBlanc

74 Miss. 626

• Court: Mississippi Supreme Court
• Decided: March 15, 1897
• Status: Published

Opinion

Willing, Sp. J.,'

delivered the opinion of the court.

This is an action of trespass, brought in the court below by the appellee to recover of the appellant and ten others who were joined with it as defendants, damages for entering upon the lands of the plaintiff and removing therefrom a quantity of gravel, rock, stone, etc. At the return term of the court, the appellant presented its petition, which was sworn to, and bond for the removal of the cause to the federal court. The petition stated that the railway company was a citizen of the State of Illinois, it being a corporation created under the laws of Illinois, and that the plaintiff was a citizen of' the State of Mississippi, and that the other defendants were citizens of the State of Mississippi, and had been fraudulently joined with the railway company, as defendants, to prevent a removal by it of the cause to the federal court. The action of the court in denying the application is assigned as error.

It is claimed by the appellant that the circuit court ceased to have jurisdiction of the case upon the filing of the petition and bond for removal. That is true, if the petition, taken in connection with the whole record in the case, showed a case that was removable under the acts of congress. Did the petition of appellant, taken in connection with the whole record in this cause show that the appellant had the right to have it removed to the federal court? In Insurance Co. v. Isador Pichner, 95 U. S. R., 183, the court say: “This right of removal is statutory. Before a party can avail himself of it, he must show upon the record that his is a case which comes within the statute. His petition for removal, when filed, become a part of the record, in the cause. It should state facts, which, when taken in connection with such as already appear, entitle him to the transfer. If he fails in this, he has not, in law, shown to the court that it cannot proceed further with the cause. Having once acquired jurisdiction, the court may proceed until it is judicially informed that its power over the cause has been suspended. ’ ’

Counsel for appellant have cited the cases of Canal Co. v. Plymouth Co., 118 U. S. R., 264, and Railway Co. v. Wangelin, 132 U. S. R., 599. The first case was a suit by the canal company, in one of the state courts of California, to enjoin the Plymouth Company and others from polluting a stream of water running into the canal of the canal company, and for damages for what had been done in that way. The Plymouth Company filed a petition to remove the cause to the federal court, on the ground of a diversity of citizenship and that there was a separable controversy between the plaintiff and the Plymouth Company. It stated that there was a separable controversy between it and the plaintiff, and that the other defendants were not necessary or proper parties defendant to the action; that they were merely nominal and formal parties defendant to the suit, and had no interest in the controversy involved, but were sham defendants, sued in the action with the petitioner to prevent the cause being removed by it to the federal court. The court, in holding that the case was improperly removed to the federal court, says: “Upon the face of the complaint, there is in this suit but a single cause of action, and that is the wrongful pollution of the water of the canal by the united action of all the defendants working together. Such being the case, the controversy was not separable for the purpose of removal, even though the defendants answered separately, setting up separate defenses. ... So far as the complaint goes, all the defendants are necessary and proper parties. A j udgment is asked against them all, both for an injunction and money. Hayward and Hudson are admitted by the answer to be officers of the corporation, and Montgomery its superintendent. These persons are all citizens of California, and amenable to process in that state. It is not denied that they are all actively 'engaged in the operations of the company. ... It is possible also that the company may be guilty, and the other defendants not guilty, but the plaintiff, in his complaint, says they are guilty, and that presents the cause of action to be tried. Under these'circumstances, the averments in the petition that the defendants were wrongfully joined to avoid removal, can be of no avail in the circuit court upon a motion to remand, until they are proven, and that, so far as the record discloses, was not attempted.”'

In the other case cited, the court, in deciding that an action brought in a state court against two jointly for a tort cannot be removed by either of them, upon the ground of a separable controversy between the plaintiff and himself, says: ‘ ‘ It is equally well settled that in any case the question whether there is a separate controversy which will warrant a removal, is to be determined by the condition of the record in the state court at the time of filing the petition for removal, independently of the allegations of the petition, or in the affidavit of the petitioner, unless the petitioner both alleges and proves that the defendants were wrongfully made joint defendants for the purpose of preventing a removal into the federal court. ’ ’

As to the suggestion, made in argument, that the Southeast & St. Louis Railway Company was fraudulently joined as a defendant to deprive the Louisville & Nashville Railroad Company of the right of removal, the court says: “It is enough to say that no fraud was alleged in the petition for removal, or pleaded or offered to be proved. ’ ’

The averments in the petition filed in this case for removal, as to the wrongful joinder of its co-defendants, are as follows: “ Your petitioner further shows that the co-defendants of your petitioner are citizens of the State of Mississippi; that the cause of action declared upon in this case is trespass vi et armzs, whereby and wherein your petitioner is charged, together with said co-defendants, with invading the close of the plaintiff and taking up and taking away, for its own use, gravel, sand, earth, etc., from said close. Your petitioner avers that its'co-defendants are common day laborers, not responsible or coercible at law, and were merely the day laborers engaged in the work of taking and removing, etc., under the employment and operatihn of your petitioner, without any claim of right to or interest or benefit in the matter involved; and your petitioner avers that the said plaintiff did join each and every of said co-defendants of your said petitioner in the suit, fraudulently, for the purpose of depriving your petitioner of its right to remove this cause from this court into the circuit court of the United States, ’ ’ etc.

The petition not only fails to show that the co-defendants of the petitioners were wrongfully joined as defendants, but shows that they could be joined. Under the circumstances, a mere general allegation in the petition that the other defendants were fraudulently joined to prevent a removal would not avail. The lower court did not err in denying the application and in proceeding in the cause.

On the trial of the cause, there being no dispute as to plaintiff’s title, the contest was over the measure of damages sustained. The court permitted evidence to go to the jury, over appellant’s objection, (1) as to offers made by one April and Rosenfield to purchase gravel of the plaintiff, and as to the value of the gravel in controversy based on those offers, as testified by the plaintiff himself; (2) as to various sales of gravel made from 1890 to 1896, at the pit, at Brookhaven and in the city of New Orleans; (3) evidence as to the price obtained by street paving contractors in the city of New Orleans under their street paving contracts with the city for work done on the streets, as testified to by Rosenfield, Collom, and others; (4) evidence showing that the railway company had used part of the gravel taken from the pit for ballasting its track, etc.

The objections to the evidence as to the offers made to plaintiff to purchase gravel, and as to the value of the gravel, based thereon, should have been sustained. Railway Co. v. Ryan, 64 Miss., 399.

The testimony of Hoskins as to the price paid for gravel spread by him upon the streets of Brookhaven, was not admissible, there being no evidence as to what it cost to place it on the streets. We think the evidence as to other sales, where the cost of getting it from the pit and on the cars, and of transportation, was shown, was admissible to be considered by the jury . in connection with the other evidence in determining the value of the gravel in question.

“Where the property to be valued cannot be definitely graded, and therefore not susceptible of valuation by a precise market standard, but, being property which is frequently bought and sold, and has, in some sort, a market value, there is more scope for testimony in the proof of value. . . . Value may be shown by evidence of actual sales of other property similar to that in question; and it is competent to prove the value of other like property by which the property in question may be compared. . . . Where there is no market value at a particular place, proof, may be given of the market value, at other places, with the cost of transportation,” etc. Sutherland on Damages, vol. 1, pp. 796, 798, 799.

The evidence as to prices received by New Orleans street contractors was, in substance, as follows: Rosenfield testified: Was president of the Rosetta Gravel Co., of the city of New Orleans; handled and sold gravel; bulk of their gravel came from Rosetta pit, on the Yazoo & Mississippi Valley Railway, 150 miles from New Orleans; some from Illinois Central Railroad, etc.; transportation on their cars cost $1.25 per cubic yard; their gravel was used to pave streets in New Orleans; was paid for at the rate of $1.25 per surface yard, laid down, with five years guaranty to keep streets in order. Collona testified: Was contractor in New Orleans, and associated with Morris Hart, and acted as manager of the Rosetta Gravel Co.; gravel is used in New Orleans to pave streets and ballast street railroads; he handled for Rosetta company 10,000 or 12,000 cars of gravel to pave street railroads (2,000 or 3,000 per year); the company’s pits were at Rosetta and Chatawa; gravel was purchased by the Rosetta company at $16 per car, delivered in New Orleans, and the company received $15, laid down on the streets; Chatawa is 90, and Rosetta 123, and Brookhaven 135 miles from New Orleans; quantity from the different pits not •known; we were paid by the city $1.50 per cubic yard; cost of hauling and handling about sixty-five cents per cubic yard.

The evidence as to the prices received for the work by the street contractors was incompetent, as it failed to furnish sufficient data to enable the jury to deduce the value of the gravel in question, as the profits made by the contractors under their contracts with the city and the amount paid them for guaranteeing the work for five years was included in the amount paid for the work, and was not known.

. As the plaintiff had the right to show any purpose for which the material could be used, it was competent for him to prove that it was used by the railroad company for ballasting its ■track, etc.

The appellant also claims that the court erred in the instructions given for the plaintiff, and in refusing instructions asked by the appellant. The second instruction given for the plaintiff was as follows: “The court instructs the jury for the plaintiff that he is entitled to recover the actual value of the gravel at the time of the taking and conversion by defendants, and, in arriving at such valuation, they may take into consideration the uses to which said material was put, and its adaptability to such uses, and the prices paid therefor; and in arriving at a fair value they may deduct the cost of securing it from the hill and transporting it, and all costs necessary to place it on the market, as shown by the evidence, and such value as the jury may find the gravel was worth they shall assess in their verdict as damages sustained by the plaintiff.”

The court refused several instructions asked by the railroad company, but we only deem it necessary to notice the following: ‘ ‘ The court instructs the jury that the plaintiff can only recover the actual value of the material as it lay in the pit. ’ ’

Formerly there seemed to have been some conflict in the decisions as to the measure of damages where trees had been cut or material taken from the land of another, growing out of the common law forms of action, a different rule sometimes having been applied for the same injury where the action was in trover or replevin instead of trespass. The tendency of the courts has been to look less to form and more to the substantial object of all rights of action, which is to redress the injury by just compensation. The weight of authority, both in England and America, is that where coal or other material has been taken from the land of another under an honest claim of title, or where the trespass was from ignorance and was not wilful, the damages will be confined to the value of the property m situ, and such other damage to the land as the mining may have caused. 5 Am. & Eng. Enc. L., 37; 3 Sedgwick on Damages, sec. 955.

The rule as above stated was adopted by the supreme court of Pennsylvania in Forsyth v. Wells, 41 Pa. St., 291, and by the supreme court of Tennessee in Goal Creek Co. v. Moses, 15 Lea, 300, after a review of all the authorities, both English and American. There does not appear to have been any decision in this state directly announcing a rule for the measure of damages in cases like the one before us. In Heard v. James, 49 Miss., 236, the action was replevin for staves made from timber cut from plaintiff’s land. This court held the trespass to be wilful, and Judge Simrall, in delivering the opinion of the court, took occasion to say that damages in the action of replevin rests much upon the same grounds as trespass, and that the damages to be assessed depended upon the motive which prompted the act of the defendant, whether bona fide or actuated by wilfulness and a disregard of the rights of others, should be considered by the jury. The case of Peterson v. Polk, 67 Miss., 163, was also an action of replevin for staves made from trees cut from the land of the plaintiff, in which the trespass was held to be wilful. The judge who delivered the opinion pronounced as dictum what was said in Heard v. James as to the measure of damages in replevin, and stated that this court should not be held as approving or disapproving the rule announced in that case.

We think the court erred in the second instruction given for the plaintiff in assuming that there was a market demand for the plaintiff’s gravel and in making the market price, less the cost of taking it from the pit and cost of transportation as shown by sales of gravel only, the only rule by which the jury were to determine.the value of the plaintiff’s gravel.

In the case of Omaha Co. v. Tabor, 13 Col., 41, the action was trover for the conversion of ore wrongfully taken from the plaintiff’s mine. The defendants had sold the ore, and the court held the measure of damages to be the value of the ore sold, less the cost of taking it from the mine and cost of transportation. The rule stated in plaintiff’s second instruction would be the correct rule for ascertaining the value of ore or' other material before it was taken from the mine, where there was a sufficient demand for it to give it a market value. In this case Rosenlield testified that gravel could not be shipped to New Orleans and sold like cotton and corn, and that all the gravel used there was furnished by parties who had contracts in advance for its use and sale. Collom stated there was no market price in New Orleans for gravel, but if good gravel was shipped there and offered at a lower price it could have been sold. Mitchell did not know of any price for gravel in New Orleans outside of street paving. The gravel furnished was sent by parties who had contracts for work before shipping. Bartlet testified that five loads would supply the private demand for a year, and that there was no market in blew Orleans for gravel in 1892, 1893, 1894 and 1895. Other witnesses testified to the same effect. Brown, city engineer, did not know of any market price for gravel in New Orleans. Almost all the gravel used was shipped in by companies owning it.

The record of the chancery suit, which terminated with a final decree by this court in LeBlanc v. Illinois Central Railroad Co., 72 Miss., 669, was put in evidence. We think that record shows that the railroad company was setting up an honest claim of title to the lands on which this pit was situated. It was while that contest was going on that this gravel was removed by it. None was removed after the decree was rendered. We think that the plaintiff is only entitled to. recover the value of the gravel before it was taken from the pit. That should have been determined, not from the price received from sales of gravel in small quantities alone, but from the whole evidence. Plaintiff’s second instruction should have been modified and the appellant’s instruction given.

It appears from the evidence that from March to August 17, 1892, the appellee was engaged in loading the cars of the railway company with gravel taken from his pit, under a contract by which he was to be paid by it nine cents per cubic yard. During that time about 1,800 car loads of the gravel in question were taken from the pit by the appellee. It is claimed by the appellant that he is not entitled to recover for the same, under the maxim volenti non fit injuria. The railway company was in possession and was claiming the pit, and appellee was doubtful of the validity of his title as against the claim of the railway company. Under the circumstances he should not be deprived of the right to recover the actual value of the material. Evans v. Miller, 58 Miss., 120. The verdict and judgment in this case, under any view, was not warranted by the evidence, it being so large as to shock the conscience.

Reversed and remanded.