PARDEE, Circuit Judge
(after stating the facts as above). The assignments of error, all insisted upon in this case, cover the propositions :
[1] First. That the court erred in refusing to give the general affirmative charge requested by the defendant. This is based on the proposition that the suit was brought by the three persons joining, to wit, Augustine Meaher and Plenry Hall Clarke, individually, and Henry Hall and Norbome R. Clarke,-as executors and trustees under the will of G. Clifton Clarke, deceased, and that under the proof in the case Henry Hall Clarke, individually, had no interest in the subject-matter of the suit, and the law is thoroughly settled in both the state and federal courts and in all character of cases that all plaintiffs to an action must be competent to sue or the action cannot be maintained, and that if one of several joint plaintiffs is not entitled to recover then none can.
[540]*540This proposition seems to be well founded. We do not find under the proof that Henry Hall Clarke had any individual ownership in the property claimed to have been damaged, and the law claimed to apply seems well settled. Prestwood v. McGowin, 128 Ala. 267, 29 South. 386, 86 Am. St. Rep. 136.
[2] Second. That the court erred in refusing to charge the jury that if they believed from the evidence that Augustine Meaher, one of the parties plaintiff, gave the defendant permission or-authority to dig and remove any of the clay or earth in question, then they cannot award the plaintiffs any damages for the digging and removal of clay or earth covered by such permission or authority, on the ground that, where several who are cotenants sue'to recover damages to their estate, the plea that sets up that the damages were by the consent or/direction of one of the plaintiffs presents good defense to the action. The plaintiff wbo consented to the action could not recover, and all persons suing for the same action must be entitled to recover, or. none can.
There was evidence sufficient to go to the jury that Meaher, one of the cotenants suing, consented to the removal of the earth sued for, and the law is plain. Lowery v. Rowland et al., 104 Ala. 420, 16 South. 88. As on a.- reversal a new trial may be had, in which the evidence may be different in relation to both foregoing propositions, we take up the main and controlling question in the case, which is as to the proper rule of damages on the theory that the plaintiffs below are entitled to recover. Said plaintiffs sued for the conversion of certain clay and earth taken by the defendants from the Montgomery & Alabama Grand Trunk Railroad right of way, contending that it became, as soon as severed, merchantable property belonging to them as owners of the fee, for which they are entitled to recover, as for any merchantable commodity, like coal, timber, gravel, or building sand, its full value at any place to which it is finally removed or used.
On the other hand, it is contended that the clay and earth actually excavated and -afterwards. removed from the right of way had no marketable value as a commodity, and got none except from excavating and hauling for a special purpose, and then only was valued at the cost of excavating and hauling, and that the true rule of recovery was the damage to the realty by removing the same, or, at most, the value of the clay and earth at the place and time it was excavated. The defendants below also contended, to the same effect, that if this clay and earth was wrongfully taken from the plaintiffs’ property through mistake, or with the honest belief that it was actually within its legal rights in so doing, then the measure of damages was the value of the earth so taken as it rested in its original place before the digging; and there was evidence tending to show that in taking the said clay and earth the defendant acted honestly in the belief that it was fully within its rights.
As to the character and value of the excavated earth removed by the defendant:
“Engineer Nicol testified tliat: ‘Tiie land up there in which this cut is made! is the ordinary pine land in the Mobile plateau. It is the ordinary material found throughout Mobile county on the elevated division.’ Engineer Buckley [541]*541testified: ‘I call the soil there sandy clay; the country looks open land to i me; it has been cut over.’ Engineer Towle testified: ‘The country up there where this cut was made is piney woods.’ As we calculate it, the area dug over by the defendant aggregated 3.7 acres.”
“Mr. Cochrane said: ‘The Southern brought it there and dumped it on the track, and we paid for the service, whatever that was. In that arrangement or contract nothing was paid specifically for the dirt. I had an agreement to pay so much for the steam shovel, locomotive, cars, and train crew, and that was the basis on which I paid them, by the day. In that agreement there was no amount of money to be paid for each cubic yard of dirt; it was for the service, transportation, and equipment, payment for the laborers, workmen, engineer, etc.’
“The witness Sims said: ‘The stuff that was brought down here was clay; we call it pipe clay; strip of pipe clay in it. I do not know anything it was good for except filling, and (if?) you cannot get anything better; it will answer for filling when you can cover it up with better material. It has to be put down,, and has to be covered with -something else, because the rain affects it; it gets mushy and sloppy; we call it churning; it is sticky. You have to confine it and shelter it with some other material. I have never noticed during my connection with the road any kind of this material brought in by train to Mobile by dealers in road material, gravel, and sand. There is nobody to my knowledge engaged in getting out this kind of material up there and sending it to Mobile for sale. I have never seen any brought to Mobile. I cannot say what it is worth there immediately after it is dug out of the soil. I have never heard of any value being placed on that kind of material.’
“The witness Hancock said: ‘There was no market for dirt in Mobile. I mean, there was no market for it, such as there is for sand and gravel and such as that.’
“The witness Ennis said: ‘There wasn’t any market value at that time in Mobile for stuff of that character.’
“The witness Eadcliff said: ‘The dirt is always worth something. You would have to buy it or own it. There is no general market on any of this dirt. It is all figured on contracts; when a man wants it, he wants it bad; it depends on the contract. If they don’t want it, .you can’t get rid of it at all. We never mine any of it, unless we have a contract. You can’t bring it down here and wait for a market.’ ”
During the trial the defendant offered evidence to show the value of the lands in the. immediate neighborhood of the excavations complained of, and on objections of immateriality and irrelevance the same was excluded by the court and exception duly taken. The record shows that the court charged the jury orally, to which some exceptions, not material to mention here, were noted, whereupon the plaintiff requested in writing the following charge:
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PARDEE, Circuit Judge
(after stating the facts as above). The assignments of error, all insisted upon in this case, cover the propositions :
[1] First. That the court erred in refusing to give the general affirmative charge requested by the defendant. This is based on the proposition that the suit was brought by the three persons joining, to wit, Augustine Meaher and Plenry Hall Clarke, individually, and Henry Hall and Norbome R. Clarke,-as executors and trustees under the will of G. Clifton Clarke, deceased, and that under the proof in the case Henry Hall Clarke, individually, had no interest in the subject-matter of the suit, and the law is thoroughly settled in both the state and federal courts and in all character of cases that all plaintiffs to an action must be competent to sue or the action cannot be maintained, and that if one of several joint plaintiffs is not entitled to recover then none can.
[540]*540This proposition seems to be well founded. We do not find under the proof that Henry Hall Clarke had any individual ownership in the property claimed to have been damaged, and the law claimed to apply seems well settled. Prestwood v. McGowin, 128 Ala. 267, 29 South. 386, 86 Am. St. Rep. 136.
[2] Second. That the court erred in refusing to charge the jury that if they believed from the evidence that Augustine Meaher, one of the parties plaintiff, gave the defendant permission or-authority to dig and remove any of the clay or earth in question, then they cannot award the plaintiffs any damages for the digging and removal of clay or earth covered by such permission or authority, on the ground that, where several who are cotenants sue'to recover damages to their estate, the plea that sets up that the damages were by the consent or/direction of one of the plaintiffs presents good defense to the action. The plaintiff wbo consented to the action could not recover, and all persons suing for the same action must be entitled to recover, or. none can.
There was evidence sufficient to go to the jury that Meaher, one of the cotenants suing, consented to the removal of the earth sued for, and the law is plain. Lowery v. Rowland et al., 104 Ala. 420, 16 South. 88. As on a.- reversal a new trial may be had, in which the evidence may be different in relation to both foregoing propositions, we take up the main and controlling question in the case, which is as to the proper rule of damages on the theory that the plaintiffs below are entitled to recover. Said plaintiffs sued for the conversion of certain clay and earth taken by the defendants from the Montgomery & Alabama Grand Trunk Railroad right of way, contending that it became, as soon as severed, merchantable property belonging to them as owners of the fee, for which they are entitled to recover, as for any merchantable commodity, like coal, timber, gravel, or building sand, its full value at any place to which it is finally removed or used.
On the other hand, it is contended that the clay and earth actually excavated and -afterwards. removed from the right of way had no marketable value as a commodity, and got none except from excavating and hauling for a special purpose, and then only was valued at the cost of excavating and hauling, and that the true rule of recovery was the damage to the realty by removing the same, or, at most, the value of the clay and earth at the place and time it was excavated. The defendants below also contended, to the same effect, that if this clay and earth was wrongfully taken from the plaintiffs’ property through mistake, or with the honest belief that it was actually within its legal rights in so doing, then the measure of damages was the value of the earth so taken as it rested in its original place before the digging; and there was evidence tending to show that in taking the said clay and earth the defendant acted honestly in the belief that it was fully within its rights.
As to the character and value of the excavated earth removed by the defendant:
“Engineer Nicol testified tliat: ‘Tiie land up there in which this cut is made! is the ordinary pine land in the Mobile plateau. It is the ordinary material found throughout Mobile county on the elevated division.’ Engineer Buckley [541]*541testified: ‘I call the soil there sandy clay; the country looks open land to i me; it has been cut over.’ Engineer Towle testified: ‘The country up there where this cut was made is piney woods.’ As we calculate it, the area dug over by the defendant aggregated 3.7 acres.”
“Mr. Cochrane said: ‘The Southern brought it there and dumped it on the track, and we paid for the service, whatever that was. In that arrangement or contract nothing was paid specifically for the dirt. I had an agreement to pay so much for the steam shovel, locomotive, cars, and train crew, and that was the basis on which I paid them, by the day. In that agreement there was no amount of money to be paid for each cubic yard of dirt; it was for the service, transportation, and equipment, payment for the laborers, workmen, engineer, etc.’
“The witness Sims said: ‘The stuff that was brought down here was clay; we call it pipe clay; strip of pipe clay in it. I do not know anything it was good for except filling, and (if?) you cannot get anything better; it will answer for filling when you can cover it up with better material. It has to be put down,, and has to be covered with -something else, because the rain affects it; it gets mushy and sloppy; we call it churning; it is sticky. You have to confine it and shelter it with some other material. I have never noticed during my connection with the road any kind of this material brought in by train to Mobile by dealers in road material, gravel, and sand. There is nobody to my knowledge engaged in getting out this kind of material up there and sending it to Mobile for sale. I have never seen any brought to Mobile. I cannot say what it is worth there immediately after it is dug out of the soil. I have never heard of any value being placed on that kind of material.’
“The witness Hancock said: ‘There was no market for dirt in Mobile. I mean, there was no market for it, such as there is for sand and gravel and such as that.’
“The witness Ennis said: ‘There wasn’t any market value at that time in Mobile for stuff of that character.’
“The witness Eadcliff said: ‘The dirt is always worth something. You would have to buy it or own it. There is no general market on any of this dirt. It is all figured on contracts; when a man wants it, he wants it bad; it depends on the contract. If they don’t want it, .you can’t get rid of it at all. We never mine any of it, unless we have a contract. You can’t bring it down here and wait for a market.’ ”
During the trial the defendant offered evidence to show the value of the lands in the. immediate neighborhood of the excavations complained of, and on objections of immateriality and irrelevance the same was excluded by the court and exception duly taken. The record shows that the court charged the jury orally, to which some exceptions, not material to mention here, were noted, whereupon the plaintiff requested in writing the following charge:
“The plaintiff in this case makes no claim for the earth used upon that part of the defendant’s track that was part of'the road of the Mobile & Alabama Grand Trunk Eailroad; and the court charges you that the defendant did not have the right to take any earth from plaintiff’s lands and place it upon the property of the A., T. & N. E. E. Co:, or upon the property of the Mobile & Ohio Eailroad Company, or upon any portion of the track of the Southern Eailway which was no part of the roadbed of the Mobile & Alabama Grand Trunk Eailroad Company; and if the jury find for the plaintiff for the dirt that was taken by defendant and so used, they should estimate plaintiff’s damages at the reasonable value of the earth delivered at the point where it was used or placed by the defendant:”
And the court gave said charge and read the same to the jury 'in connection with the court’s general charge, to all of which the defendant then and there duly excepted, and thereupon the defendant requested the court to give the following charge:
[542]*542“The court charges the jury that if they believe from the evidence that the defendant, through its employés, willfully or intentionally trespassed on the property of the plaintiffs and tools therefrom the earth in question, then the measure of the plaintiffs’ damage is the enhanced value of the earth so taken when and where it was finally converted to the use of the defendant; but if you should find from the evidence that the defendant took and converted the earth from plaintiffs’ property through inadvertence or mistake, or in the honest belief that it was acting within its legal rights, then the measure of damage is the value of the earth so taken as it was in the ground before it was disturbed by the defendant.” '
The court refused to give said charge, and the defendant then and there duly excepted.
The defendant further requested the court to give the following written charge:
“The court charges the jury that the measure of plaintiff’s damages in this case is the difference in the market value of the lands trespassed on immediately before the commission of the injuries and the market value of the lands immediately thereafter”
—which the court refused to give the jury, and to such refusal the defendant duly excepted. Whereupon the defendant requested the court to give the following written charge:
“The court charges the jury that if they, believe the evidence they can award to the plaintiff as damages in this case only the value of the clay or earth immediately after its severance from the ground”
—which was refused and the defendant duly excepted.
[3] It thus appears that, while excluding evidence of the value of the land theoretically trespassed upon and the «surface of which was actually excavated, the jury was practically instructed to find damages based on the value of - the earth at any point to which it was subsequently hauled and disposed of; and this tends to explain a verdict condemning the defendant to pay over $2,600 for removing from the surface of some 3.7 acres of land worth to the plaintiffs after the earth was removed by reason of its condemnation for a railroad right of way as much as before, because as to them the land was out of • commerce, and their title remote and contingent, charged with a servitude practically perpetual. Since the Woodenware Case, 106 U. S. 432, 1 Sup. Ct. 398, 27 L. Ed. 230, the rule has been in the United States courts that the honest or mistaken trespasser, severing timber, coal, ore, etc., from the- land of another, is liable for the value of the product severed at the time and place of severance, and it was error to refuse the charge requested by the defendant below in that respect.
Further than this, assuming, but not deciding, that the defendant below, by reason of his title and occupancy and possession, had no right to take clay and earth from the right of way "of the Mobile & Alabama Grand Trunk Railway to use on defendant’s other lines, although connected by tracks and in a sense forming a part of the same system, we are of opinion that under all the circumstances shown by the evidence in this case the true measure of damages is the value of the earth and clay at the time and place of severance, not to be [543]*543enhanced by expense of excavating and hauling to other places for disposition and use.
The judgment of the District Court is reversed, and the case is remanded, with instructions to set aside the verdict and award a new trial.'