Lotz, J.
This is an appeal from a judgment of the superior court of Vanderburg county rendered against the appellant, upon the verdict of a jury, for the sum of $2,150.
The action was instituted by the appellee Clemmens Eeitz, against the appellant and Bertha Eeitz. The complaint is in two paragraphs. In the first, the appellee avers that he is and has been for eight years last past, the owner in fee and in possession of a part of block eleven and a part of block sixteen, Lamasco, now city of Evansville; that so far as the real estate situate in block eleven is concerned, the same since the 11th day of June, 1883, has belonged to him, although the paper title thereto was for a time, for his convenience, and for the convenience of his business, in his wife, the defendant Bertha Eeitz; that he has been in the sole [481]*481and exclusive possession thereof ever since that date ; that he bought it, paid for it, paid taxes upon it, improved it, and has occupied it solely, notoriously and to the exclusion of all others, and owned it; that his wife, the said Bertha, never had any interest in or to the same; that the paper title she held thereto was for the plaintiff and his benefit; that the said Bertha was willing to submit herself to the jurisdiction of the court as a party, and consent that a judgment might be rendered against her, barring her forever in any action against the Sunnyside Coal and Coke Company for trespass upon said lands; that on the first day of January, 1887, and on divers other dates between that and the commencement of this action the Sunnyside Coal and Coke Company wrongfully and unlawfully and without leave entered the premises of the plaintiff and dug, mined and removed eight thousand tons of bituminous coal of the value of $10,000.00, of which coal the plaintiff was the owner, and in possession, and converted and disposed of the same to its own use, and otherwise injured said premises to the plaintiff’s damage in the sum of $10,000.00.
The second paragraph is the same as the first with the exception that it is averred that the trespass was done wrongfully, unlawfully, purposely and maliciously. The appellant answered in denial and specially a continuous license to take coal by an arrangement made with a former owner of the realty. Bertha Reitz filed an answer in which she admitted all the allegations of the complaint to be true so far as the same affected her, and disclaimed any right or title in the real estate, and to any interest in the coal taken therefrom, and consented that judgment might be rendered against her barring [482]*482and inhibiting her.from ever after asserting any rights to the same.
Counsel for appellant have argued several points which they assume contain reversible error, but it is conceded that there are two controlling questions presented by the record: 1. Was the plaintiff entitled to recover for the coal taken during the time the title to the property was in the name of the co-defendant Bertha Reitz? (2) What is the proper measure of damages? The first of these questions was saved by motion to separate, and by motion to strike out parts of the complaint, by objection to the evidence and by an instruction requested to be given to the jury. It seems from the evidence that the major part of the coal was taken while the title to the land was in the name of Bertha Reitz. It is insisted with much earnestness that it was neither averred nor proved that any trust relation existed between Clemmens Reitz and his wife Bertha, because there was no contract or agreement that she was to hold the title in trust; that she was the absolute owner of the property in fee, and that any damage done in removing the coal was a chose in action that accrued to her and did not pass to her grantee upon a conveyance of the land.
If this were an action between Clemmens Reitz and Bertha Reitz to declare and enforce a trust, appellant’s position would no doubt be well taken. In the absence of an agreement on the part of Bertha to hold the land in trust, the presumption would be that the conveyance was but a provision made for her by her husband. The statute of frauds would also prevent the enforcement of the trust, as resting in parol. Section 6631, R. S. 1894. While the statute is a bar to the enforcement of parol contracts concerning lands, it does not render such contracts illegal, and the parties may perform them if they [483]*483think proper. A trust of the kind averred may be shown to have existed, not for the purpose of enforcing it, but for the purpose of showing that it has been fully executed. Moore v. Cottingham, 90 Ind. 239; Hays v. Reger, 102 Ind. 524.
We are not here called upon to enforce a trust, but to declare the rights of the parties to an executed trust; and for that purpose it is immaterial whether or not the trust was one that could have been enforced by the courts in the first instance. The parties having voluntarily executed the trust as between themselves, their rights are the same as if the trust had been capable of enforcement at its inception. Had the trust been one of the latter kind and voluntarily executed, we apprehend that no question would arise as to the right of Clemmens Reitz to recover for the injury done while the legal title was in another. It is further contended that if the trust relation be admitted the case is then divisible into two actions, one at law to recover damages, and one in equity to establish the trust; that the first is triable by a jury and the latter by the court, and that it was error to submit the whole case to the jury. In this contention we do not concur. The action is one at law to recover damages done to real estate and for severing and converting coal. The trust relation is but an incidental matter. It is more properly a matter of evidence than of pleading. We think it is fairly inferable from the averments that a trust relation existed and there was some evidence tending to sustain it. As to the second question relating to the measure of damages, the court instructed the jury to the effect that if the trespass was committed by mistake or unintentionally the measure of damages would be the value of the coal taken at its market value in the vein; or before severing it from the soil, together with such other dam[484]*484ages to the real estate flowing from such trespass. The court further instructed, the jury 'that if the trespass Was willfully and intentionally committed, the measure of damage’s Would be the value of the coal bon verted at the place where it lay after it had been mined, allowing nothing to the defendant company for severing the same. There is some conflict in the authorities as to the proper measure of damages in such cases.
In Woodenware Co. v. United States, 106 U. S. 432, Justice Miller, after stating the rule in Willful trespass to be the full value of the property at the time and place of demand or suit brought with no deduction for labor or expense, says: “There seems to us to be no doubt that in the case of a willful trespass the rule, as stated above, is the law of damages, both in England and in this country, though in some of the State courts the milder rale has been applied even in this class of cases.
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Lotz, J.
This is an appeal from a judgment of the superior court of Vanderburg county rendered against the appellant, upon the verdict of a jury, for the sum of $2,150.
The action was instituted by the appellee Clemmens Eeitz, against the appellant and Bertha Eeitz. The complaint is in two paragraphs. In the first, the appellee avers that he is and has been for eight years last past, the owner in fee and in possession of a part of block eleven and a part of block sixteen, Lamasco, now city of Evansville; that so far as the real estate situate in block eleven is concerned, the same since the 11th day of June, 1883, has belonged to him, although the paper title thereto was for a time, for his convenience, and for the convenience of his business, in his wife, the defendant Bertha Eeitz; that he has been in the sole [481]*481and exclusive possession thereof ever since that date ; that he bought it, paid for it, paid taxes upon it, improved it, and has occupied it solely, notoriously and to the exclusion of all others, and owned it; that his wife, the said Bertha, never had any interest in or to the same; that the paper title she held thereto was for the plaintiff and his benefit; that the said Bertha was willing to submit herself to the jurisdiction of the court as a party, and consent that a judgment might be rendered against her, barring her forever in any action against the Sunnyside Coal and Coke Company for trespass upon said lands; that on the first day of January, 1887, and on divers other dates between that and the commencement of this action the Sunnyside Coal and Coke Company wrongfully and unlawfully and without leave entered the premises of the plaintiff and dug, mined and removed eight thousand tons of bituminous coal of the value of $10,000.00, of which coal the plaintiff was the owner, and in possession, and converted and disposed of the same to its own use, and otherwise injured said premises to the plaintiff’s damage in the sum of $10,000.00.
The second paragraph is the same as the first with the exception that it is averred that the trespass was done wrongfully, unlawfully, purposely and maliciously. The appellant answered in denial and specially a continuous license to take coal by an arrangement made with a former owner of the realty. Bertha Reitz filed an answer in which she admitted all the allegations of the complaint to be true so far as the same affected her, and disclaimed any right or title in the real estate, and to any interest in the coal taken therefrom, and consented that judgment might be rendered against her barring [482]*482and inhibiting her.from ever after asserting any rights to the same.
Counsel for appellant have argued several points which they assume contain reversible error, but it is conceded that there are two controlling questions presented by the record: 1. Was the plaintiff entitled to recover for the coal taken during the time the title to the property was in the name of the co-defendant Bertha Reitz? (2) What is the proper measure of damages? The first of these questions was saved by motion to separate, and by motion to strike out parts of the complaint, by objection to the evidence and by an instruction requested to be given to the jury. It seems from the evidence that the major part of the coal was taken while the title to the land was in the name of Bertha Reitz. It is insisted with much earnestness that it was neither averred nor proved that any trust relation existed between Clemmens Reitz and his wife Bertha, because there was no contract or agreement that she was to hold the title in trust; that she was the absolute owner of the property in fee, and that any damage done in removing the coal was a chose in action that accrued to her and did not pass to her grantee upon a conveyance of the land.
If this were an action between Clemmens Reitz and Bertha Reitz to declare and enforce a trust, appellant’s position would no doubt be well taken. In the absence of an agreement on the part of Bertha to hold the land in trust, the presumption would be that the conveyance was but a provision made for her by her husband. The statute of frauds would also prevent the enforcement of the trust, as resting in parol. Section 6631, R. S. 1894. While the statute is a bar to the enforcement of parol contracts concerning lands, it does not render such contracts illegal, and the parties may perform them if they [483]*483think proper. A trust of the kind averred may be shown to have existed, not for the purpose of enforcing it, but for the purpose of showing that it has been fully executed. Moore v. Cottingham, 90 Ind. 239; Hays v. Reger, 102 Ind. 524.
We are not here called upon to enforce a trust, but to declare the rights of the parties to an executed trust; and for that purpose it is immaterial whether or not the trust was one that could have been enforced by the courts in the first instance. The parties having voluntarily executed the trust as between themselves, their rights are the same as if the trust had been capable of enforcement at its inception. Had the trust been one of the latter kind and voluntarily executed, we apprehend that no question would arise as to the right of Clemmens Reitz to recover for the injury done while the legal title was in another. It is further contended that if the trust relation be admitted the case is then divisible into two actions, one at law to recover damages, and one in equity to establish the trust; that the first is triable by a jury and the latter by the court, and that it was error to submit the whole case to the jury. In this contention we do not concur. The action is one at law to recover damages done to real estate and for severing and converting coal. The trust relation is but an incidental matter. It is more properly a matter of evidence than of pleading. We think it is fairly inferable from the averments that a trust relation existed and there was some evidence tending to sustain it. As to the second question relating to the measure of damages, the court instructed the jury to the effect that if the trespass was committed by mistake or unintentionally the measure of damages would be the value of the coal taken at its market value in the vein; or before severing it from the soil, together with such other dam[484]*484ages to the real estate flowing from such trespass. The court further instructed, the jury 'that if the trespass Was willfully and intentionally committed, the measure of damage’s Would be the value of the coal bon verted at the place where it lay after it had been mined, allowing nothing to the defendant company for severing the same. There is some conflict in the authorities as to the proper measure of damages in such cases.
In Woodenware Co. v. United States, 106 U. S. 432, Justice Miller, after stating the rule in Willful trespass to be the full value of the property at the time and place of demand or suit brought with no deduction for labor or expense, says: “There seems to us to be no doubt that in the case of a willful trespass the rule, as stated above, is the law of damages, both in England and in this country, though in some of the State courts the milder rale has been applied even in this class of cases. * * * * * On the other hand the weight of authority in this country, as well as in England, favors the doctrine that where the trespass is the result of inadvertence or mistake, and the wrong Was not intentional, the value of the property When first taken must govern; or if the conversion sued for was after value had been added to it by the Work of the defendant he should be credited with this addition. ”
The rule in this State in cases of willful trespass is that the owner may recover his chattels in specie, so long as their identity can be determined, no matter how much value may have been added to them by the labor of the wrongdoer, and if the chattels have been converted he may recover the value at the time of the conversion, in the form in which they then existed if he is content therewith, though he is entitled to the highest price at- any time between the taking and the conversion. Ellis v. Wire, 33 Ind. 127. As soon as the coal [485]*485in controversy in this case was severed from the soil, if; became personal property, and for carrying it away and converting it to its own nse the appellant became liable for such damages as might be assessed as in cases of other kinds of personal property. Pittsburgh, etc., R. W. Co. v. Swinney, Exx., 97 Ind. 586 (598); 1 Hilliard, Torts, p. 501; Hail v. Reed, 15 B. Mon. 479.
While the coal lay in the vein it was a part of the realty; when it became severed, it became a chattel. The change in its condition did not change its ownership, it still belonged to the owner of the soil. He was entitled to recover its possession, and if this could not he done he was entitled to recover its value as a chattel. If a trespass is willful and intentional, the law will not permit the trespasser to profit by his own wrong. Whatever labor the trespasser voluntarily bestows upon property under such circumstances he must lose. If a trespass is the result of a mistake the damages may be reduced by the value of the labor expended upon it. The one is a positive aggressive wrong, the other a mere inadvertence. As bearing upon the measure of damages in such cases, see Everson v. Sellers, 105 Ind. 266; Yater v. Mullen, 24 Ind. 277; Martin v. Porter, 5 M. & W. 302; Avon Coal Co. v. McCulloch, 59 Md. 403; Barton Coal Co. v. Cox, 39 Md. 1; Robertson v. Jones, 71 Ill. 405; McLean Co. Coal Co. v. Lennon, 91 Ill. 561.
The appellant further insists that the rule adopted by the court in its instructions permits the assessment of punitive damages. Punitive damages only commence where full compensation ends. Such damages lie exclusively in the discretion of the jury. The owner of personal property is entitled to recover it, or its value, when converted. If an intentional trespasser is compelled to lose the labor which he has bestowed upon [486]*486property converted, it results from the enforcement of a principle of law and not from the varying discretion given to the jury in assessing the damages. We think the appellant cannot justly complain of the instructions bearing on the measure of damages.
permitted the appelle to give evidence as to the intention and motives of the appellant's superintendent in mining and taking the coal. This ruling was assigned as a cause for a new trial. It is true as appellant points out that this court, in the case of Knisely v. Hire, 2 Ind. App. 86, which was an action for cutting timber from the plaintiff's land, used this language. " Neither do we see how the good faith of the appellant could change the rule for the measurement of the damages in such cases as this. Full compensation is all that appelle could recover under any of the-case.” ' It does not appear from.the opinión in. that case tliat the complaint charged a willful trespass. Here one paragraph of the complaint does’ a willful trespass,and the intention and motives' of appellant’s superintendent, at the time of taking the coal, were material as' bearing'upon the measure of damages.
The appellant offered to prove the market value of’ appellee’s real estate, both before and after the injuries complained of. This offer was refused. Under the averments of the complaint, the appellee’s damages were not confined to the value of the coal taken. He was entitled to recover for any other injury done to his realty. Knisely v. Hire, supra. But as his evidence of damages was confined strictly to the value of the coal. taken and no effort made to recover for any other injury done to the realty, there was no error in refusing the proffered evidence.
The appellant asked the court to instruct the jury to [487]*487the effect tliat the appellee had no right to recover for coal mined under Delaware street and Eleventh avenue, streets adjoining appellee’s property. There was no evidence that any coal was mined either under Delaware street or Eleventh avenue during the time of appellee’s ownership, consequently there was no error in refusing this instruction.
Filed January 29, 1895.
The appellee was permitted over appellant’s objection to give some evidence which had hut little or no relevancy to the controversy, hut we do not find anything in it that would warrant the reversal of the case.
It is. lastly contended that the verdict is excessive. A careful reading of the evidence discloses that there is some evidence tending to support the full amount of the verdict. This court will not disturb it under such circumstances.
Judgment affirmed.