§ 501. THE RULE IN ENGLAND. 83 in an action of trover. (a) Still further, where the distinction between the forms of action is abolished, as is very generally the case, and the plaintiff recovers upon the case stated in his pleadings, since he could gain advantage from the form of action, he should clearly be entitled only to actual compensation, though he alleged a conversion. As we shall see, the result of these considerations has been a great conflict of authority. 501. The rule in England.-The rule which was at first adopted in England allowed the plaintiff in all cases to recover the value of the property at the time of the conversion, that is, after it was severed from the soil. In a case in the English Exchequer,' the circumstances were as follows: The plaintiff and the defendant were adjoining proprietors in a coal district. The defendant had worked his coal mine under the plaintiff's land, to an extent exceeding a rood, unintentionally, as is to be inferred, the contrary not being alleged, and had brought up a considerable quantity of coal. Trespass being brought, the defendant supposed the rule of damages to be the value of the coal in the bed, or its market value, less the price of getting it out, and paid into court the sum of £133. But Parke, B., who tried the cause, said that the plaintiff would have been entitled in an action of trover to the value of the coal as a chattel, either at the pit's mouth, or on the canal bank, if the plaintiff had demanded it at either place, and the defendant had converted it, without allowing the defendant anything for having worked and brought it there; that not having made such a demand, and this action being trespass, he 1 Martin v. Porter, 5 M. & W. 352. (*) For the rule in an action of trespass quare clausum, see the chapter on Injuries to Real Property. was entitled to the value of the coal as a chattel at the time when the defendant began to take it away, that is, as soon as it existed as a chattel, which value would be the sale-price at the pit's mouth, after deducting the expenses of carrying the coals from the place in the mine, where they were got, to the pit's mouth. And the jury, adopting the above principle, fixed the value of the coal, when got, at £251 9s. 6d. Leave was given to reduce the verdict (if the court should be of opinion that the proper measure of damages was the value of the coal in the bed, which the jury estimated at £159) to an amount equal to the difference between this sum and the £133, paid in by the defendant. But the rule was refused, the court thus affirming the principle laid down at the trial. Lord Abinger said: "It may seem a hardship that the plaintiff should make this extra profit of the coal; but still, the rule of law must prevail." And the doctrine of this case was recognized in the Queen's Bench.' But in a case at Nisi Prius, where a similar trespass was complained of, Parke, B., told the jury that if there was fraud or negligence on the part of the defendant, they might give as damages under one of the counts, which was in trover, the value of the coals at the time they first became chattels, on the principle laid down in Martin v. Porter. But if they thought that the defendant was not guilty of fraud or negligence, but acted fairly and honestly in the full belief that he had a right to do what he did, they might give the fair value of the coals, as if the coal fields had been purchased from the plaintiff; which latter estimate was adopted by the jury.' This conflict of opinion continued for some time, (") but Wood v. Morewood, 3 Q. B. 440 n. 1 Morgan v. Powell, 3 Q. B. 278. (^) See Hilton v. Woods, L. R. 4 Eq. 432; Llynvi Co. v. Brogden, L. R. 11 Eq. 188. § 501. THE RULE IN ENGLAND. 85 the rule laid down by Baron Parke in Wood v. Morewood was finally adopted in Chancery, (*) and by the House of Lords in the case of Livingstone v. Rawyards Coal Co.,() a Scotch appeal. In that case Lord Blackburn said: "I do not think there is any difference of opinion as to its being a general rule that, where any injury is to be compensated by damages, in settling the sum of money to be given for reparation of damages you should as nearly as possible get at that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation. That must be qualified by a great many things which may arise—such, for instance, as by the consideration whether the damage has been maliciously done, or whether it has been done with full knowledge that the person doing it was doing wrong. There could be no doubt that there you would say that everything would be taken into view that would go most against the wilful wrong-doer-many things which you would properly allow in favor of an innocent, mistaken trespasser would be disallowed as against a wilful and intentional trespasser, on the ground that he must not qualify his own wrong, and various things of that sort. But in such a case as the present, where it is agreed that the defenders, without any fault whatever on their part, have innocently, and, being ignorant, with as little negligence or carelessness as possible, taken this coal, believing it to be their own, when in fact it belonged to the pursuer, then comes the question,-how are we to get at the sum of money which will compensate them? "Now, my lords, there was a technical rule in the English courts in these matters. When something that was part of the realty (we are talking of coal in this particular case) is severed from the realty and converted into a chattel, then instantly on its becoming a chattel it becomes the property of the person who had been the owner of the fee in the land whilst it remained a portion of the land; and then in estimating the damages against a person who had carried away that chattel, it was considered and decided that the owners of the fee were to be paid the value () 5 App. Cas. 25, 39. (*) Jegon v. Vivian, L. R. 6 Ch. 742. of the chattel at the time when it was converted, and it would in fact have been improper, as qualifying his own wrong, to allow the wrong-doer anything for that mischief which he had done, or for that expense which he had incurred in converting the piece of rock into a chattel, which he had no business to do. "Such was the rule of the common law. Whether or not that was a judicious rule at any time I do not take upon myself to say; but a long while ago (and when I say a long while I mean twenty-five years ago) Mr. Baron Parke put this qualification on it, as far as I am aware for the first time. He said; if, however, the wrong-doer has taken it perfectly innocently and ignorantly, without any negligence, and so forth, and if the jury in estimating the damages, are convinced of that, then you should consider the mischief that has been really done to the plaintiff, who lost it whilst it was part of the rock, and therefore you should not consider its value when it had been turned into a piece of coal after it had been severed from the rock, but you should treat it at what would have been a fair price if the wrong-doer had bought it whilst it was yet a portion of the land as you would buy a coal-field.(*) That was the rule to be applied when it was an innocent person that did the wrong. That rule was followed in the case of Jegon v. Vivian,(1) which has been much mentioned; it was followed in the Court of Chancery, and, so far as I know, it has never been questioned since, that where there is an innocent wrong-doing the point that is to be made out for the damages is, as was expressed in the minutes of the decree: 'The defendants to be charged with the fair value of such coal and other minerals at the same rate as if the mines had been purchased by the defendants at the fair market value of the district'; that I understand to mean as if the mines had been purchased while the minerals were yet part of the soil." § 502. Technical rule, followed in some jurisdictions.— The technical rule, allowing recovery of the whole value of the property after its severance, was at first followed in this country. So in New York,' where certain logs 1 Brown v. Sax, 7 Cow. 95. (*) Wood v. Morewood, 3 Q. B. 440 n. (L. R. 6 Ch. 742. 502. TECHNICAL RULE, IN SOME JURISDICTIONS. 87 had been cut on the plaintiff's land, drawn to the defendant's mill, and converted into boards (the value of the logs being $187.56; of the boards, $309.46, and the difference, $121.90); and the judge charged that the measure of damages would be the value of the boards. without reference to the price of the defendant's labor, and the jury gave $309.46. It was insisted, on a motion for a new trial, that in trover, where the conversion was the gist of the action, and the character of the original taking not inquired into, the damages should be confined to the value of the thing as taken, or the value of the defendant's labor deducted; and that even if the rule laid down at the trial were sound in trespass, it could not apply here, because the plaintiff had elected to bring trover. The court held otherwise, on the authority of previous cases. But Sutherland, J., dissented. He admitted that where the taking was wilful and tortious, this rule would not be oppressive or unjust. But that as the mode of taking could not, in trover, be inquired into, no such general rule could be laid down. He put the case of jewels lodged with a banker for safe custody, and pawned by him, and set at great expense by the pawnee; could the rightful owner in trover against the pawnee obtain the jewels as set, without deduction for the labor of setting? But a new trial was denied. This rule has been followed in several jurisdictions in this country. So it is held, in the case of coal wrongfully mined, that the measure of damages is the value of the coal at the pit's mouth, less the expense of bringing it there, but allowing nothing for the expense of mining;(*) (*) Cheeney v. Nebraska & C. S. Co., 41 Fed. Rep. 740; McLean C. C. Co. v. Long, 81 Ill. 359; McLean C. C. Co. v. Lennon, 91 Ill. 561; and in trespass, Illinois & St. L. R.R. Co. v. Ogle, 82 Ill. 627; Franklin C. Co. v. |