
    Electa A. Dyke, Respondent, v. National Transit Company and Mary M. Scott and Claude R. Scott, as Executors, etc., of Rufus Scott, Deceased, Appellants, Impleaded with Reuben Doty and Others.
    
      Punitive damages—not proper where the trespasser believed that he had a right to the article taken.
    
    The owner of land, the value of which has been enhanced by valuable structures erected thereon by a corporation, is not entitled to recover punitive damages from such corporation because it has taken oil from such land under the mistaken supposition that it had a right to do so. In such a case the owner’s recovery should be measured by the value of the oil taken as it lay in the earth. -
    Appeal by the defendants, the National Transit Company and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Allegany on the 9th day of January, 1896, upon the decision of the court rendered after a trial at the Allegany Trial Term before the court without a jury.
    This appeal was transferred from the fourth department to the third department.
    On July 20, 1881, the defendants Doty and Spargur being in possession of, and claiming in good faith to be the owners of, premises which were actually owned by the plaintiff, entered into a contract with one Breckenridge for the sinking of oil wells upon the premises.
    Breckenridge having abandoned the contract, the defendant Rufus Scott resumed operations thereunder, and the oil procured was delivered to the defendant, the National Transit Company, for transportation.
    Upon the trial of the action which was brought to recover the value of the petroleum so taken from the plaintiff’s lands, the court held that the defendants were not entitled to offset the expense of procuring the oil from the value of said oil after it was taken from the wells.
    
      A. 8. Kendall, for the National Transit Company, appellant.
    
      Olarenee A. Farnum, for the executors of Rufus Scott, appellants.
    
      
      Charles H. Brown, for the respondent.
   Landon, J.:

This judgment is a violent shock to one’s sense of justice. It rests mainly upon Silsbury v. McCoon (3 N. Y. 379). That was a case where the wrongdoer, knowing that he was doing wrong, converted the owner’s corn into whiskey, and it was held that the title to the whiskey still remained in the owner of the corn. Here the wrongdoer mistakenly supposed he had the right to take the oil. The trial court found that all the acts of every one of the defendants were done in the honest belief that the defendants had good title to the oil as against the plaintiff. The difference between the two cases is that in the one the wrongdoer knew he was doing wrong, and in the other he supposed he was doing right. In the case cited there was ample ground for punitive damages; in this case no ground at all. Hughes v. United Pipe Lines (119 N. Y. 423) turned upon a former judgment in an action in which Stephens sought to have it adjudged that the oil he had already taken from land which Hughes claimed belonged to him. Hughes answered, claiming both oil and land, and the court adjudged that he owned both. Of course, in the subsequent action, above entitled, in which the Pipe Lines Company defended under Hughes, the former judgment was conclusive. As the oil was above ground before the first suit was commenced, its value in the second action had to be measured accordingly. The court had nothing to do with its value under ground; and, although it cited Silsbury v. McCoon (supra), it is plain that that case could not affect a decision based upon the conclusiveness of the former judgment.

The trial court found that the value of' the plaintiff’s land was not lessened by the defendants’ operations, but had been increased by the valuable erections they had placed upon it.

I think the value of the oil as it lay in the earth is the full and true measure of the plaintiff’s damages. (Wooden-Ware Co. v. U. S., 106 U. S. 432; Stockbridge Iron Co. v. Cone Iron Works, 102 Mass. 80; 26 Am. & Eng. Ency. of Law, 831; 5 id. 37; 2 Sedg. Dam. [7th ed.] 420; Clark v. Holdridge, 12 App. Div. 613.)

The distinction is between a willful trespasser and a mistaken one. The one knows he is wrong, and the other believes he is right. When the latter is shown to be wrong, if he makes full indemnity, justice can exact no more. Punitive damages are not the plaintiff’s right, but are given, as said in Livingstone v. Rawyards Coal Co. (5 App. Cas. 25; 33 Moak’s Eng. Rep. 622), when the court “ will assert its authority to punish fraud by fixing the person with the value of the whole of the property which he has so furtively taken, and making him no allowance in respect of what he has so done.” In Loos v. Wilkinson (113 N. Y. 497) it is said: “ It is the general rule, even in actions to recover damages for pure torts, that the plaintiff shall recover compensation for such damages only as he has actually suffered; and such is the invariable rule in all cases, except where * * * punitive damages may be awarded, and in such cases courts are constantly striving to come nearer to the rule of compensation.”

It is not denied that there are many cases of purely constructive torts in which the courts have permitted the injured party to recover more than he has lost. Of course, as against such a wrongdoer, the courts ought to award the injured party full indemnity, and need not scrimp the measure. Hence, I "suspect, it is that they have taken the less pains to notice that the rules which they follow are punitive in their nature, and should be limited to cases in which the wrongdoer deserves punishment.

Here, the defendants are technically, but not morally, guilty of a tort; and on the mere technicality, the plaintiff, who has been benefited by the technical tort, considered in all its features, seeks further to divest them of a large part of their estate. The courts should refuse to assist so palpable an injustice, or to sanction extortion under the forms of the law.

The defendant, the Rational Transit Company, was not liable for any greater damages than the other defendants.

I advise that judgment be reversed, new trial granted, costs to abide the event.

All concurred, except Putnam, J., dissenting.

Judgment reversed and a new trial granted, costs to abide the event. one of the justices, the result aloud to those present. One Tobin, who was a watcher of one of the political parties, took the seat of one of the justices at the request of such justice as he was about to go to dinner, and while so occupying such seat during the period of half or three-quarters of an hour lie delivered, from a pile of folded official ballots upon the table, twelve or fifteen ballots to voters as they came up for votes, at the same time calling aloud the name of the voter and the number of the ballot. This was done under the eye and supervision of the justices present. One Plall, who was an elector and claimed to be a watcher in the interest of a political party, but was not a watcher appointed by any political party filing a certificate of nomination of candidates for offices to be filled at that meeting, was permitted to sit within the guard rail and make challenges to voters, and for two or three hours in the middle of the day, while there was a rush of voters, he, at the request of one of the justices, assisted him in folding some of the ballots, which, when folded, were handed to the justice and by him delivered to voters, such ballots being the official ballots and such folding being done in a proper manner and under the immediate eye and supervision of such justice. One Ryan, while the canvass was being made, came inside the guard rail and stood up by the side of one of the justices who was taking ballots from a pile and opening them. Ryan, as he stood there, reached forward and passed some of the ballots, one by one unopened from the pile, to the justice, such ballots not exceeding in number twenty-five, and then upon request he left. The votes were correctly canvassed, and no votes were counted that were not voted, and all that were voted were counted. It is not claimed that any one voted who was not authorized to vote, or that any one entitled to vote was prevented from voting.  