
    Augusta G. Genet, Appellant, v. The President, Managers and Company of the Delaware and Hudson Canal Company, Respondent. (Action No. 7.)
    Judgment reversed, new trial ordered before another referee, with costs to plaintiff to abide event.— Appeal from a judgment entered upon the report of a referee.—
   Patterson, J.:

The subject-matter of this action has been so often stated in opinions of this and other courts, in actions involving the contract between the parties, that it is unnecessary to repeat what has been written concerning it. The plaintiff now appeals from a judgment in her favor, rendered in one of her several actions, upon the report of a referee, she claiming that upon the evidence she was entitled to a much larger judgment than that awarded her for the coal which passed through the half-inch mesh. Her right to the increase, she claims, depends primarily upon the construction to be given to the instrument, out of the provisions of which the liability of the defendant to her arises, which instrument has been frequently before the courts of this State for construcfeion. From the varying and contradictory judicial interpretations which have been given to that instrument by the courts, there has at last been evolved by the Court of Appeals a construction which, having been announced in Genet v. Delaware & Hudson Canal Co., 163 New York, 182, and reiterated in 167 New York, 608, may now be regarded as settled. Under that construction it is now definitely determined that, by the provision of the lease or instrument between the parties to this action, the defendant, the lessee, is required to pay for the coal that passed through a mesh of a half inch square, if it chose to take such coal, at the same rate at which it wasrequired to pay for othercoal taken under the contract. The provisions of the lease or instrument were that the defendant should pay a fixed sum for every ton of clean merchantable coal, exclusive of culm or mine waste, that would pass through a mesh of a half inch square, and the ultimate decision of the Court of Appeals is, that if the defendant chose to take the culm or mine waste, it must pay for it also as clean merchantable coal at the rate or royalty to be paid for other coal than that denominated culm or mine waste. The court of last resort also held that the lessee was not obliged to take this coal, but had the right to take it if it chose, and, so doing, no question cau arise as to its merchantability. By taking it the defendant determined for itself the question of cleanness and merchantability. This culm, or what was considered at the time of the making of the contract mine waste, the Court of Appeals in substance holds comes under the same conditions of the contract as the other and larger coal which the defendant took from the plaintiff’s mine, and the same obligation to pay applies to this culm as applies to the. other coal. That which passed through a half inch mesh was referred to generically as culm, but wheu ib came to be utilized by the defendant was specifically subdivided into what is known as pea coal, buckwheat coal and birdseye coal, after which there remained a residue still known as culm, in contradistinction to the three descriptions of coal named. In this case the referee has allowed a recovery for pea and buckwheat coal taken by the defendant, but he has not allowed for birdseye or culm. He reported that the defendant has not taken, sold or disposed of any culm from culm heaps situafced upon land described in the complaint or otherwise which said culm was the properfcy of the plaintiff. He also found and reported that the defendant has not taken, consumed, sold or disposed of any culm from any culm heaps situated upon the land of the defendant, the culm of which culm heaps came from the lands of the plaintiff. As we read the evidence in this case, this conclusion of the referee is erroneous. It is shown that the defendant took from the culm which belonged to the plaintiff certain quantities which it used in its steam engines, and for that it should pay the plainti.f, whether in the form of birdseye coal or what is called culm, and under the evidence it is liable to the plaintiff for all her culm which it took by putting it out of her reach and beyond her power to repossess herself of. It would seem that there were two sources from which this culm was taken. One from the plaintiff's mine, carried through a tunnel and deposited on the defendant's land and there intermingled with culm which belonged to the defendant, We think that this situation created by the defendant is not now before us for considerafcion upon tue present record, as the exceptions filed to the report of the referee were not broad enough to cover a demand for it. But it is established by the evidence that a large amount of culm was taken from ihe plaintiff's mine, brought to the surface on her land, passed through the breakers there and was carried by the defendant from the plaintiff's land over bridges (which the defendanfc erected for the very purpose) to the defendant’s own land, and was tlierekept and retained by it. This, in our judgment, constitutes a takingand appropriation of the plaintiff’s culm and she cannot enter upon the defendant’s land and repossess herself of it without being a tresoasser, and indeed after such dominion and* authority has been exercised over it by the defendant, she is not called upon to take steps to repossess herself of it. Under the construction given by the Court of Appeals to the contract, the plaintiff being entitled to recover at the rate of royalties named in that contract and not the market value of the coal (as we formerly supposed to be the rule), the referee should have found for the plaintiff for the additional amounts to which she is entitled by reason of the taking and appropriation of the culm.as we have above stated. We have not the data before us by which these amounts can be ascertained in a satisfactory manner, and, therefore, the judgment appealed from must be reversed and a new trial ordered before another.referee, with costs to the plaintiff to abide the event. Van Brunt, P. J., Ingraham, McLaughlin and Hatch, JJ., concurred,  