
    Newark Coal Company v. Upson.
    The N. C. Co., a corporation, with malice and without probable cause, sued U. and others, in a civil action, and by an order of injunction made on its exparte application, prevented U. et al. from entering upon and enjoying their property, and ajso from prosecuting a profitable business. After a year had passed the N. C. Co. dismissed its action. U. et al. thereupon sued the company, claiming damages for said malicious prosecution. Held,
    
    1. They can maintain the action.
    2. The measure of the damages is the value of the right of U. et al. to possess their property and prosecute their business during said period! o£ ouster and suspension: i. e. the value of the use of the property,, in the business, during that time.
    3. The quantity and quality of the coal.there and then minable; the expense required to put and keep the mines in operation; the nature and! extent of the facilities for transporting the coal to market; the extent of the demand for such coal; the cost of placing the coal in market and its market price; the relation of the parcel of land in question! to other mining properties of U. et al., are all facts that naturally and; materially affected the value of the use in question.
    4. Although these facts include the element of profit upon possible sales Of coal, it was proper for the jury to consider them; not treating said element as itself a measure of the damages, but as one of the facts affecting the value of the use taken from U. et al.
    
    Error to the District Court of Licking County.
    On the 15th day of May, 1869, an instrument was executed of which the following is a copy;
    “ Articles of agreement, made and entered into' this fifteenth day of May (15), A. D. 1869, by and between Jonas Garrett, of Perry county, Ohio, party of the first part, and; 5. Welsh Beall, of Miama county, Ohio, and S. Baird, of Zanesville, parties of second part.
    “ Witnesseth, That the said party of the first part agrees to sell and convey all the stone coal that is or may underlie the following described tract or lot of land, situated in the township of Salt Lick, county of Perry, and state of Ohio, and being the farm on which Jonas Garrett resides, bounded as follows: On the north by lands of A. Yager, on the east by lands of J. Yager, on the south by lands of C. Shellhammer, on the west by lands of Robert & Co., containing sixty-six acres, more or less, also twenty-three acres bounded as follows: On the north-east by lands of H. & J. Welsh, on the south by lands of- B. Gordon, on the west by lands of S. Marshall; also thirty acres, bounded as follow’s: On the north by lands of John Woodruff, east by lands of Henry Hazelton. Jr., south by lands of T. Barns and J. R. West, west by lands of Mrs. Lucinda Plummer, in all, one hundred and nineteen acres, more or less, excepting three acres about permanent buildings.
    “ And also grants the exclusive right to test, open, and remove said coal, and further grants the right to construct railroads, and underground entries, all necessarj- buildings and fixtures to facilitate the mining and removing of said coal. And the parties of the second part agree to construct, or assist in constructing, a railroad from or near Straits-ville, Perry county, Ohio, connecting with the Columbus and Hocking Valley Railroad, or any other railroad that the parties of the second part chooses to connect with, and should the parties of the second part fail to comply with these conditions within two years from this date, then this contract to be void. And it is agreed by the parties of the second part, that they will, within three years from date of this contract, test the said lands bj' drilling or otherwise ; and if in case there should be discovered a minable vein or basin of stone coal of sufficient quantity to justify the opening and mining of said coal, in the opinion of the said parties of the second part, then they agree to mine out said coal, and pay the following rate per ton for all coal mined on said premises, to wit: Ten cents for each ton of twenty-two hundred and forty pounds of merchantable coal, the payments to be made and continue in the following manner, to wit: Payment in hand one dollar in a revenue stamp, and signing and sealing of this contract is an acknowledgment of receipt thereof.
    “ All money due for coal mined shall be paid for in thirty days, on the premises.
    “ It is also agreed, that all coal mined on said premises is to be accurately weighed on the premises, and the weight to be kept in a book, which shall at all reasonable times be open for inspection of the said party of the first part; and it is further agreed that the said parties of the second part are to have the privilege of using the said railroads, underground entries, buildings and fixtures, for the purpose of mining and removing coal, and from other lands, and after said mine becomes exhausted or unminable,-that they may continue the use of said railroads, underground entries, buildings and fixtures, by paying the party of the first part, a reasonable compensation, that they may use them for the purpose of transporting coal. All money due under this contract to be paid or received in bankable funds of the state of Ohio.
    “ This contract subject to all other contracts now on record, otherwise to remain in full force.
    “ And we, the parties, by signing and sealing this contract, bind ourselves, our heirs, our assigns, and legal representatives, tc strictly adhere to the several covenants and agreements of this contract, as witness, our hands and seals, the day and year above written.
    “Signed, .sealed and delivered in presence of Thomas Young, S. M. Griffin, witnesses for J. Garrett; Thomas Young, Huida West, witnesses for Beall & Baird.
    [Internal revenue stamp, 50 cents.]
    “Jonas Garrett, [Seal.]
    “S. Welsh Beall, [Seal.]
    “S. Baird, [Seal.]
    “ The State oe Ohio, ) County of Perry, > ss. Township of Salt Lick. )
    “ On this fifteenth day of May, A. D. 1869, before me, a justice of the peace in and for said county, and state, personally came Jonas Garrett, S. W. Beall and S. Baird, above named, who severally acknowledged the signing, sealing and acknowledgment of the foregoing instrument to be their free, voluntary act and deed for the uses and purposes therein mentioned, they are still satisfied therewith, and desire that the same may be recorded as such.
    “Thomas Young, J. P.
    “ Received May 18,1869. Recorded May 25, 1869.
    “ W. G. Buckner, Recorder Perry County.”
    On July 1,1869, Beall and Baird by deed assigned and transferred all “ the property and rights of property, interests, powers and possessions of every kind therein conveyed to them ” to the Straitsville Coal and Iron Company, an Ohio corporation. On April 15, 1872, this corporation sold and conveyed to J. W. Upson, as trustee for himselt and others, “ all the rights mentioned ” in said paper of May 15, 1869, “to the 23 acres ¿¡.escribed in said contract.”
    The Straitsville Coal and Iron Company, during the year 1870, subscribed and paid $40,000 to help build the branch railroad, from the Hocking Valley railway, at Logan, to a point at, or near, New Straitsville ; which point was as near to Straitsville as it was practicable to construct a railroad. Prior to February, 1872, said company made tests for coal on the 23 acre tract and found “ there was a remarkable vein of coal on that land.”
    Upson and his associates in March, 1872, by arrangement with the Straitsville Company, entered upon the land, and expended much money in driving entries into the coal; in constructing a railway leading from the Newark and Shawnee railroad towards said land; and in making other structures necessary for the business of mining and transporting coal on and from said land. By July 27th, 1872, their work had made such progress that, if not interrupted, they would have been ready to ship coal about the middle of the September following. Upson et al. were pressing work and arrangements, purposing, during the fall and succeeding season, an active prosecution of the business of mining, shipping and selling coal.
    On October 27th, 1871, Garrett, who still owned the fee of said land, conveyed it by deed to one Brown.
    On July 26th, 1872, The Newark Coal Company, having actual notice of Upson’s title, possession, work and expenditure, took a deed for the 23 acre tract from Brown, who expressly excepted from his warranty of title all claims arising under the instrument of May 15th, 1869, already herein quoted.
    The next night, said Newark Company, by force, seized the land, ejected Upson and his employés, and held armed possession until the company had begun a civil action in Perry Common Pleas against Upson and his associates and, on an ex parte application, obtained an order of injunction, whereby it prevented all the defendants in said action from re-entering said land and from mining coal thereon, and from transporting it therefrom. On trial in the Common Pleas a judgment of dismissal was rendered, from which the Coal Company appealed, but, after perfecting the appeal, voluntarily dismissed their action on August 27th, 1873.
    On June 30th, 1874, Upson and his associates began a civil action in Licking County Common Pleas, against the Newark Coal Company. Their petition contained tw'o causes of action: the first charging the trespasses of July 27th and following days; while the second charged that the prosecution of the injunction suit was with malice and without probable cause. Each count fully set out the wrongful interference with the property rights of the plaintiffs, and that they had thereby been prevented from prosecuting their lawful business from July 27th, 1872, until August 27th, 1873, to their great damage,— all in due form of law. Issues of fact were joined.
    At trial the jury found for the plaintiffs, assessing their damages at $15,000. On a motion for a new trial the court thought the damages excessive, but as a remittitur of $6,000 was entered by the plaintiffs, it overruled the motion and gave judgment in favor of the plaintiffs and against the Newark Coal Company, for $9,000 and costs. A bill of exceptions embodying all the evidence was taken. The District Court affirmed the Common Pleas judgment. The ease is here on error from the District Court. So many of the alleged errors as we deem proper for report, are indicated by questions in the opinion.
    
      H. § L. II. Goodwin and George B. Smythe for plaintiff in error.
    I. There was no consideration for the contract of May 15th, 1869. Parsons on Con., 448, 449; Chitty on Con., 46 ; Burnett v. Biseoe, 4 Johns, 235; Lester v. Everett, 12 Barb., 505; 3d Parsons on Con., 408; Hill v. Croft, 2d Phillip, 60; Lumbg v. Wagner, 13 E. C. L. & Eq., 252; Railroad Co. v. Brinckerhoff, 21 Wend., 141.
    2. The contract did not give possession, 17 Ohio St., 21. The land was not sold. And the plaintiffs had no right to an action of trespass. Jackson v. Clark, 3 Johnson, 424; Jackson v. Myers, 3 Johnson, 388; Ives v. Ives, 13 Johns; 235 ; 9 Johns, 35, 331; 1 Johns, 123; 4 Johns, 150.
    3. It was an entire and not a severable contract. 2 Ohio, 341; 3 L. C. Eq., 70; 16 Ohio St., 545; 3 Ohio St., 338; 17 Ohio St., 475; 51 N. Y., 246 j 31 Pa. St., 477; 10 Wend., 639.
    4. No title to the coal passed to Beall & Baird by the terms of the contract. It only gave them an incorporeal hereditament. 13 Mees. & Welsh., 838; 8 lb., 488; 16 Ohio St., 573; 6 Wis., 348; 40 Pa. St., 341; 2 Wall. Jr., 91; 4 East, 469; 73 111., 453; 55 Pa. St., 168; 2 Barn & Aid., 724; 4 Eng. C. L., 719; 2 Washburn’s Real Prop., 86; 32 N. J., 249; 47 Ind., 112; 53 Pa. St., 229.
    II. An action for malicious prosecution will not lie in a case of this kind. 1 Am. L. C., 210; 11 Conn., 582; 1 Wend., 354; 9 Ohio, 103; 8 Ohio St., 548.
    III. As to the measure of damages. 10 Ohio, 333; Sedgwick on Damages, 222; 1 Handy, 152; 5 Ohio St., 585; 2 Kernan, 40; 23 Ohio St., 358; 16 Ohio St., 573; 5 Ohio St., 504; 16 N. Y., 496; 1 Dutcher, 453.
    
      
      J. Buckingham and J. B. Jones for defendant in error.
    I. The answer to the objection that there was no consideration for the contract is, 1st. It is under seal, which implies a consideration, at least prima facie. 2d. The covenants on the part of Beall & Baird are absolute. 1 Parsons on Con., 373-376. 3d. The deed is a grant, an executed contract and no consideration was necessary. 4th. Want of mutuality is no defense to either party to a contract, unless it be merely executory. 55 Pa. St., 516.
    II. The instrument of May 15th, 1869, was a conveyance. In construing it the intention of the parties must have a controlling influence.
    . That the language used does not import that the parties had it in their mind to make another and more formal writing is a strong, if not controlling circumstance, in the construction of it. Bortz v. Bortz, 55 Pa. St-., 164; Chit Con., 313-315 and Note; 4 Kent Com., 105.
    The circumstance that the instrument is attested by two witnesses and acknowledged before a justice, shows that the parties regarded it as a deed conveying the title — the final instrument between them..
    Ikit if the instrument gives the grantee and his assigns the license or right for a term of years to mine on the grant- or’s land and convert the mineral to the grantees’ own use, then it passes an interest, and that interest may be assigned by the grantee. Maskett. v. Hill, 5 Bing., 694; Fink v.. Halderman, 53 Pa. St., 229; Q-rove v. Hodges, 55 Pa. St., 504; CHllett v. Treganza, 6 Wis., 343; Baimb. on Mines, 269, 271; 31 Pa. St., 474; Caldwell v. Fulton, 31 Pa. St., 474.
    III-. As to the action for malicious prosecution, see 9 Ohio, 103; 8 Ohio St., 548; 4 Ohio St., 502. That the action lies for malicious injunction was held in Cox v. Taylor, 10 B. Mon., 17; see also Whipple v. Fuller, 11 Conn., 581; Closson v. Staples, 42 Vt., 209; Marhourg v. Smith, 11 Kan., 554; Panghurn v. Bell, 1 Wend., 345. That- the injunction was allowed by a judge is no excuse or defense. 2 Add. Torts, 748, citing Fitz John v. MacJclinder, 39 L. J. C., 257, and 29 L. J. C., 170.
    
      IV. As to the measure of damages. Allison v. Chandler, 11 Mich., 542; Sedges, on Dams., 79, 80, 92; 71, 73, 89; lb., 661, Note — 693. White v. Morley, 8 Pick., 356; Roberts v. Mason, 10 Ohio St., 277; A. (?. i2. _fi. v. Dunn, 19 lb., 162.
   Granger, C. J.

I. What right, or estate, in the 23 acre tract, if any, was vested in Upson and his associates at the time of the ouster ?

A careful examination of the instrument executed by Garrett, Beall and Baird, on May 15th, 1869, leaves the mind satisfied that the parties did not contemplate the future execution of any other conveyance by Garrett: that, as they understood it, Beall and Baird were, by the delivery of that paper, vested with all the estate and title in said premises that Garrett intended to sell to them, or that they intended to buy of him. It is true the words “ agreement,” “ agree to sell and convey,” “ contract,” and the like, are used. But so also are the words “ and also grant the exclusive right to test, open and remove said coal;” so, also, they sign, seal and acknowledge it, precisely as if it were a deed of conveyance; “ and desire that the same may be recorded as such.” It is a well settled rule that the plain purport and purpose of an instrument, as a whole, should-control the ordinary meaning of particular words, so far as to make them conform to that purport and purpose.

We think that the title to the minable coal, with full right to enter and remove it, passed to Beall and Baird; that under the express words of the final clause of the deed of May 15th, 1869, their assigns fully succeeded to their rights; and, that, as the tracts of land were several, and the coal easily capable of subdivision, the conveyance to Upson was valid.

II. Did the grantees fulfil the conditions on which the continuance of the interest, or rights granted, depended? Garrett named “ at or near Straitsville ” for one end of the railroad to be aided. The other end might connect with the Hocking Valley railway, or such other railway as the grantees should prefer. The grantees did, within the two years, aid a railway, that began as near to Straitsville as practicable, and connected with the Hocking Valley. This fulfilled the condition. We think the performance of the condition as to “testing” for coal is not seriously denied. Hence, on July 27th, 1872, Upson was in rightful possession as lawful owner of the coal, for himself and his associates, with full right to prosecute the business of mining, removing and selling the coal.

III. Was the second cause of action a good one ?

It may now be considered the approved doctrine, that, an action for the malicious prosecution of a civil suit may be maintained, whenever, by virtue of any order, or writ, issued in the malicious suit, the defendant in that suit has been deprived of his personal liberty1', or of the possession, use, or enjoyment, of property of value. The name, or form, of the writ, or process, is immaterial. It may be an order of arrest, or of attachment, or of injunction.

The malicious prosecutor cannot shield himself behind the interlocutory order of the judge, based upon his own malicious, éx parte application and affidavit.

IV. By what rule should the damages be assessed ?

There being no market value of the rights taken from Upson and his associates, the only practicable rule for settling that value, is to follow, the ordinary common sense practice of business men. Make known to the body charged with the assessment, as fully as legal evidence can do it, all the facts that naturally, and materially, affect the value of the use of the rights of which the plaintiffs below were wrongfully deprived. These facts necessarily include the location, thickness, quantity and value of the coal that was mineable there and then; the facilities for transporting that coal to a market; the nature and extent of the demand for that coal; the total expense of placing it in the market (this included also all preliminary expenditures) ; the competition with which they must contend; the contingencies in the demand and supply of labor; the relation of the 23 acres to other mining lands of Upson and his associates, for which they could use part, or all, of the same approaches ; the total cost of the coal to them, and the. prices for which it was saleable during the period of the suspension; all these are facts naturally affecting the value of the right to prosecute that business with that coal, at and from that place, during that time. No one of them is by itself a measure of the value. Considered together, some of them add to, others subtract from the value; and then, after such a view, a common sense judgment again subtracts a percentage for the contingencies that are ever presenting themselves in the affairs of men.

Within these facts thus stated is the element of “profit on possible sales of. coal,” i. e. the difference between the cost of it and its market price. But it is there not as a measure of value; not in order to be allowed by the jury “ as profits,” but to be treated as one of a mass of facts that throws light upon the value of the use of- the rights taken from Upson, all of which the jurors ought to have known and considered when computing the damages. As we understand the charge to the jury, it instructed them to ascertain the value of the use in question by considering the evidence bearing upon the classes of facts hereinbefore enumerated. Inasmuch as it was the duty of the jury to consider the element of profits in the manner above described, the judge did not err when he omitted to charge as the defense below desired. Upon the remaining alleged errors complained of in the record, we hold against the plaintiff in error, upon.established rules of law and practice, and therefore without naming them, we affirm the judgment of the District Court.

Judgment accordingly.  