
    Krug v. Peale, Appellant.
    
      Easement — Private railroad — Damages—Trespass.
    A person who has a right under a deed to construct a private railroad over the lands of another, is liable to the owner of the servient land only for the wanton, willful, or negligent acts of himself, or those acting by his direction, in the construction and operation of the railroad.
    Where a person has the right by deed to construct over the land of another a private railroad for the transportation of coal from a mine, the owner of the servient land cannot in an action of trespass recover damages for injuries alleged to be due to the wrongful construction and operation of the railroad, include a claim for damages for a use of the road not authorized by the defendant’s grant.
    
      Appeals — Practice, C. P. — Points and, answers — Contradiction of record.
    
    Where the record of an appeal shows that the trial judge read and answered appellant’s points in the hearing of the jury, the appellate court will not consider the oral statements of counsel that the trial judge did not read and answer the points in the presence of the jury.
    Argued May 6, 1907.
    Appeal, No. 186, April T., 1907, by defendant, from judgment of C. P. Cambria Co., Dec. T., 1904, No. 430, on verdict for plaintiff in case of John Krug v. Rembrandt Peale.
    Before Rice, P. J., Henderson, Morrison, Orladt, Head and Beaver, JJ.
    Reversed.
    Trespass to recover damages for injuries to land. Before O’Connor, P. J.
    
      The facts appear by the opinion of the Superior Court, and by the charge which was in part as follows:
    We are not going to say at this time that this deed gives the right to Rembrandt Peale to build a road over this land for the purpose of taking out coal from other lands, and for the purpose of conveying freight to other lands than that described in the deed; but it does not follow, from that construction of the' grant, that the plaintiff in this case is entitled to recover, for this reason, that if, from the evidence, you believe that Rembrandt Peale, the defendant, in his judgment or in the judgment of those employed by him to locate this railway, located it over this land to a point where, in his judgment, he thought it was convenient for the removal of the coal, then he was entitled to do so, notwithstanding the fact that he may have gone beyond that and conveyed coal from other lands, and notwithstanding the fact that he may have conveyed freight from other lands.' [That question is not involved in this case, except as bearing upon the main question, whether he deemed it himself necessary to construct the road to remove the coal from under the John B. Miller land. If'he did that, no person can question his right; but, if under the evidence in the case you are satisfied that he did not do so, that is, that.he did not exercise his rights in the deed in the use of his discretion — which you cannot question — but that he built the road for the purpose of talcing out coal from other lands,,after going over this land, and that that was the paramount reason for his locating this fine of railroad where he did, and thus damaged this plaintiff in the way complained of, then we say that, under his grant, he was not justified.] [1]
    The question of mining to the dip is one that is left to the judgment of the operator and his employees and engineers. We may say that it is a settled scientific fact, in this locality, in the operation of mines, that in many instances operators decide that it is preferable to mine to the dip, so that they may take out their coal without deep shafting. We suggest this now because ordinarily many of us, who are not learned in mining lore, would feel that if we had a drift that we could mine to the rise, that that would be the best way to mine the coal. Nearly all the coal operations near Johnstown are worked entirely to the dip, .and many others near here are worked in the same way. But the manner of operating any particular mine depends largely upon the situation, and it is a matter of judgment and opinion. No one can say positively that it is better to operate a mine one way than another. We say this because of some questions asked, and because of statements of counsel in the case, that the proper place would be to open the mine at the lower end, and then mine to the rise; but, as we understand the question, that would mean that there would have to be a shaft put down there and the coal brought to the surface through the shaft, and on a small piece of ground the construction of a shaft might cost as much as the CQal would be worth. We mention this as bearing upon the question of the exercise of the discretion of the defendant under his rights in this grant. (Interruption by counsel.) Someone said that they had to shaft at the lower end. Now, if you were to arbitrarily decide that that was the proper place to take out the coal and say you would not believe what Mr. Peale said, you would be wrong, for the reason that it is not whether Mr. Peale decided or his engineers decided on the best place to take out the coal, but did he exercise his discretion; that is, in his judgment was this as good a place or as convenient a place as any other? If so, he had a perfect right to open at that place and construct his railroad there, no matter whether he was all wrong. [The testimony discloses the fact that the opening is near the line of the Bearer and the Miller tracts. Mr. Peale says he is going to take out the coal under this tract also. We call your attention to this and emphasize it, because it has only this bearing on the case, as we are submitting it to you; that- is, whether or not you believe that this railroad was located for the convenient mining and removal of the coal under the Miller tract, part of which is owned by the plaintiff, or whether it was constructed mainly for the purpose of getting the coal from other tracts of land; in other words, whether Mr. Peale would have had his opening at this point and built the railroad at this point had it not been for the other mine.
    
      If you believe that this line was constructed simply for the purpose of removing the coal from other lands, then Mr. Peale, in exercising his discretion, took into consideration something else than the mining of the coal from the Miller property, and if he did that, we say to you that he did not have any right to injure the plaintiff in the case by constructing a railroad for the main purpose of removing coal from other property.] [2] If he would have constructed a railroad in any event to that point, whether he owned the adjoining coal tracts or not, then he is protected, because it was a proper exercise of Ms discretion,, under the agreement, whether he was wise or unwise. If you determine that he constructed the railroad in the exercise of discretion, under the deed, for the removal of the coal from the Miller property, then there is no damage resulting to the plaintiff by reason of that fact, because he had a right to do it, and you would so find for the defendant, unless you find that, in the construction of that railroad, the plaintiff caused extraordinary damages, unnecessary damages, unreasonable damages.
    [As to the destruction to the roof of the barn, one of the witnesses testified that it was damaged to the extent of $50.00. One of the defendant’s witnesses says tMs damage was repaired. That question is for you. We do not know of any other special damages that the plaintiff has produced evidence to show that he suffered; if you determine that Mr. Peale considered that tMs railroad was necessary, for the convenient removal of the coal under the Miller property. If he determined that in the exercise of the discretion given Mm under tMs deed he had a right to build that railroad. If he did not so determine, but determined it on the ground that it was necessary to remove the coal from some other property, and it would not have been necessary to construct the railroad to remove the coal from under the property that the plaintiff owned, he would not be exercising the discretion given to Mm, as we construe the clause in the deed before us. We may be wrong in' our construction of this clause, and if we are we can correct it under the action we will take in the case. There is a point directly covering that question, and we are asked to consider it favorably to the defendant. We refuse to do so. We have covered all these points in our general charge, and we will pass upon them, file them and refuse or affirm such points as meet with our views of the case in our general charge to the jury.] [3]
    Take the case, give it your careful consideration. It is not every time that a man suffers damages that he can recover. Here is a case where the plaintiff, evidently, has not been careful enough about the title that he took. He may have felt that the Spangler Improvement Company was good enough for him, when it warranted his title. If his deed were the controlling factor in this case we would say at once that he is entitled to recover; but, unfortunately, the Spangler Improvement Company attempted to give to the plaintiff more title than it had, and he has been injured by it. He had his remedy at the time; he could have had an examination of the records, which would have revealed the fact that the Spangler Improvement Company did not have as much title as it attempted to convey to him. That is not Rembrandt Peále’s fault. He knew what he was getting. He evidently had his title examined; he had all the rights that were conveyed to him in the deed. So there should be no prejudice against the defendant on account of the injury to the plaintiff, if you find, in the exercise of the discretion given him, he deemed it necessary to build the railroad for the removal of the coal under the Miller tract. The plaintiff built his house and barn on the land, with a title to the land which would permit the owner of the coal to go in there at any time and locate his railroad at such place as, in the judgment of the coal owner, was necessary for the removal of the coal. He took his chances. We recite this so you may not be prejudiced against the defendant and feel that he ought to be punished because of doing something in derogation of the rights of the plaintiff. ■
    [The sole question and the first question for you to determine is whether or not Mr. Peale, in the exercise of his judgment or discretion as to the location of that road, located it in such place as he felt was necessary for the convenient mining and removal of that coal. If he did that, he is released from any and all damages by reason of the cutting off of the approach to the barn, for cutting off the spring — for any and all damages caused or occasioned by reason of the construction of that road. On the other hand, if the main purpose in building the road was to enable him to transport over the Miller tract, coal from other tracts, this would not be such an exercise of his discretion as would release him from the damages in this case.] [4]
    November 18, 1907:
    Verdict and judgment for plaintiff for $850. Defendant appealed.
    
      Errors assigned were (1-17) various instructions.
    
      M. D. Kittell, for appellant.
    
      James B. O’Connor, for appellee.
   Opinion by

Morrison, J.,

The issue for trial was, under the pleadings, a very simple one. The defendant was clearly entitled to enter upon the locus in quo and construct, maintain and operate the railroad in question, for the purpose, at least, of mining and removing the coal from the land conveyed by the John B. Miller deed, and also of transporting such coal and other freight through and over said land. The rights of the defendant are conceded on all hands to be embraced in the Miller deed, dated September 25, 1884. It contains the following: “Together with the right to enter, mine and take away all of the coal, and make such openings, shafts, shutes, dumps, improvements, roads and railroads on the land as in the judgment of the parties of the second part, their heirs and assigns, may be necessary to conveniently mine the same, and transfer such coal and other freight through and over said lands.” It is conceded that the plaintiff purchased a portion of said land, with the Miller deed and the other conveyance vesting title in the defendant on the records, and he is thus visited with legal notice of the rights of the defendant in the premises. There is no dispute about the fact that the defendant entered upon the land and constructed, what, in his judgment, was a suitable and proper railroad to remove the coal therefrom. Under his grant the defendant was clothed with the discretion of constructing said road and locating it as would best effectuate his purposes. After the construction of the railroad by the defendant, the plaintiff brought the present action of trespass and we read his declaration to ascertain his cause of action.

The first material averment is that the defendant, in crossing the lands of the plaintiff with his line of steam railway, and by reason of his laying this line of railway, caused the plaintiff an extraordinary amount of damages. These damages are then set out: (a) The railway is placed too close to the new house and barn of plaintiff, making it necessary for him to remove his barn, also it ran too close to the house, making it unfit to live i'n and dangerous to children and adults, and at the time of building the said railway, the windows were broken and the roof punctured by stones and other missiles thrown by said blasts, (b) The railroad runs between the plaintiff’s house and a spring of water, and the strip of land on which the spring is located is “cut in between” the railroad of the defendant and the New York Central Railway, and plaintiff has no crossing, and he was compelled to fence the railway of defendant. The declaration then closes by averring, on account of the acts of the defendant above stated, he has been put to great inconvenience and damage to'the amount of $1,000.

Starting with the proposition that defendant had the right to construct and operate this railroad over plaintiff’s land, and the right to use his own judgment as to its location, what damages, under the pleadings, was the plaintiff entitled to recover? Clearly only'such as result from the wanton, willful or negligent acts of the defendant, or those acting by his direction. To put it in the language of the plaintiff’s declaration, extraordinary damages. We have examined the evidence with care, and it is not sufficient under the pleadings to sustain the verdict.

It is true there is some evidence of slight damage ,to the barn caused by a blast, but there is evidence that the defendant repaired this injury at his own expense. There is also evidence that a window of the house was broken, but the amount of the latter damage is not proved.

On what theory, then, did the jury find for the plaintiff in the sum of $850? It was because the court below permitted the jury to find whether the defendant constructed the railroad in good faith for the purpose of moving the coal from the Miller land, and transporting other freight incident thereto, or for another purpose. The logic of the learned court’s instructions is, if the jury find the latter purpose, they can assess damages against the defendant radically different from those set up in his declaration. This theory of the learned court we consider clearly erroneous. The question to be tried was, under the pleadings, whether in the exercise of his right to construct and operate the railroad, over plaintiff’s land, the defendant inflicted extraordinary damages? If he did, there could be a recovery; if not, there should have been a binding instruction for defendant. Whether the defendant has the right to haul other coal and freight, not connected with the Miller land, over his railroad, we do not consider properly raised in this suit, and we decline to decide that question. If the defendant makes an unlawful use of the road, a use not authorized by his grant, the plaintiff, if injured thereby, will have his remedy.

We find in the record seventeen assignments of error, but the view we take of the case makes it unnecessary to discuss the assignments seriatim. The view above indicated requires us to sustain the first four assignments of error, because in the instructions therein complained of the court below, in effect, left to the jury to inquire into and determine the rights of the defendant under the Miller deed. These rights were clear ■and undoubted, and are not to be determined by a jury in an action of trespass. The fifth assignment of error is not without merits, but the disposition we are making of the case does not require us to sustain it.

A question of practice is raised by the sixth to the fourteenth assignments, inclusive, and we will briefly notice it. These assignments aver that the learned court below did not read and answer in the hearing of the jury certain of defendant’s points. Each of said assignments so asserts, but, on looking at the defendant’s exceptions taken after the jury retired, we find no such complaint. The record as made up by the court below supports the theory that the points were read and answered orally to the jury. Judging by the record it was manifestly the duty of the learned court to read and answer these points in the hearing of the jury. We are now asked to convict him of the palpable disregard of his duty on the assertion and argument of the learned counsel for the defendant. This we cannot do. The only thing we find in the record tending to support the claim that the court made up a false record is a short excerpt from the charge, to wit: “There is a point directly covering that question and we are asked to consider it favorably to the defendant. We refuse to do so. We have covered all these points in our general charge and we will pass upon them, file them and refuse or affirm such points as meet with our view of the case in our general charge to the jury.” But this is ambiguous, and it is not a clear statement that the court did differently than the record shows. The defendant's counsel avers positively that his points and the court’s answers were not read to the jury. On the other hand, the plaintiff’s counsel avers that they were so read. The record tends to sustain the latter position, and we cannot sustain any of the assignments based on that ground.

The fifteenth assignment of error is that the court erred in not giving a binding instruction for the defendant. If it were not for the averment and evidence of the injury to the plaintiff’s bam and house we would sustain this assignment, but we think those alleged injuries may fall under the head of extraordinary damages, and that a verdict might have been rendered therefor under appropriate instructions. What has already been said requires us to sustain the sixteenth assignment. The seventeenth assignment is that the court erred in not sustaining a motion for judgment for defendant non obstante veredicto on the whole record." This assignment cannot be sustained for the same reason we have given as to the fifteenth assignment. We sustain the first, second, third, fourth and sixteenth assignments, and reverse the judgment and send the case back for a new trial of the question of extraordinary damages only. We are clearly of the opinion that the question whether the defendant constructed his railroad for the purpose of moving coal through, or over other lands and transporting freight incident thereto cannot be tried and determined in this action of trespass.

The judgment is reversed with a new venire.  