
    THE BLAIR IRON AND COAL CO. vs. LLOYD.
    A mining company is responsible for negligence of its engineer in mining beyond its own land.
    If such trespass is committed ignorantly the measure of damages should be the value of the ore in place.
    If done wantonly, the jury may add a reasonable amount to compensate for the wanton wrong.
    Error to Common Pleas of Blair County, No. 70 May Term, 1874.
    The facts of this case appear in the charge of the court which was as follows delivered by
    Dean, P. J.
    This is an action of trespass, by John Loudon, James Loudon, Joseph Dysart, and William M. Lloyd, plaintiffs, against “The Blair Iron and Coal Company,” defendants, to recover damages for an alleged wrongful entry upon lands of plaintiffs.
    The action is for an injury to the possession. Even where no serious, or actual damage is done, the owner can maintain tres pass against the wrong-doer, for the purpose of vindicating his right to the undisturbed possession, or else that, which at first is a trespass, might under the statute of limitations become a right.
    The plaintiffs to here make out their case, must show either that they were in actual possession of the land at the date of the alleged trespass, or that they had the right to the immediate possession of it, and a wrongful entry upon it by the defendants; these two facts being shown, entitle them to a verdict in some amount — what amount depending upon the extent of the damage done them by defendants wrong, which amount may be further increased, if the entry besides being without right, was wilful, malicious, or the result of gross negligence.
    The defendants plead “not guilty;” under this plea, they can give evidence tending to show that they did not enter upon lands of plaint' ffs, or if they did enter, the damage was not as great as claimed by plaintiffs, and for the purpose of preventing a recovery for more than compensatory damages, may show that the en try, even if wrongful, was inadvertent, not intentional, or was in honest belief oí a right to enter.
    Some facts are not in dispute. Plaintiffs and defendants are adjoining land owners in Blair township near this borough : the land of both, prior to the year 1843, formed part of a larger body owned by Chauncey, Biddle and Moore, as tenants in common. In that year proceedings in partition, between the heirs of these parties, were instituted in the Common Pleas of Huntingdon county, (this county being then part of Huntingdon) and the land parted or divided among them. On reference to these proceedings, and the draft appended thereto, it appears that the land was divided into purparts, lettered from A to H inclusive, and numbered to correspond from 1 to 7. The purpart letter 13, No. 4, containing 257 acres and 55 perches fell to, or was taken by the heirs of Chauncey, and the purpart adjoining it on the southeast, letter C, No. 3, containing 309 acres and 109 perches fell to, or was taken by the heirs of Moore. Hnder the proceedings in partition, a survey of the different purparts was made by an old and experienced surveyor, William Reed, now dead. He made a draft of his work, which was attached to, and formed part of the record of the proceedings in partition. From this draft, it appears that Mr. Reed ran the lines of the purparts on the ground, and indicated them, either by natural objects, or marked by trees? posts or stones, as well as gave the courses and distances. You will notice on the draft the line between the purparts C and D, thus : Beginning at a pine, on the line of Bernard O’Friel’s heirs; thence south 21 degrees west 59 perches.to a hickory; thence 7 degrees east 19.7 perches; thence south 21 degrees west 183 perches to a white oak, thence south 58-| degrees west 49 perches to a post. This was the line between the C and D purparts, called by the -witnesses, and as we shall call it, for iudentifieation, the “Reed ■line.”
    Chauncey’s heirs, as we have already stated, took purpart D, which was the land N. W. of that line; Moore’s heirs took C, the land S. E. of that line. On the 1st day of May, 1852, Chauncey’s heirs by deed conveyed all of D to David Robinson and Robinson .and wife for the consideration on $24,000.00, by deed April 1st, 1868, conveyed it to the plaintiffs in this suit, who took possession ■under their deed, and so remained up until the bringing of this ■suit.
    In 1849 partition was made of C, the Moore purpart to and ¡among the heirs of Moore. Under this partition, as shown by the record, Lucretia Moore intermarried with John J. Patterson, took that part of C which adjoins D immediately, and is separated from it by the “Reed line.” By proper conveyances, the last dated September 10th, 1866, the defendants purchased from Pat-terson and wife 180 acres of this purpart, the portion so purchased being on the “Reed line,” between C and D, thus making the plaintiffs and defendants adjoining owners along the “Reed line,” where the alleged trespass was committed.
    Previous to defendants purchase, Patterson had leased portions of C to different persons for mining purposes, and the parties leasing had taken out some iron ore by open cuts, and stripping; but the defendants, when they went into possession in 1866, commenced running a slope for the purpose of reaching the ore by underground excavation. The slope ran towards the “Reed line” ¡and the entrance was near 400 feet from it, the distance, of course, depending on the exact location of the line. From the slope, they conducted their mining operations, excavating headings and rooms, taking out large quantities of ore, up until the spring or ¡summer of 1871.
    In 1871, you will remember the evidence on this point, it is .alleged by plaintiffs that defendants were mining on their (plaintiffs) side of the line, and that they so notified them. Up to this point, we do not understand the facts to be disputed. It is not ■disputed that the plaintiffs have the right to the possession of ■the land on the north-west side of the “Reed line,” and defendants to that on the southeast side of it. The locality of the line is in dispute, and as you determine this, and the other disputed facts in the case, you determine the rights and liabilities of these parties.
    If the defendants took ore from the lands of plaintiffs, then what quantity did théy take ? What price should they pay, or what is the measure of damages ?
    From the evidence on both sides here, the quantity is to be ascertained mainly, by finding out the number of superficial yards mined over the “Reed line” on plaintiffs’ land. Where is that line ? All taken out northwest of it belonged to plaintiffs, and they can recover damages for the taking; all taken out southeast of that line belonged to the defendants. The quantity is also in dispute, because of the different estimates and measurements of witnesses, as concerns the thickness of the vein and purity of the ore ; the evidence of plaintiffs tending to show a greater weight in a square yard than that of defendants.
    The price that defendants should pay, if liable at all, is also in dispute. The plaintiffs claim that for the greater part of the time, the alleged trespass was wilful, or intentional, and for the remainder-of the time if not wilful, was culpably negligent, and therefore their liability is the same as if it had been wilful. The defendants deny that the trespass was either wilful or negligent, and claim if there was a trespass, it was innocently committed, while in the belief that they were working upon their own land. If there was a trespass, and it happened as claimed by defendants, the price per ton, or the damages would be much less, than if it were intentional as claimed by plaintiffs, and even assuming the case to be with the defendants ' in this particular, the plaintiffs claim a higher price for the ore taken, than the defendants admit should be allowed after deducting the costs of mining.
    We have, thus, adverted briefly to the facts in dispute. You have noticed that the counsel for the parties have urged upon the Court their views of the law, so far as it determines the measure of damages from the nature of the trespass. It is our duty to determine the law, and it is yours to apply it as we state it to you, to the evidence, and so make up your verdict. It is your duty under your oaths, to accept the construction we give the law; any error on our part can be corrected by the Supreme Court.
    The law applicable to this evidence under this issue, so far as it seems necessary to state it, of as counsel on either side have requested or suggested a statement, is all that we refer to.
    The defendant is a corporation, an artificial person, and must act through and by its officers and agents. A corporation is responsible for the acts of its officers and agents, where those acts are done in and about the business entrusted to them. David Watson, it is admitted, was the general manager and superintendent of all the business of this corporation, and John Brawley, under him, was the mining engineer: as such engineer, Brawley had charge of the location and construction of the mines; fixed the direction of the slope; determined its extent, and mapped out for the workmen the place for mining. Charles Hartsock was foreman in the mines and supervised the daily work.
    Any acts, done by either or all of these agents, in carrying on the business entrusted to them; the .defendants are answerable for. If Brawley had assaulted a man and beaten him on the highway, that would have been a wrong for which his principal could not have been held answerable; it would not have been within the scope of his employment; [but, if as alleged, he either wilfully or negligently located a mine for defendants upon their neighbor’s land, that was an act in the prosecution of the business confided to him, and for such a wrong the corporation is responsible. The extent of their liability is measured by the degree of wilfulness or gross negligence on the part of their agent, and this, whether his act was with, or without the knowledge of the company at the time of the commission of the wrongful act.] A principal cannot relieve himself from liability by asserting that the act of his agent was without his authority ; if the act of the agent was committed in the prosecution of the business entrusted to him, the principal must answer for it, because it is his duty to entrust his business to none but careful agents, those careful of the rights of third parties, as well as of the interests of his employer. [The knowledge and acts of the agents of this corporation, when had or done in the prosecution of the business entrusted to them, are the knowledge and acts of their employer, the defendants.]
    Where a trespass has been inadvertently committed, that is, where the conduct of the trespasser, measured by the ordinary standard of morality and care, a standard known to every one, is not chargeable with fraud, violence, or gross negligence, the value of the property taken, where it is a mineral, after deducting all just expenses for mining it, is the measure of damages. This compensates the plaintiff, and in such a case is all that should be allowed.
    If the defendants, acting in the mistaken belief that this ore was upon their own land, mined and used it, they should only pay the value of it at the mouth of the mine, after deducting the expense of putting it there — all just expenses in mining it.
    But where there is outrage or violence in the taking, or where the taking is intentional and wilful, or there is gross negligence in the taking, the measure of the damages is the value of the property when it first becomes a chattel; in the case of a mineral, when it first sees the light of day, or reaches the mouth of the mine. Where a trespasser' wilfully takes his neighbors minerals, ore or coal, knowing it to be not his, but his neighbors, the trespasser can claim no deduction for the expense of mining, or tbe labor necessary to a conversion. So here, if the defendants knowing and intending when they located the slope, that the plaintiffs’ ore should be reached thereby ; [or if after it was located and opened, they, by means of it, knowingly took ore from the plaintiffs ’ land and converted it to their own use ; or if taking into view the knowledge or means of knowledge of the parties, the circumstances surrounding them, at the time they located their shaft and conducted their mining operations, they did not exercise that care which ordinarily prudent men, in such a matter should exercise, but recklessly took out ore from their neighbors ’ land, not knowing or caring whether it was their own or anothers, they are answerable for more than compensatory damages merely; they are liable for the value of the ore at the mouth, of the mine, without any deduction for the expense of mining :] but if any portion was taken inadvertantly, under an honest, though mistaken belief;that it was their own, on such portion so taken they are’ entitled to a deduction equal to the expense of mining it.
    
      While the law, as before stated, determines the measure of damages — punishes a wilful wrong-doer as well as compensates the injured party — it would be an outrage and wrong to impose upon a party, guilty only of an unintentional trespass, a penalty in damages equal to the increased value of the ore at the mouth of the mine. Not seldom, the rights of others are infringed upon by ordinarily prudent men, in the prosecution of a lawful business, and there is no intentional wrong or selfish purpose ; but the law imposes no penalty in such cases except that of mere compensation to the injured party.
    If there was a trespass, and the land of plaintiffs otherwise, than by removing the ore has been injured, they are entitled to compensation for such injury; the amount of damage done the land outside of the removal of the ore, does not seem to have been much, if anything; the evidence bearing on this question is for your consideration. There can be no recovery in this suit by these plaintiffs for any damage, the result of trespass, prior to April 1st, 1868, for their possession dates only from that time.
    We now call your attention to the evidence.
    What quantity of ore, if any, did defendants take from lands of plaintiffs after April 1st, 1868, and before the commencement of this suit? As before stated, whatever was taken out by them northwest of the “Reed line,” was taken from these lands. Where was that line as marked by Surveyor Reed on the ground ? ■ The natural or artificial marks designated or made by him, such as streams, trees, posts or stones, if they can be found, are the surest guide as to the exact location of the line. The plaintiffs claim that this line is where it was located by James L. G win, who ran it at instance of defendants in July, 1871. You have seen the draft made by Judge Gwin and heard his testimony. [The Court here referred to the testimony of Gwin, and repeated portions of it.]
    His opinion is, from his work on the ground, the marks he saw there, and from his examination of Reed’s work, that the line laid down by him, on his (Gwin’s) draft, which is in evidence, is the line run by Reed in 1843. You will also remember the testimony of Joseph Dysart, as to his familiarity with this line, and marks upon the ground. He says that in the spring of 1871, in company with Mr. Lytle, a surveyor, some efforts which were unsatisfactory to him, were made to find the line; that afterwards he himself took a compass and ran the line, and found upon it some of the old marks, among them a notched hickory stump, which plaintiffs claim was afterwards destroyed by defendants. [The Court here referred at length to Dysart’s testimony.] He further says that he was with Judge Gwin when he ran the line, and the line laid down on Gwin’s draft is the one found by him, and known to him as the line.
    The plaintiffs claim that, there is evidence tending to show, that both the stump and the sugar,were destroyed by defendants? with a purpose to prevent the ascertainment of the true line.
    You then have the testimony on part of plaintiffs, of John M. Gibbony, a surveyor, who, it is claimed, agrees with Judge Gwin in all the material parts of Gwin’s testimony.
    The plaintiffs further claim, that Gwin ran this line at request of defendants; that they thus indicated their confidence in his integrity and capacity as a surveyor ; and further, that in a former suit between these parties, in which Gwin’s draft was in evidence, defendants admitted and conceded Gwin’s line to be the division line.
    From this, and other evidence bearing upon the question, it is claimed be plaintiffs, that where Gwin ran the line in 1871, there Reed ran it in 1848, and that this line defines the possession of the parties, aud determines their right to all the ore northwest of it.
    The defendants contend that the “Reed line” is not where Gwin locates it, but further west; and while at their request Gwin sought to ascertain the line in 1871, and in his opinion found it; and, while they in a former suit, for the purposes of that suit alone,- consented that the dispute should be ' determined by the Gwin line, this fact does not estop them from now showing that Gwin was mistaken, or from giving other evidence tending to show that the “Reed line” is not where Gwin located it. On this point we instruct you, that any admission made by defendants in the former suit of a fact, is evidence for your consideration, in so far as such admission tends to corroborate or sustain the witnesses for the plaintiffs, who testify that the Gwin line is the “Reed line” of 1843, but the defendants are not estopped by such admission from showing that Gwin was mistaken, and that the “Reed line” is west of that run by Gwin. Even if they had full confidence in Gwin, and employed him, they are not concluded by his opinions. Gwin believed then, and doubtless believes now, that the line run by him is the true line; this is "an opinion of his, which the defendants were not bound to adopt on the former trial, and, if they did, are not bound to adhere to it, if they have since discovered Gwin’s mistake. Therefore, notwithstanding any alleged admission on part of defendants at the former trial you will consider all the testimony bearing on the question, in determining the true location of the “Reed line.”
    The defendants call J. Simpson Africa, a surveyor, who testifies that, at request of defendants, he went upbn the ground on the 11th of this month to ascertain the line. [The Court here referred at length to Africa’s testimony.] You will observe from Africa’s draft, that he ran two lines, slightly differing from each other, but both west of the line run by Gwin. He does not testify positively that either of these lines is the “Reed line,” but that, from marks on the ground, the original draft of Reed, and allowing for variation what from experiments made by him should be allowed, they are as correctly located as he can locate them. You will remember his testimony, as well as consider the work he did to test the accuracy of Gibbony’s survey, and you will have out with you his draft. (The Court then called the at tention of the jury to the testimony of John McGinnis, Judge Caldwell, Robert Horrell, Charles Hartsock, and John Brawley, witnesses called by defendants to testify to facts tending to show that the “Reed line” was west of where Gwin located it.) It is further urged by defendants that Gwin, in running his line, crosses the bend in Brush Run ; that Reed did not cross it, nor does Africa ; you will consider this and all the evidence adduced' by defendants in support of their position. You will also bear in mind the rebutting testimony of Gwin and Gibbony, and all the testimony bearing on this point, and determine where the line was run by Reed in 1843.
    If that line is where the plaintiffs claim it to be — where Gwin located it in 1871, then you will determine what quantity of ore was taken out west of it; this would make the largest quantity, in any view of the evidence, plaintiffs could claim.
    From the testimony of John M. Gihbony and O. M. Irvin, two witnesses who made measurements for the plaintiffs, the quantity reached by the slope and headings west of the line is 8,990 square yards, including pillars and that remaining in heading; the quantity in the pillars is estimated at 1,723 yards, and that remaining in upper end of heading at 2,813 yards, or altogether in pillars and heading 4,536 yards, which deducted from the 8,990, leaves 4,454 square yards taken out, as the plaintiffs claim, west of the Gwin line.
    It is further claimed by plaintiffs, that the average thickness of the ore vein taken away was 13 11-100 inches. You will remember the testimony of Gibbony and the miners, as to the manner in which the average thickness was ascertained. Taking this as the average thickness, the cubic feet in the 4,454 yards is 43,432. This is the highest estimate made by plaintiffs of the quantity west of the “Need line.”
    On this question the defendants have called M. McDonald, who testifies that he made an underground survey of the work on the 21st of April last; that the quantity west of the line run by Gwin was 9,018 square yards ; quantity remaining in pillars and heading 4,852 square yards, and quantity taken out 4,166 square yards. He makes the average thickness 11 48-100 inches, and number of cubic feet 35,087, making a difference of 8,345 cubic feet in the two estimates. You will determine the quantity west of that line taken out by defendants. Each party has given evidence of the weight per cubic foot, and both sets of witnesses seem to have adopted the same method to ascertain the weight, but they differ about 12 lbs. to the foot in the result of their tests; the plaintiffs’ witnesses make the weight per cubic foot 232 lb's. 4J oz., the defendants, 220 lbs.
    The estimate of defendants makes the number ot tons west of the Gwin line 3,446, and deducting what McDonald says is a fair allowance, 5 per cent, for fault, and 5 percent, for slate, 10 percent, altogether, or 344 tons, leaves 3,102 tons taken out we3t of the Gwin line. Taking that line as the basis of both measurements and calculations,there is adifference of 1,309 tons between plaintiffs and defendants estimate of quantity in tons.
    
      If the line run by Africa be the true “Reed line,” then the amount taken out west of it, from- McDonald’s testimony, was only 2,267 yards, increasing the.difference, and reducing the number of tons to 2,289; or if the fence represented or was on the “Reed line,” then from McDonald’s testimony, the defendants took out from plaintiffs’ land only 673 tons.
    There are, thus, three quantities ; which of them shall be taken as the quantity for which defendants should pay, depends on whether the Gwin line, the Africa line, or the fence be the “Reed line.”
    All of the evidence bearing on the question of quantity must be considered by you. Where, does the weight of the testimony show, was the “Reed line ?” What, does the weight of the testimony show, was the quantity taken out west of it ?
    Having determined the quantity, then determine the price defendants should pay, or the amount of damages plaintiffs should recover.
    The plaintiffs claim that the taking of the ore from the commencement to the ending was wilful, with a knowledge that it was their’s, the plaintiffs. It is urged that defendants’ deed from Patterson and wife had a draft attached, on which the “Reed line,” as re-run by Gwin, is clearly indicated ; that the proceedings in partition were a public record, showing the courses and distances oí the line; that Robinson claimed to the “Reed line” outside the fence; that the marked trees were pointed out to him by Kearney and Walker, and although he admitted the fence was near the line, yet he always claimed to a line outside of it; that Brawley, defendants’ engineer, was a practical surveyor, familiar with line trees, and knew of Gibbony’s running in 1864, and, therefore, must have known when he located the slope, where the line was; that Dysart starting with the compass easily found what plaintiffs claim to be the “Reed linethat the surveyors, Gwin, Gibbony, Lytle and Irvin, found the line; the circumstances attending, and the cutting of the sugar .by Rauch ; the disappearance of the marks upon the hickory stump, as is claimed by plaintiffs an intentional destruction of land marks ; the alleged declaration of Brawley that they took the ore because they thought they had bought it; the alleged declaration of Mr. Watson to Loudon and Dysart, “that they knew they were over, but not so far over as plaintiffs thought they were ;” the aversion of defendants’ agents to permit access to the mine while the work was going on ; all these are claimed by plaintiffs to be facts proven in the evidence, and as tending to show either a wilful and intentional trespass, or one, the result of gross and culpable negligence.
    You will then give attention to what is urged in answer to this evidence.
    Defendants claim that even if the line run by Gwinbe the true line, Lytle did not find it the first day he attempted to find it; that while some of the witnesses for plaintiffs claim to have fixed the Gwin line as the “Reed line,” Africa, a competent surveyor, does not agree with them, and cannot with certainty determine its exact location ; and where competent surveyors, after careful and elaborate investigation, differ as to the line, they may easily have been honestly mistaken as to its true location ; and that, not only were they ignorant that the Gwin line was the true line when they located their slope, but that they do not now know it to be such ; Brawley testifies he did not know it to be the line when he commenced work, and did not suspect, until late in the fall of 1870, that they were over the line; that then he only had doubts, and did not know that they were over; that, when he located the slope, he commenced a sufficient dislance from where he thought the line was. You heard, and will remember Brawley’s testimony ; what is urged against his credibility on part of plaintiffs, and what he and defendants urge in explanation of apparent contradictions. Mr. "Watson also testifies that he did not say to Loudon and Dysart they knew they were over the line ; that in lact he did not know it, and that as soon as he had reason to believe they were over, he ordered the work to be stopped. Defendants deny that they destroyed the line marks, the hickory stump and the sugar; and they urge further that the air shafts gave notice of the locality and extent of their operations under ground to all persons, thus rebutting any evidence on part of plaintiffs, tending to show concealment.
    Defendants further claim that, let the “Reed line” be where it may, David Robinson, the former owner of the land, pointed out the fence as the line to Hartsoek and Brawley, and they, believing him, located the slope and conducted the mining operations under that belief; you will also remember Robinson’s declarations to Judge Caldwell and John McGinnis, as to the fence being on the line. From McDonald’s calculation, as you remember, only 673 tons were taken out west of the fence.
    Robinson states in his examination when first called, that he never said the fence was on the line, but only that it was near the line.
    If Robinson misled the defendants by his declarations caused them to believe the fence was the line, and under that belief they took out ore west of the line, although a trespass on their part, it would not be one which would be visited with vindictive damages. The measure of damages for ore thus taken out, would be only the value of the ore at the mouth of the mines, after deducting the expense of mining.
    [If the weight of the evidence satisfies you that the defendants wilfully, knowing they were upon the lands of plaintiffs, took out ore, or that they were guilty of gross negligence, that is recklessly, taking no trouble to ascertain the line, such as ordinarily prudent men should have taken, not knowing or caring where the line was, went on, and removed the ore west of the line, and were not misled by Robinson, then the measure of damages for the ore so taken, is the value of the ore at the mouth of the mine without any deduction for expense of mining; or for any portion thus wilfully, or through gross negligence taken, the measure of damages is the value of the ore at the mouth of the mine without any deduction for expense of mining.]
    If the weight of the evidence fails to satisfy you that the defendants either wilfully trespassed, or were guilty of gross negligence, then, what is the value of the ore at the mouth of the mine, after deducting all just expenses in mining it. Theywsi expenses for mining, is what it costs defendants to dig and place it at the mouth of the mine; such expense as the wages of miners, mule drivers, engineers, oil, running air shafts, and interest on capita] invested, and expense of additional engines or machinery to take out this ore; but it seems to us under the circumstances, it would not be a proper deduction, to allow interest for. investment in these engines ; they were constructed to raise the ore from defendants’ land, not plaintiffs’; they are there yet to be used for that purpose; this is, however, a question for you and not for us.
    Mr. "Watson testifies it cost defendants $5.38 per ton to mine the ore, and place it at the mouth of the mine ,’ in this calculation he includes the interest on their entire investment.
    The plaintiffs allege that after a just deduction for cost of mining, there would still be left $2.00 as the value of the ore per ton at the mouth of the mine. The royalty for such ore is stated by some of the witnesses to have been, several years ago, 25 to 50 cents per ton. This evidence, where the ore spoken of is of the same quality, and no more difficult of access than this, would be evidence tending to show the fair value of this, after deducting the expenses of mining.
    The defendants contend that after deducting the expense of mining this ore, nothing is left — in other words, that it cost more than it was worth to mine it, and therefore, in fact, the plaintiffs are not damaged at all. While this view of the evidence is material, as bearing on the amount of damage, it would not be sufficient, if correct, to save the defendant’s from a verdict in some amount. If it was the plaintiffs’ ore, and they did not choose to have it taken out, it was their right to keep it there, whether it was worth little or much, and if defendants, without their consent, took it, they trespassed on plaintiffs’ right, and are liable in damages in some amount, if only nominal.
    It is alleged by the defendants that plaintiffs at first only demanded 75 cents per ton, and it appears from the declaration originally filed in this case, that plaintiffs claimed only 8000 tons, valued at $6,000.00. The amount of plaintiffs demand in the declaration first filed, is evidence tending in some slight degree, to show the quantity and price; but this does not conclude the plaintiffs. If, after filing the declaration in this suit, they discovered the quantity taken was greater than they supposed it was, or that the nature of the trespass was different from that first complained of, they are now at liberty, after having properly amended the pleadings, to increase the amount of their original demand.
    
      We do not see that we can give you any further aid in making up your verdict in this case; the evidence has been very patiently heard by you in the last five days; the parties have spared no time or trouble introducing evidence to sustain the issue on their respective parts. We have seldom seen a more careful and elaborate preparation of a case on both sides ; surveyors of ability and experience|have been called as witnesses to fix the surface line; careful and thorough underground measurements have been made; the result of their work has been conspicuously delineated on maps; careful investigation has been made by experienced miners to ascertain the quality of the ore; the weight per yard has been ascertained by the most accurate tests; all this testimony has been fully and ably discussed by the counsel; it only remains for you to weigh the evidence, determine the facts under the instructions we have given you, and so make up your verdict. The character of the parties suing and sued should have no bearing whatever in making up your verdict; to you they are simply plaintiffs and defendants in an issue you are sworn to try on the evidence, and as to parties to an issue, on the evidence you must determine their rights and liabilities.
    How many tons of ore did the defendants take from plaintiffs’ land ?
    Having answered this, then :
    What price should defendants pay for it ?
    Should your verdict be for plaintiffs, .you can add interest' u the amount from the date the ore was taken.
    June 23d, 1873, verdict for plaintiffs for $13,980.33.
    The company then took a writ of error complaining of the portions of the judge’s charge in brackets, and also in instructing the jury that for negligence of the company'or its employees, it was answerable in damages to the extent of the value of the ore at the mouth of the pit, without any deduction for expense of mining.
    They also complained that the court erred in not instructing the jury; that, in the absence of gross outrage, violence, or oppression, the plaintiff's were not entitled to more than compensatory damages, or a fair royalty on the ore taken.
    
      
      A. S. Landis and T. Banks, Esqs., for plaintiff in error argued;
    that Watson was the agent of the company and Brawley was only a servant. That the company was only bound to makecompensation for the negligence of its servants; and not liable to exem plary damages for any wrongful act of Brawley ; unless, it was specially authorized by the company. ‘‘A corporation is not responsible for unauthorized acts of its officers though done colore officii Commonwealth vs. Ohio & Penna. R. R. Co., 1 Grant 352, Hazleton Coal Co. vs. Megargel, 4 Barr 329, Vanderbilt vs. Richmond Co., 2 Comstock 479, 1 Hilliard on Torts 345. The value of the ore in place was the measure of damages, not what it was worth at the pits mouth. The result of the harsh rule applied by the Court below is seen in the verdict for about $14,000 for damages to half an acre of ground which was only worth $100 an acre.
    The defendants in error should not have been allowed to recover more than compensatory damages; Rose vs. Story, 1 Barr 197; Amer. vs. Longstreet, 10 Barr 148; Forsyth vs. Wells, 5 Wright 295; Herdic vs. Young, 5 Smith 178.
    
      Samuel S. Blair and D. J. Neff, Esqs., contra.
    
    A corporation is liable for the acts of its agents and servants in the scope of their authority; Story on Agency Section 308; Penna. R. R. Co. vs. Vandiver, 6 Wright 365; Phila. & Wilmington R. R. vs. Quigley, 21 Howard; Derby vs. R. R. Co., 14 Howard.
    The case of Hazleton Coal Co. vs. Megargel, 4 Barr has no application here.
    A corporation can only act through its officers and agents. Ardesco Oil Co. vs. Gilson, 13 P. F. S. 146; Frazier vs. Penna. R. R. Co., 2 Wright 110.
    Damages for mining out ore on the land of another, when done wilfully, should be measured by the value of the ore at the pit’s mouth; but when done innocently the actual expense of mining may be deducted; Coleman’s Appeal, 12 P. F. S. 252. Morgan vs. Powell, 3 Q. B. 278. Martin vs. Porter, 5 Meeson & W. 351. Wild vs. Holt, 9 Meeson & W. 672. Wood vs. Moorewood, 3 Q. B. 440. Bennett vs. Thompson, 13 Iredell (Law) 146. Forsyth vs. Wells, 5 Wright 251. Lyon vs. Gormley, S P. F. S. 261. Lykens Valley Coal Co. vs. Dock, 12 P. F. S. 232. Herdic vs. Young, 5 P. F. S. 178. United Merthyn Collieries, L. R. 16 Eq. 46. Maye vs. Tappan 23 California 306.
    It is only a modification of the rule that a wilful trespasser cannot acquire a title to property by changing its form as long as its identity may be established; Snyder vs. Vaux, 2 Rawle 425. Betts vs. Church, 5 Johns 348. Rice vs. Hollingsback, 19 Barb 664.
    
      Landis and Banks in reply:
    Martin vs. Porter and Wild vs. Holt, are not law in Pennsylvania; Forsyth vs. Wells, 5 Wright 291.
    Lyon vs. Gormley. Lykens Valley Coal Co. vs. Doch and Coleman’s Appeal do not decide any principle that rules this case.
    In Penna. R. R. vs. Vandiver the railroad company was held liable for the acts of its conductors on the ground of public policy. In Frazier vs. Penna. R. R. Co. the company were allowed to show that the Superintendent did not know the conductor was a reckless man.
    In Ardesco Oil Co. vs. Gilson, the case turned on what was due care and prudence by its officers. But a corporation will not be required to use the same degree of care in selecting miners and in mining near an adjoining tract as they would in choosing safe men to operate a coal oil refinery. '
   The Supreme Court reversed the decision of the court below on May 22, 1874, in the following opinion per

Gordon, J.

We discover no error in the ruling of the Court below, except in the insti’uction in reference to vindicatory damages. The jury were charged that if the evidence satisfied them the trespass was wilful or the result of gross negligence, the measure of damages would, in such case, be the price of the ore at the mouth of the mine, without any deduction for expense of mining. This was erroneous, because the Court thus fixed the measure of the punitive damages. That vindictive damages may be imposed upon a defendant when he has wontonly or maliciously invaded . the plaintiff’s property, cannot be doubted, but whether the defendant shall be so punished, and if so, to what extent, are questions peculiarly within the province of the jury : Nagle v. Mullison, 10 Ca. 48. The Court should, therefore, have said to the jury, after instructing them as they rightly did, that under the ordinary circumstances of a trespass ignorantly committed upon the plaintiffs’ land, the damages were to be measured by the value of the ore in place, if they believed the defendants acted in wanton disregard of the plaintiffs’ rights they might add to such damages so much as they might think reasonable in order to vindicate the wanton wrong so committed.

The Court having erred in the matter indicated the judgment is now reversed and a venire facias de novo awarded.

Note. — This case was tried again, a verdict for $14,000 rendered, and was taken to Supreme Court again and affirmed; 3 Weekly Notes of Cases 103.  