“The defendant in effect would have us eliminate the distinction drawn between innocent and wilful trespassers so far as recoverable damages are concerned. We consider that the elimination of this distinction would be unsound.”
How later courts described this case
- “The defendant in effect would have us eliminate the distinction drawn between innocent and wilful trespassers so far as recoverable damages are concerned. We consider that the elimination of this distinction would be unsound.”
Written by the judges who cited it.
The opinion
MR. JUSTICE UNDERWOOD, concurring in part and dissenting in part:
I agree that the lease had terminated. In my opinion, however, the appellate court correctly held the trial court should have submitted to the jury the question whether defendant was a good- or bad-faith trespasser. The company had not acted completely arbitrarily in proceeding to mine the coal; it had consulted both its house counsel and independent counsel, and both had advised that the lease was still in effect; defendant apparently knew that similar suits against it by other plaintiffs in the same county had been dismissed by the plaintiffs; and the company had reached the point in its mining operations where it either had to mine plaintiff’s coal or permanently bypass it. In these circumstances, I simply cannot say that defendant’s bad faith has been so conclusively demonstrated that the issue should have been taken from the jury.
I agree, too, with the remedy fashioned by the appellate court in the form of a remittitur in lieu of a new trial. That remittitur left plaintiffs with a judgment for the total profit realized by the company and was in an amount approximately 50 times greater than the new lease, which plaintiffs were apparently willing to negotiate, would have produced.
MR. JUSTICE RYAN joins in this partial concurrence and partial dissent.