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ATTORNEY-GENERAL u. DE MEL.
D. 0., Kalutara, 2,420.
■ sation—Principle of assessment.
The defendants wrongfully brpke through the limits of their plum-bago mine into the adjoining mine belonging to the plaintiff and gobtherefrom a quantity of the plaintiff's plumbago.
In an action to recover the value of the plumbago wrongfully dug andremoved,—
Held, the defendants were bound to make compensation in solido tothe plaintiff, and that the right estimate of the plaintiff’s loss, whichwas the measure of his damages, would be to ascertain the market valueof the plumbago at the pit's mouth on an average of prices whichruled between the dates of the beginning and end of' 'the wrongfulworking, and to deduct from it the actual cost per ton of severing theplumbago and raising it to the surface.
If the parties were unable to agree about the disbursements to bbdeducted, an account should be ordered and taken.
his was an action by the Attorney-General against thedefendants (of whom the first was the owner of the land,
the second and third were his lessees, and' the fourth and fifthwere persons who assisted in the works) for the value of plumbagosaid to have been wrongfully dug from Crown land.
The District, Judge found that the mouth of the pit lay partlyon the first defendant’s land and partly on Grown land; that theshaft of the pit sloped towards the Crown land; that all the plum-bago raised came from this shaft and its tunnels; that the Crownwas entitled to claim the value of the plumbago brought up, afterdeducting expenses; and that the total quantity of plumbagobrought up was worth Rs. 29,960, and the expenses incurredRs. 25,000. The Court gave judgment for the plaintiff against allthe defendants for the balance sum of Rs. 4,960. As the Crownclaimed Rs. 45,000 for 150 tons of plumbago, but got judgmentonly for Rs. 4,960, the District Judge ordered that parties' shouldbear their own costs. '
The plrintiff appealed.
The case was Srgued on 13th August, 1903.
Fernando, C. C.. for the appellant.—The Court below holds that83 tons were removed of the value of Rs. 29,000. It asked a witnessincidentally what the cost would be to bring plumbago up to thesurface, and though no issue had been framed on the point itdeducted the cost of mining and .raising and gave the Crown
judgment for Rs. 4,960 only. The Judge had rib right to go1903.
into the cost of mining at all. That was not one of the issues August 13in the case. The Judge holds that thedigging onthe part?rJ.fr^':-r t
of the first defendant was bond fide, but itis necessaryto deter-——
mine whether there .was negligence. The first defendant sentmen out to dig on the land without any plan or surrey. It wasfound that the mouth of the pit was partly on Crown land, andthat Crown land had been undermined.In such acase no
compensation was allowable for the costof mining.In Van
Cuylenberg v.Harmani« Vedarala working expenses were
allowed, because there was bond fides on the part of the defendant.■(Rdmandthan, 1875, p. 127.) But that judgment rests uponEnglish Law, which distinguishes between a man acting bond fideand a man acting mala fide or with negligence. In cases of goodfaith', the general trend of authority is that one will be entitled tosot off, not the cost of severing and raising the mineral, but simplythe expenses involved in converting it into chattel: that is, thebare cost of lifting it out of the ground. In the case of negligenceor mala fides he is liable in the■ whole amount of damages. TheRoman-Dutch Law should guide us in the present case, but thebooks available here contain nothing on the point. Martin v.
Porter (5 M. <& W. 351); Morgan «. Powell (3 Q. B. 278, 440);
Lynor Coal <£ Iron Co. v. Brogden (40 L. J. Ck D- 48). It hasnot been proved what the expenses of quarrying were. TheDistrict Judge has- awarded Rs. 25,000 on this account upon themere statement of the second defendant. There ought to besatisfactory proof.
Domhorst, K.C. (with him J. Pieris).—Plaintiff did not provehis measure of damages. Defendant need not have opened his de-fence at all. It was plaintiff’s duty to have proved actual damagessuffered by the Crown. In the case of United Merthyr CollieriesCo. (15 L. R. Eq. 46), the Vice-Chancellor allowed a deduction ofthe working expenses, including the cost of severing. Van.Cuylenberg v. Harmanis * Vedarala , reported in Rdmandthan,1875, p. 127, is a Full Court decision, and binds the presentSupreme Court. Even if the first defendant is liable in damages,his liability would not exceed the ground share 01 rent he* receivedfrom the’ two lessees. Lindsay v. 0. &. C. (Rdmandthan, 1860,p. 64). The lessees may be liable for the res’t (J. Lorenz, pp. 31, 37*90). The first defendant cannot be m&de liable, for the conductof the lessees. He exercised a legal right in leasing land whichcontained plumbago, alid there is no* proof of complicity on hispart as regards excavations in Crown land. As soon as it was
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1803. ‘intimated to him that there was trespass onCrownland he caused
August 13the work to be stopped.It is true that in the declaration required
Sepbvha l.by the Mines Ordinance.No. 2 of 1896, thepersonwho intends to
– ■■ ■open and work the minewas bound to givecertainparticulars, but
as Bonser, C.J., held in Wace v. Lewishamy (3 N. L. B. 360) thatsuch declarant should be the owner of the mine and no one else,the. first defendant had to make a declaration and became liableunder that Ordinance, but in the civil case the lessees are respon-sible for their own acts.
Fernando, in reply.—The landlord is responsible for the valueof the plumbago taken by his authority. He is'responsible to thesepersons in a civil suit for all malfeasances, even if he did notknow or forbid them.
DornhoTst.—No case has been cited to show that the landlord isresponsible for the torts of his tenants. This is not a case ofprincipal and agent. The first defendant did not know that themouth of the pit was partly on Crown land.
Cur. adv. vult.
1st September, 1903. Middleton J.—
This was an action by the Crown to recover the value of certainplumbago wrongfully dug and removed from Crown lands calledHumbuluwedandehena and Thunhawulhena, situated in thevillage of Migahatenna in the Maha pattu of Pasdun korale. Thefirst defendant was the owner of a land adjoining this land in thewest, and the second and third defendants were said to be hislessees for the purpose of mining on the first defendant’s land.
The fourth and fifth defendants were alleged to be agents ofthe first defendant for the purpose of receiving and removingthe ground share of the first defendant.
The DistrictJudge held that thedefendants did digand
remove from the Crown land in . question some 83 tons 15cwt. of plumbago to a value ofcRs. 29,960.24, but, on astatement of the second defendant that the expenses incurredby the defendant amounted to Rs. 25,960.24, deducted thissupa and gave .judgment for the diSerence amounting toRs. 4,960.24. c The plaintiff appealedfrom ihis judgmenton
< several grounds, but1 the main one relied on was that theCrown was entitled to jadgment for the whole amount claimedin the plaintupon the third issueagreed upon, whichdid
not raise the question whether defendants were entitled todeduct theirworkifig expenses, and that the evidenceof
the second defendant in regard thereto was inconclusive, and 1903.
that the basis of assessment should follow that adopted in Avgust 13
Marlin v. Porter (5 Meeson & Wehby 351).September1.
There was a cross appeal by the first, fourth, and fifth defendants Mdodustow,on the grounds (a) that it was not proved that any plumbagohad been taken by the defendants from Crown land; (b) that, evenif it had, the first defendant was not liable at any rate beyondthe extent of his ground share, inasmuch as the second andthird defendants were his lessees, and there was no proof thatthe first defendant authorized them to commit acts of trespassi or derived benefit from it; (c) that the liability of the fourth andfifth defendants had not been shown; (d) as to the principle onwhich the damages, if any, should be assessed.
In the course of the argument counsel for the Crown concededthat it could not be shown that defendants had acted otherwisethan bond fide, and dropped the question of culpable negligenceraised in the petition of appeal.
In reply to this Court also Crown Counsel deferred to its opinionthat there was no evidence to show any liability by the fourthand fifth defendants, who are accordingly dismissed from the
The main point, as counsel for defence puts it, is whether ithas been proved that defendants have dug and removed anyplumbago from the Crown land adjoining the first defendant’sland. Speaking as a juryman and looking at the survey and atthe evidence on both sides, I am of opinion that it points sostrongly to the conclusion that plumbago must necessarily havebeen extracted by the defendants by means of the shafts now filledwith water on the land of the Crown, and from the land of theCrown, that I hold that the District Judge was right in his findingon that point.
Following on this was the question, What was the amount ofplumbago extracted ?.
In the nature of things it was impossible for the Crown eitherto have proved this t or vrhat were the working expenses. Allthat could be done was to prove that some plumbago had beenextracted, and then to have an account from the defendants as
prayed in the plaint.,»,
The District Judge has, however, taken the first defendant’sacknowledgment as to the amount he received, as his ground shareof one-eighth as a basis for estimation ’of the whole. The Crownmakes no serious objection to this nor to the value per ton allowed,but opposes the acceptance of the second defendant’s estimate ofthe working expenses on his bare statement as inconclusive.
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I agree that the bare statement of the second defendant that theworking expenses were Rs. 25,000 was not sufficient for the Judgeto act on without further inquiry, and I think that an accountshould have been ordered and taken.
As, however, the Crown has not really objected to the Judge’sestimate of the amount extracted on the evidence of the firstdefendant, I think that this amount—t'.e., 83 tons 15 cwt. at a valueof Rs. 29,960.24—may very well be taken as a basis on which theassessment of damage may proceed.
We then come to the question of liability.
The first defendant puts the second and third defendants in theposition of his tenants or lessees, which they acknowledge, andalleges that by lteter (B) he informed the Government on Novem-ber 22, 1898, that he had leased certain mines, including one atMahagalpatala to Vitanege Appusinno, which is the name of thethird defendant. It appears that first defendant neglected to followthe direction of the Government Agent to make a formal declara-tion in, conformity with section 3 of Ordinance No. 2 of 1896, butleft his declaration (A) standing in the Kachcheri as if it werestill in force as a true statement of the condition of things at thistime.
There is no notarial lease in existence but a document (D 11),—mentioned in the notes as (D b),—the admission of which as a leasewas rightly objected to on the trial.
In my opinion it is not proved that the second and thirddefendants were tenants of- the first defendant, but that they wererather in the position of working in shares as a sort of partnership,an arrangement which is by no means uncommon in this country:the fourth and fifth defendants being appointed by the first tosupervise the second and third and to see that all the plumbagowas accounted for and duly divided.
The first, second, and third defendants having therefore all beenshown to have • participated in the removal and sharing of the.plumbago, and first defendant having failed to establish the statusof landlord and tenant as existing between him and secondand third defendants, I am of opinion that the District Judge wasright in holding the first, second, and third defendants boundto mak$, compensation in solido to the Crown.
We now come to the ‘question on what principle the compen-sation due to the Government for the loss of its plumbago is tobe assessed.c „
Mr. Fernando, for the Crown, does not put forward any basisoh which we should .proceed, but' invites our attention to Bdtna-ndthan, 1872, p. 127; Martin v. Porter (5 M. & W. 357);
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Attorney-General v. Tomlin (L. B. 5, Ch. D. 7Sd); Hilton v. 1903.Woods (36 L. J. Ch. D. 941); Llynor Coal and Iron Co. v. Brogden13
(40 L. J. 46).September l.
It is not suggested that English Law governs this case, but as Middieton,there is nothing in the Roman-Dutch Law to guide us we are at J‘liberty to act upon the principles relied on in analogous Englishcases. It was subsequently conceded by counsel lor the Crownthat the defendants cannot be shown to have acted otherwisethan on good faith in regard to their action in abstracting theplumbago. Counsel for the defence refers us to the case of In reUnited Merthyr v. Collieries Co. (15 L. B. Eg. 46) decided in 1872,in which the principle adopted in Hilton v. Woods decided in1867 was followed of allowing all disbursements.
I do not think it would be right or even possible for us to takeas a basis the fair price per acre of a bed of plumbago, as I amunder the impression that plumbago is not like coal, but lies inpockets, and it is not usual as it is with coal in the UnitedKingdom to sell it by the acre.
It would be difficult therefore, if not impossible, to value plum-'bago by the acre so as to ascertain the value in the ground, as ifthe plumbago field had been purchased from the Crown.
Under these circumstances I think the right estimate of theCrown’s loss, which is really the measure of damages, would be toascertain the market value of the plumbago at the pit’s mouth onan average of prices between August, 1898, and July, 1899, the dateon which it is admitted that the mining ceased, and to deductfrom this the actual cost per ton of severing the plumbago andcarrying or raising it to the surface. This was the principlefollowed in the case reported in Bamandthan, p. 127, and decidedby the Supreme Court on 11th November, 1875.
The parties ought to be able to come to an agreement as to theamount of the disbursements to be deducted, but if they are unableto do so within a month the case must go back to the District Judgethat they may be ascertained by evidence in the usual course.
Upon this being agreed to or ascertained, judgment for theplaintiff .will be entered for *the amount, but I would leave theorder as to costs in the District Court undisturbed.
As the plaintiff has practically succeeded in appeal, the'^ Crownmust have its costs of the appeal.
Gbenier, A. J.—
I agree with my brother Middleton in holding that the first,second, and third defendants did dig and remove from the Crownland in question about 83 tons and 15 cwt.’ of plumbago to the
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value of Rs. 29,960.24. The evidence appears to my mind to bereasonably conclusive that tbe plumbago was not taken from thefirst defendant’s land, but from tbe adjoining Crown land.
The only difficulty I felt was in regard to the assessment ofdamages. We were not referred to any authorities from theRoman-Dutch Law, but a case was cited to us from Rdmandthan’sReports for 1872, g. 127, in which this. Court indicated theprinciples upon which damages have to be assessed in a case ofthis kind, and which we are bound to follow in the absence of anylater decision over-ruling that case.
I agree with the order as to costs proposed by my brother, andwith the suggestion made by him that the parties should come toan agreement as to the amount of the disbursements to bededucted.
1 also agree that on the parties failing to come to such anagreement, the case must go back for evidence as to thedisbursements.
ATTORNEY-GENERAL v. DE MEL