fact that when courts now give plaintiff this advantage they call it compensation.3

32

The rule which authorizes the jury in tort actions to take into consideration and to allow as part of the damages plaintiff's attorney's fees seems not to be founded on any sound basis. Many of the courts have repudiated it, and it seems destined to be abandoned by them all.

The court in Day v. Woodworth 33 very properly observed that where a rule of law exists allowing the jury to find costs in the shape of counsel fees in favor of the plaintiff, they should be permitted to do the same for the defendant when he succeeds in his defense, in order that the parties may be permitted to contend in an equal field.34 Numerous courts have decided against the allowance of attorney's fees as damages in such cases. In Winkler v. Roeder,35 the court said: "Damages being compensatory and not vindictive, we know of no rule that would require the allowance of attorney's fees in an action of tort and deny the same in an action on contract." 36

37

In Earl v. Tupper, the court said: "The great weight of authority seems to be opposed to the allowance of counsel fees and other expenses of litigation, beyond taxable costs as an element of damages, even in cases where exemplary damages are proper.

9938

32 But see The United Power Co. v. Matheny, 81 O. St. 204, on this subject. 33 13 How. 363 (U.S.), LEADING ILLUSTRATIVE CASES.

34 Barnard v. Poor, 21 Pick. 378; Lincoln v. Saratoga, etc., Railroad, 23 Wend. 425.

35 23 Neb. 706, 8 Am. St. Rep. 155.

36 Howell v. Scoggins, 48 Cal. 355.

37 45 Vt. 275.

38 Hoadley v. Watson, 45 Vt. 289; Henry v. Davis, 123 Mass. 345.

88. Malicious prosecution and false imprisonment. Where plaintiff sues for damages for false imprisonment or malicious prosecution by defendant in a former proceeding, evidence of all expense and attorney's fees paid by plaintiff in defending such previous litigation is admissible as compensatory damages.3

39

39 Zeigler v. Powell, 54 Ind. 173; Krug v. Ward, 77 Ill. 603.

CHAPTER XII.

DAMAGES WHERE PROPERTY IS SEVERED FROM REALTY.

89. Value of property attached to the land. The authorities which discuss plaintiff's measure of damages where his property has been wrongfully severed from the soil and converted, are not uniform. The question arises most frequently where coal has been wrongfully mined on the property of another, or where timber has been cut and removed without the right to do so. If the sole purpose of damages is compensation for the injury done, it would seem that it should not be difficult to formulate a rule upon which courts could agree. But so many elements enter into the question that it is by no means an easy matter to establish a rule on which all will unite. If plaintiff is permitted to recover the value of the coal or timber in its original condition attached to the soil, together with whatever damage defendant may have caused to the land, the parties would seem thus to be put in a just relation regarding the matter, and some courts have adopted this rule.40

Wherever this rule is adopted the damages may be shown by evidence of the value of the land before

40 Forsyth v. Wells, 41 Pa. St. 291; Irwin v. Nolde, 176 Pa. St. 594; Coal Creek M. & M. Co. v. Moses, 15 Lea. 300, 54 Am. R. 415; Chamberlain v. Collinson, 45 Ia. 429.

and after the removal of the coal or timber. Or if the correct result is more readily reached in that way, damages may be determined by showing the value of the coal or timber, fixed to the soil.*

41

90. Value when converted.-Many of the courts, however, have adopted a more liberal rule toward plaintiff on the theory that the property still belonged to him after the severance, and that it could not be converted while realty, and that defendant should be held responsible for its value at the time he converted it, regardless of the value of the labor in severing it from the soil. In Ivy Coal & C. Co. v. Alabama Coal & C. Co.42 the court said: "It is to our minds wholly illogical to say to a plaintiff in such a case that the property was wholly his, that it was the same value to him as if he had himself dug it from the earth or purchased it from its owner, and that in actions of trover the whole theory of the law is to give to the owner at least the value of his property that has been converted, yet because the defendant has committed the wrong of digging out this coal, his further wrong of converting it to his own use shall operate to deprive the plaintiff of the value of his coal." The court held plaintiff's damage to be the value of the coal as it lay in the mine, immediately after the severance from the realty, with no deduction for the value of defendant's labor in effecting the severance.

41 Ayres v. Hubbard, 71 Mich. 594; Chipman v. Hibberd, 6 Cal. 162. 42 135 Ala. 579, 33 So. 547, 93 Am. St. Rep. 46. This rule is adopted in a number of the states and seems to be growing in popularity. Cheeney v. Nebraska & C. S. Co., 41 Fed. 740; Donovan v. Consolidated Coal Co., 187 Ill. 28, 79 Am. St. Rep. 206; Franklin Coal Co. v. McMillan, 49 Md. 549, 43 Am. St. Rep. 560.

91. Willful taking by defendant.-But the question is sometimes complicated with the additional inquiry of whether defendant's willful taking of the property should add to the amount of damages plaintiff may recover from him. Leaving out of view the rule of exemplary damages, many courts hold that if defendant willfully took the property, this fact entitles plaintiff to recover the full value of the property, deducting nothing for plaintiff's labor thereon.43 In Ellis v. Wire the defendant forcibly took possession of plaintiff's wheat as it stood in the field, and harvested it and sold it. The defendant was held for its value at the time he sold it. He was not permitted to prove the value of his labor in harvesting and threshing the crop, for the purpose of reducing the damages.**

92. Liability of purchaser from trespasser. It is also generally held that a purchaser from a trespasser may be required to respond to plaintiff for an amount equal to what the trespasser himself would have been required to pay for conversion of plaintiff's property. If the trespasser, being innocent, can reduce the damages by showing the value of his labor on the property, this evidence is also admissible on behalf of the purchaser. But if the trespass was willful, then the evidence is excluded, on the ground that the purchaser has taken the place of the trespasser in relation to the goods.

43 Powers v. Tilly, 87 Me. 34, 47 Am. St. Rep. 304; Wooden Ware Co. v. United States, 106 U. S. 432; Tuttle v. White, 46 Mich. 485, 41 Am. Rep. 175; Nesbitt v. St. Paul Lumber Co., 21 Minn. 491; Parker v. Waycross, etc., R. R. Co., 81 Ga. 387; Baker v. Wheeler & Martin, 8 Wend. 505, 24 Am. Dec. 66 and note.

44 33 Ind. 127.