the consideration of any additional benefit to be derived by the plaintiff from using the land, at some future time, for some purpose other than as a site for villas. But the jury meant to include in that sum every injury, whether direct or merely incidental and collateral, that could have accrued to the land, considered as building ground. No doubt, it is a maxim of law, " Omnia præsumuntur contra spoliatorem;" but that maxim only applies to cases in which there is, peculiarly within the knowledge of the defendant, some fact which he concealed. In that case, the jury must give the highest possible value to the article, as against that party: Armory v. Delamirie (a). But where there is no fraud on the part of the defendant, the presumption is against the plaintiff: Clunnes v. Pezzey (b). H. H. Joy and Harrison, contra. The maxim" Omnia præsumuntur contra spoliatorem" does apply here, because the witnesses proved that the abstraction of the soil had been going on for some years without the knowledge of the plaintiff; and, if both the sums claimed by the plaintiff are not given him, the defendant will repay the costs and damages recovered on the first count by the profit of making the clay into bricks, and selling them, although that clay became a chattel the instant it was severed from the land; and, as such chattel, was undoubtedly the property of the landlord, the plaintiff. The plaint contains two paragraphs, framed upon two distinct rights of action, in respect of each of which the plaintiff is entitled to recover damages. The landlord's right to recover the value of the chattel, under the paragraph in trover, cannot be questioned. Then he has also a right to recover damages for the distinct injury done to the reversion, these damages being claimed in a distinct paragraph. The land was injured, not only by the actual removal of the clay, but also by the manner in which the clay was removed. Had the present defendant been a trespasser, instead of being a tenant, the actual tenant would have been injured by the removal of the soil; and the landlord would have sustained another injury in respect of (b) 1 Camp. Rep. 8. 3 L (a) 1 Str. 504; S. C., 1 Sm. Lead. Cas. 301. VOL. 15. E. T. 1862. TEMPLEMORE v. MOORE. Queen's Bench TEMPLEMORE v. MOORE. E. T. 1862. his reversion in the land, as building ground. When a tenant cuts down ornamental timber, the landlord is entitled not only to the value of the timber as a chattel, but likewise to compensation for the indirect injury done to him by the tenant's wrongful act, quite irrespective of the selling value of the timber.-[O'BRIEN, J. If the landlord, in that case, received £20, as the value of the timber when cut, and its value as ornamental timber standing on the estate was £500, surely he would not be entitled to get £520? Should not the jury subtract the former from the latter sum; and give him, either £500 for both injuries, or £480 for one of them and £20 for the other, if they awarded damages on separate counts?]-But in the present case the defendant committed a further injury, by altering the levels, and by removing the clay in such a manner that it was impossible to ascertain accurately the extent to which the landlord had been injured. The plaintiff is entitled to both sums, as he might have used part of the land as a site for villas and part as brick-clay. The landlord has been further injured by being deprived of his option at what time he would use the land in one capacity and at what time he would use it in the other. That option was capable of being measured in moneys numbered, as the value of the brick-clay would have increased after a little time, when villas were being built in the neighbourhood. In Morgan v. Powell (a) the plaintiff was held entitled to damages, as well for all injury done to the soil by digging, and for the trespass committed in dragging the coal along the plaintiff's adit, as also for the value of the coal itself when severed. The jury have separated the value of the ground from the value of the clay, as such, and the sum of £156 does not include the value of the clay as a chattel. The two paragraphs are entirely distinct.-[FITZGERALD, J. Could not the plaintiff have given all the evidence, both as to the present value of the clay and as to the depreciation in value of the land, under the first count?]The defendant, having paid money into Court, on both counts, cannot raise that objection, even if it were well founded. But it was necessary to insert in the plaint a separate count in trover, which is the proper form of action in which to sue for the chattel value of (a) 3 Q. B. 278. the clay: Higgon v. Mortimer (a). In an action of trespass, damages for both injuries might have been recovered. If a tenant cuts down a tree, which is excepted from the lease, the landlord could recover, under one count, both for the trespass in cutting down the tree and also for the value of the timber. But evidence as to the value of the clay could not have been given under the first count in this plaint, which is simply a count for an injury to the reversion. The form is given in B. & L. Precedents, p. 229. Separate damages must be given for the trespass and for the injury to the land by the digging: Mayne on Dam., p. 239. Hugh Law, in reply. The first count includes the second count, and something else besides. No complaint is made in it of injury done to the land by the mode of removing the clay; nor was there any evidence to support that view. No proof was given that the clay was unskilfully removed, but simply that the unavoidable consequence of its severance and removal injured the land. The plaintiff says that, if the jury find that the deterioration of the property amounts to so much, and the value of the clay amounts to so much, when estimated separately, these two sums, when added together, represent the amount of his loss. But the value of the clay is, of necessity, part and included in the amount of the deterioration; so that the plaintiff would get double damages, the value of the clay twice over, if both sums were given him. The plaintiff himself, if in possession of the land, could not have enjoyed it in its undeteriorated condition, and also at the same time have got the price of the clay as a chattel. E. T. 1862. TEMPLEMORE v. MOORE. Cur. ad vult. On a subsequent day, the Court desired that the case should be re-argued by junior Counsel on each side, principally with reference to the question whether it was open, on the pleadings as they stood, to the plaintiff to go for two distinct species of damage. Accordingly, on the last day of Term May 5. (a) 6 C. & P. 616. E. T. 1862. TEMPLEMORE v. MOORE. Harrison, for the plaintiff, contended that the plaintiff had a right to obtain damages under both counts. The first count is for conversion of the clay, with an injury to the reversion; and, after verdict, and evidence unobjected to at the trial, the count sufficiently expresses on its face a cause of action, which enables the plaintiff to recover, both for the value of the clay and for the injury to the reversion, unless he has recovered pro tanto under the count in trover. It has been contended that the plaintiff has no right to get both sums, because he himself could not have obtained both values from the land. A tenant has no right to argue thus against his landlord; for he admits that he has done two wrongs, but recoups himself out of the profit derived from one of these acts for the damages recovered against him in respect of the other. Although the first count is framed under the new system of pleading, it is in substance the same as the precedents in 8 Wentworth on Plead., p. 587, and 2 Ch. Pl. (5th ed.), p. 784, at the end of each of which is a direction to add a count in trover, showing that the plaintiff could not have recovered, under the counts for injury to the reversion, the present value of the goods carried away.— [FITZGERALD, J. For a moment, lay aside all consideration of the second count. Then the true foundation of the first count is, that the plaintiff is entitled to recover on it such an amount as will place him in the same position as if the wrongful act had not been done. But there is no evidence that the plaintiff could ever have used this land for building purposes and also for brick-clay.]-The wrongdoer has no right to use that argument.-[FITZGERALD, J. He has no right to use it in justification of his conduct, but he may use it to reduce the damages.-LEFROY, C. J. The two things are quite separate, and could be enjoyed separately. Had not the landlord a right to get back his land in a condition which would enable him to use the land now in whatever way he pleased, and to defer using it as brick-clay until the time came when it would be more valuable ?—Yes; and it was open too for the plaintiff to show that the clay could have been removed without injuring the surface.— [FITZGERALD, J. That objection might be a ground for a new trial motion; but not for the present motion, which is merely to TEMPLEMORE v. MOORE. increase the damages.]-At all events, without the count in trover, E. T. 1862. Queen's Bench the present value of the clay could not have been recovered: Higgon Mortimer (a); Cotterill v. Hobby (b).-[FITZGERALD, J. I do not see how the case can be properly determined without a new trial; for the question was left to the jury wrongly. They should have been directed to include the present value of the clay in the finding on the first count.]-The request for a new trial should come from the defendant. The plaintiff gave no evidence as to the reversionary value of the clay. R. W. M'Donnell, contra. The defendant did not object to the evidence given, because he admitted that the plaintiff was entitled to get the best value which he himself, if in possession, could have extracted from the land; and was therefore entitled to lay before the jury all evidence necessary to enable them to determine which value was the highest. But the plaintiff is not entitled to recover all three values, unless he proves that he could have used the lands for all three purposes simultaneously. The jury have included the present value of the clay in their estimate of the loss of the prospective value of the land. Had they found what would have been the value of the clay after the ground had become useless as a site for villas, those two sums should have been added together. But there has not been any separate assessment of the reversionary value of the clay. It has been said that the defendant, the tenant, is not at liberty, after committing the wrongful act, to argue that the landlord could not have used the land simultaneously for more than one purpose; but it lay on the plaintiff to prove affirmatively that the land could have been so used. Without such proof, he cannot recover: Mercer v. Whall (c). The first count is in trespass, with an asportavit to increase the damages. In such a case as this, a count in trover is inconsistent with the first count. They cannot subsist together, because the future value of the clay must be included in its present value: Lechmore v. Toplady (d). (a) 6 C. & P. 616. (c) 5 Q. B. 447, 465. If counts in trover (b) 4 B. & Cr. 465. (d) 1 Show. 140. |