#### Roley Wright, Defendant in Error, v. Chicago-Herrin Coal Company, Plaintiff in Error.

(Not to be reported in full.)

Error to the Circuit Court of Williamson county; the Hon. Richard S. Farbatto, Judge, presiding. Heard in this court at the October term, 1913.

Reversed and remanded.

Opinion filed May 1, 1914.

Rehearing denied and opinion modified October 28, 1914.

Statement of the Case.

Action by Eoley Wright against Chicago-Herrin Coal Company, a corporation, to recover the value of coal alleged to have been removed by defendant from beneath lands owned by plaintiff. The defendant filed a plea of not guilty and also a plea of tender for the wrong done in the amount $42.35. The jury returned a verdict for plaintiff, and also in answer to interrogations specially found, that the fair cash market value of the coal at the top of defendant’s mine was ninety-five cents per ton, and that the cost of transportation *568per ton from the place it was mined to the top of the shaft was forty-five cents per ton. To reverse a judgment entered on the verdict in favor of plaintiff for $500, defendant prosecutes error.

Abstract of the Decision.

1. Mines and minebals, § 7 * —when finding as to cost of transportation of coal to top of mine warranted by evidence. In an action to recover the value of coal alleged to have been removed from beneath the land of plaintiff, held that a special finding of the jury that the cost of transporting the coal to the top of the mine was forty-five cents per ton would not be disturbed on the ground that the evidence showed the cost of transportation was more, where it appeared that according to the verdict plaintiff was allowed fifty cents a ton for the coal and that defendant made a tender of that sum per ton as the value of the coal.

2. Mines and minebals, § 7*—when finding as to amount of coal taken contrary to evidence. In an action to recover the value of coal removed from beneath plaintiff’s land by defendant, a special finding that 1,000 tons had been thus removed, on a verdict based on such finding, held to be manifestly against the weight of the evidence where it appeared that the evidence as to the amount of coal taken was based on surveys made by three different surveyors, two of whom were experienced mining engineers and the other not experienced in surveying mines, and that the jury accepted the survey by the latter, which appeared inaccurate on account of the instruments used.

Defendant urged as ground for reversal that the verdict and special findings were not sustained by the evidence.

Denison & Spiller, for plaintiff in error.

Neely, Gallimore, Cook & Potter, for defendant in error.

*

See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

Mr. Presiding Justice McBride

delivered the opinion of the court.