#### MATTIE JOYCE JONES v. JOHN C. McBEE and Wife, MARGARET C. McBEE; HENRY GRINDSTAFF, S. W. BLALOCK and C. C. ROBINSON.

(Filed 14 October, 1942.)

1. Pleadings § 28: Minerals and Mines § 2—

Where tenants in common, under the erroneous impression that they owned the fee, removed $8,605.50 in value of minerals from the property, upon suit by the other tenant in common for damages alleging C. S., 6927, and admission by the defendants of the cotenancy, removal and value, plaintiff is entitled to judgment on the pleadings, though not to damages under C. S., 6927.

2. Damages § la: Minerals and Mines § 2—

In the absence of a willful or intentional trespass or conversion, the measure of damages is the value of the mineral as it lay in the mine, immediately after severance from the realty, with no deduction for labor in effecting the severance.

Appeal by defendants from Clement, J., at August Term, 1942, of YaNCEY.

Civil action to recover one-third of tbe value of minerals taken from certain lands in Stokes County, N. 0., in which lands, it is admitted, the plaintiff is the owner of a one-third undivided interest, and owned said interest at the time of the removal of the minerals in question.

The defendants, John 0. McBee and wife, Margaret 0. McBee, and Henry Grindstaff, purchased the lands in question at a tax foreclosure sale and were under the erroneous impression then and at the time of the removal of the minerals from said lands, that they had obtained a fee simple title to the entire property; whereas, in fact, they obtained title to only a two-thirds undivided interest in said lands. The defendants Henry Grindstaff, C. O. Bobinson and S. W. Blalock leased the premises for mining purposes and removed the minerals which are the subject of this controversy.

It is alleged by the plaintiff and admitted by the defendants that from 1 May, 1941, to 1 November, 1941, defendants removed and sold from said lands, valuable minerals commonly known as mica, of the value of $8,605.50. Defendants denied the right of plaintiff to recover anything for said minerals, except one-third of the customary royalty on the mica removed.

Upon motion of plaintiff’s counsel for judgment on the pleadings, the court held the plaintiff was entitled to recover the sum of $2,868.50, one-third of the value of all mica removed from said lands by the defendants. By consent of plaintiff, judgment was entered for only $1,630.78, less *153tbe sum of $80.00 for taxes paid by defendants on plaintiff’s one-tbird interest in said lands.

From tbe foregoing judgment, defendants appeal and assign error.

Frank P. Burton and Dallas G. Kirby for plaintiff.

Charles Hutchins for defendants.

Denny, J.

Defendants except to tbe refusal of tbe court to submit tbe case to tbe jury and to tbe judgment as signed, wbicb presents tbe question: Was plaintiff entitled to judgment on tbe pleadings?

Defendants contend in tbeir brief tbat because tbe plaintiff alleged sbe was entitled to recover under tbe provisions of C. S. of N. C., 6927, tbe defendants bad failed to plead in reduction of tbe damages claimed, tbe expenses incident to tbe removal and sale of tbe mica, wbicb expenses represented a large part of tbe gross receipts from tbe sale of said mica. Tbe defendants baving failed to plead tbe expenses incident to tbe removal and sale of tbe mica in question, or to move to amend in tbat respect, are now too late for tbeir contention to prevail. Besides, in tbeir answer they expressly challenged tbe right of plaintiff to recover under tbe provisions of tbe above statute, admitted all tbe other material allegations of tbe complaint, including tbe value of tbe mica removed from tbe lands, and elected to take tbe untenable position tbat plaintiff was entitled to recover only one-tbird of tbe customary royalties on tbe mica removed.

We agree with tbe defendants and bis Honor tbat plaintiff is not entitled'to recover under tbe provisions of C. S. of N. C., 6927, but we do think sbe is entitled to judgment on tbe pleadings.

Tbe further argument presented in defendants’ brief, tbat tbe defendant lessors in no event can be held to account for more than one-tbird of tbe royalties they have received, is not convincing. This Court in an early decision laid down tbe rule wbicb we think governs tbe rights of tenants in common in cases of this character. In Anders v. Meredith, 20 N. C., 339, tbe Court said: “Tbe possession of one tenant in common is tbe possession of tbe other; each has a right to enter upon tbe land and enjoy it jointly with tbe others. If one tenant in common destroys bouses, trees, or does any act amounting to waste or destruction in woods or other such property, tbe other tenant may have an action on tbe case against him. But be never can, in any event, have an action of trespass quare clausum fregit against bis cotenant. Co. Lit., 200; 1 Thomas Co. Lit., 785; 1 Obitty’s Gen’l Prac., 271. Tbe other defendants were not trespassers, as they entered and acted by tbe direction of Meredith.”

Where tbe owner, as in this case, waives tbe right to recover tbe mineral and elects to sue for damages, tbe measure of damages is tbe value of tbe mineral at tbe mine after its separation from tbe realty. *154This rule of damages for tbe conversion of minerals is aptly stated in 18 R. C. L., Mines, sec. 154, p. 1259: “Where neither the trespass nor the conversion is wilful or intentional, the measure of damages is the value of the mineral as it lay in the mine immediately after its severance from the realty, with no deduction for the value of the defendant’s labor in effecting the severance. The measure of damages for the conversion of ore by a purchaser from a trespasser has been held to be the value of the ore sold, together with a sum equal to legal interest thereon from the time of conversion, less the reasonable and proper cost of raising it from the mine after it was broken, and hauling from the mine to the purchaser’s place of business.”

This Court has held that where an action is brought to recover for damages for logs cut and removed by one in the honest belief on the part of the trespasser that he had title to t.hem, the measure of damages is the value of the logs in the woods from which they were taken, together with the amount of injury incident to removal. However, notwithstanding the good faith of the party removing the logs, he may not be allowed compensation for converting the trees into personal property. Wall v. Holloman, 156 N. C., 275, 72 S. E., 369; Gaskins v. Davis, 115 N. C., 85, 20 S. E., 188.

On the admission in the pleadings that the minerals sold were of the value of $8,605.50, and there being no plea in abatement of damages for expenses incurred in removing the minerals from the mine after severance and other costs incident to transporting and selling said minerals, the plaintiff was entitled to judgment for one-third of the above value. However, it appears in the record that the plaintiff consented to a reduction of the foregoing amount, and it is stated in plaintiff’s brief filed in this Court that the reduction was allowed to cover defendants’ expenses incident to the mining of said minerals. Therefore the reduction was apparently more liberal than required under the authorities herein cited.

The exceptions and assignments of error, as set out in this record, cannot he sustained.

The judgment of the court below is

Affirmed.