131 S.E. 712 | W. Va. | 1926
The plaintiff owns .9 of an acre of surface in Kanawha County. The defendant leases and for a number of years has operated the coal underlying and surrounding plaintiff's property. During the earlier years of operation the mine *16 was drained through the drift mouth, which is located three or four hundred feet below plaintiff. As the development of the mine progressed, drainage through the drift mouth became impracticable. In 1921 a shaft was sunk above plaintiff, and the mine water has since been pumped out through the shaft, from which it flows across plaintiff's lot. Prior to drainage from the shaft, the water from a well on plaintiff's land was soft and palatable; since then it has been hard and unpalatable. Except following heavy rains, the well water is now impregnated with the characteristic flavor of mine water, and the plaintiff is unable to use it. In 1923 defendant placed two electric power poles on plaintiff's property.
In an action for these trespasses, a judgment was rendered in the Intermediate Court of Kanawha County in favor of plaintiff for $175.00. Interrogatories answered by the jury show that $150.00 was assessed for damage because of the drain, and $25.00 for damage because of the power poles.
The right to drain the mine was granted in a partition deed between the heirs of Joseph Ruffner, to which deed both parties hereto trace title. That right is expressed as follows:
"It is hereby understood and agreed among the parties to this deed that subterranean and surface rights of way to the Kanawha River to get a perfect drainage for coal banks shall attach and are hereby granted forever to the several owners thereof, respectively, through, under and across over any or all of said tracts of land; but said ways and drainage ways shall be constructed as to be reasonable and just and so as to do no more injury to the land over which they may pass than can be reasonably avoided, each owner using said ways and constructing the same in a reasonable and prudent manner, it being the purpose of this partition to make the several tracts most available to the owners respectively with the least possible detriment to the others."
Plaintiff contends that since the defendant had located and used the drainway at the drift mouth, it had no right to change the drain to plaintiff's land except by mutual consent. *17
The contention is supported by the law generally applicable to such easements. Coal Co. v. Hatfield,
The defendant seeks to justify its use of the plaintiff's lot by the holding of this court in Preston Coal Co. v. Elkins Co.
Neither does the evidence disclose a right in the defendant to locate its power poles on plaintiff's land. Defendant offers two excuses for this trespass; one, that the poles are located on a roadway extending through plaintiff's property, the other, that the plaintiff offered no objection at the time the poles were set up. The evidence shows that the roadway in question had been used as such for more than twenty years, *18
but it does not appear whether the road was private or public. This court held in Lowther v. Bridgemen,
The plaintiff testified that at the time the poles were set up, he thought the defendant would pay him for the privilege. Further explanation of his failure to protest the erection of the poles was stopped upon an objection of defendant. Plaintiff was also prevented by the court's ruling on a like objection from giving an estimate of the damage occasioned by the defendant's drainway. The jury was accordingly without evidence upon which to base the amount returned in its verdict, and the case will have to be reversed and a new trial awarded.
The plaintiff's opinion on the amount of his damages was admissible under Hargreaves v. Kimberly,
Judgment reversed; new trial awarded. *19