Berkey v. Berwind-White Coal Mining Co.
220 Pa. 65
Pa.
1908
Check Treatment

Lead Opinion

Opinion by

Mr. Justice Elkin,

The bill filed in this case asks for an injunction to restrain the appellants from mining and removing the coal underlying a certain tract of land therein described in such a manner as will do damage, present or future, to the surface by causing a subsidence or breaking thereof. The learned court below, sitting as a chancellor, on the filing of the bill, granted a preliminary injunction, which, after hearing, was made permanent. The real question involved in this case is one of remedy rather than of legal right. The controversy grows out of the assertion of the right upon the part of the grantor, who had sold *74and conveyed all the coal underiying the land in question, to restrain his grantee and its lessee, the appellant companies, from mining and removing the coal in such a manner as to do injury to the surface. The right to surface support was not expressly waived in the deed of conveyance, and, therefore, the owner of the surface is entitled to the benefit of the rule which imposes upon the underlying or mineral estate the servitude of sufficient support to the upper or superincumbent strata: Weaver v. Coal Company, 216 Pa. 195. This is the settled rule of law in Pennsylvania, and nothing said or decided in the present case is intended to weaken or modify it. Each party to this proceeding stands upon certain legal rights and the principal inquiry must be whether the appellee, under the facts produced at the hearing in the court below, is in a position to ask a court of equity to interfere by injunction. No general and unbending rule can be laid down in such cases. Much depends upon the facts of each particular case. Of course, if the injury complained of is irreparable so that it cannot be adequately compensated in damages, or if the act intended to be committed is in the nature of a trespass, or tort,' or if the wrong sought to be redressed amounts to a nuisance, which by reason of the persistency with which it is repeated, threatens to become permanent, courts of equity will interfere by injunction to prevent such wrongs: Commonwealth v. Railroad Company, 24 Pa. 159 ; Stewart’s Appeal, 56 Pa. 413; Allison’s Appeal, 77 Pa. 221; Bitting’s Appeal, 105 Pa. 517; Walters v. McElroy, 151 Pa. 549. The present case does not come within the reason or spirit of the rule announced in these cases. Under the facts of the case at bar it cannot be successfully contended that the injury is irreparable, at least in the sense that it cannot be adequately compensated in damages and certainly the mining and removing of coal by the party who owns it and has the right to remove it, and whose operations are conducted by the most approved methods known in mining operations, cannot be said to be a trespass, or tort, or nuisance, within the meaning of the rule of the above cited cases in which equitable relief has been granted. In the above cases the respondents were trespassers without any right of property in the thing injured, while in the present case appellants are the owners or lessees of the coal with the right to *75remove it. It may be that under the rule of our Pennsylvania cases the doctrine of the balancing of equities or of comparative values, should have no controlling weight in the determination of the rights of the parties to this proceeding. It must be conceded that this doctrine has not been favored in our state, although it is recognized in other jurisdictions and supported by text-writers very generally. Our courts look more to the exact legal rights of the parties than to the equities that may exist between them, even when these questions are raised in a proceeding in equity. We do not understand, however, that it has ever been held that the doctrine has no application at all, but rather that such considerations will not prevail against the legal rights of the parties when definitely ascertained. It is difficult, if not impossible, to lay down any rule relating to proceedings in equity, or to state general principles applicable thereto, which should be held to operate conclusively on the mind of a chancellor under the facts of a particular case. The decree of a chancellor is of grace not of right, and he is not bound to make a decree which will do more mischief and work greater injury than the wrong which he is asked to redress : Coal Company v. Mellon, 152 Pa. 286. Each bill filed is a prayer to the conscience of a chancellor. The whole system of equity jurisprudence is founded on the theory that the law, by reason of its universality, is unable to do justice between the parties, and that equity, not being bound by common-law forms and pleadings, has more elasticity and can better reach this end. It seems like doing violence to the whole system to ask a court of equity to do an inequitable thing. In every case, to some extent at least, a chancellor must take into consideration the equities existing between the parties: In our state we have never departed from the settled rule that equity will not interfere when there is an adequate remedy at law. It is often difficult to determine whether the remedy at law is adequate, and in passing upon this question equity jurisdiction has been extended from time to time by our courts. A court of equity in passing upon/ the question whether the remedy at law is adequate, should have due regard to the situation of the parties. The case at bar is an illustration. The appellee sold and conveyed all of his coal to one of the appellants, which leased it to the other, and has been paid the consideration in full. By his express *76covenant the mining company is given the right to mine and remove all the coal, so that when in the prosecution of its mining operations it undertakes to mine and remove the entire stratum it is only doing what the appellee in the express language of his covenant said could be done. A rule of law, as old as the commonwealth, comes to his aid by charging upon' the underlying mineral estate the servitude of surface support, in the absence of the waiver of this right in the grant. The law has thus done for him. what he has not done for himself. Of course, he is entitled to have his rights protected, no matter how they arise, but his vendee and its lessee, the appellants here, on the other hand, must also be protected in the enjoyment of the rights acquired under the deed of conveyance. This was the situation of the parties at the time of the filing of the present bill. The appellants had the title to all the coal, with the right to mine and remove it. The appellee, under the rule of law, above referred to, had no title to the coal or any part of it, but only the right to have his surface sufficiently supported. In a sense both parties are standing upon their legal rights. It was not for appellee to say how much coal should be mined and removed, because the coal did not belong to him. He can insist upon his right to have the surface reasonably supported and if this is not done and injury results by failure in this respect, he can recover damages to the full extent of the injury done. Hone of our cases have gone further than this up to the present time. We are now asked to take a step in advance by recognizing the right of the owner of the surface to proceed in a court of equity to restrain the owner of the coal from mining and removing it in such a manner as may cause subsidence or breaking of the surface. .In other words, the court is asked to restrain a mining company from mining its own coal because it may reasonably be anticipated that the removing of the coal will cause a subsidence or breaking in the surface. Such a remedy would be a proper one if the facts of a particular case, warranted such intervention. If the threatened injury is of an irreparable character which could not be compensated in damages by an action at law ; or if buildings or other permanent improvements would be endangered; or if overlying strata of coal, or other mineral estate, would be seriously and *77permanently disturbed or displaced, by the mining of all the coal, it is clear equity would in proper case intervene to restrain such acts, even before the injury had been done. But none of these conditions are shown to exist in the present case. The coal has already been mined from the lower and more level parts of the tract and the coal yet to be mined is overlaid with a hilly surface furnishing a covering from 200 to 250 feet thick. The vein of coal varies from three feet six inches to four feet in thickness, and the evidence produced at the hearing, as well as the experience of all those familiar with mining operations, shows that very little, if any, damage will be done that part of the surface by mining and removing the coal. The loss of springs of water is principally relied on by complainant to show damage to his surface, but the evidence is not sufficient, in our opinion, to establish the fact that the springs were affected by failure to furnish surface support. Springs of water are frequently affected by the mining of coal even when the surface is properly supported, and under the facts of the present case the weight of the evidence would seem to show that failure to provide surface support was not the cause of the springs drying up. As to the buildings, the evidencep-s clear that the coal has not been mined from under the same, and, therefore, it cannot be said that any damage has been done to them from this cause. If at any time the appellants should undertake to mine the coal from under the buildings, or other permanent improvements on the tract, the owner could prevent the same by injunction. The appellants deny that they have mined the coal from under the buildings and aver that it is not their intention to do so, and under these facts a case for equitable relief is not made out in this respect. The evidence fails to disclose any threatened injuries of the character above indicated, and in our opinion the rights of the parties can be fully protected by an action at law. As was said in Pringle v. Vesta Coal Company, 172 Pa. 438: “If the owner of the coal undertakes to mine and remove it, as he has an undoubted right to do, and damage results to the surface, either (a) from negligence in conducting his mining operations, or, (b) from failure to properly and sufficiently support the surface, or (c) from both these causes combined, the surface owner is entitled to recover compensation for such injury as *78he may show he has sustained.” To entitle a plaintiff to an injunction he must make out a plain case of injury and damage. If the injury be doubtful, eventual or contingent, equity will not interfere by injunction: Rhodes v. Dunbar, 57 Pa. 274. A chancellor will consider whether he would not do greater injury by enjoining than would-result from refusing and leaving the party to his redress at the hands of a court and jury : Richards’s Appeal, 57 Pa. 105 ; Huckenstine’s Appeal, 70 Pa. 102. The present case certainly comes within the spirit, if not within the express language, of the rule laid down in the cases just cited.

We, therefore, hold that for any damage done the surface in the past the complainant has his action at law ; that as to the threatened injury to the surface in the future he has failed to establish such facts as would warrant a court of equity to interfere by injunction ; and that, for injuries past, present and future so far as disclosed by the evidence in the present case he has a complete and adequate remedy at law to redress any wrongs that have been or may be done him.

Decree reversed and bill dismissed, all costs to be paid by appellants.





Dissenting Opinion

Mr. Justice Mestrezat,

dissenting:

The conclusion of the majority of the court is not in accord with professional opinion in the bituminous coal district of the state. It substantially overrules the principle settled bjr all our cases that, unless otherwise stipulated by contract, the owner of the surface is entitled to absolute support from the owner off the underlying or mineral strata, even if the latter be required! to leave in place the entire mineral estate. This principle conceded in the majority opinion to be well established, but it is claimed that the question involved in the case is one of remedy rather than of legal right. This seems to me a most singular proposition, when the bill filed in this case by the plaintiff is to restrain the defendant company from mining and removing the coal underlying the plaintiff’s surface, and thereby causing the surface to be destroyed, which, it is conceded, the defendant has no right, either at law or in equity, to do. It is not a question of one of two remedies; it is rather a question of whether the legal right of the plaintiff *79to absolute support for his surface shall be enforced by the only court whose process can furnish a remedy entirely adequate to the injury which will follow the illegal acts of the defendant company. When a party’s rights at law are admitted, or settled by an action, equity will always interfere to protect those rights, unless there is a complete legal remedy which is entirely adequate. And we have also distinctly held that the rule as to enjoining irreparable injuries only has no application to acts, especially corporate acts, entirely without authority, for which there is no adequate measure of damages at law: Groff’s Appeal, 128 Pa. 621. Here, the legal right of the plaintiff to surface support is' admitted, and if the defendant is permitted to mine and remove the coal without furnishing absolute support for the surface, the entire surface may be broken in such manner as to do irreparable iujury or damage, and for which the law furnishes no adequate measure of damages. This makes a clear case for the intervention of a court of equity.

It is futile for this court, as it does, to hold that the plaintiff is entitled to absolute support of his surface, if the court is to deny him a full and complete remedy to enforce that right. It is a denial of the right for a chancellor to refuse to restrain-the defendant from removing all the coal and permitting the surface to subside. It is not sufficient to say that if the defendant removes the coal and causes a subsidence of the surface, the plaintiff may bring an action at law for damages. The subsidence of the surface would result in the destruction of the plaintiff’s crops and buildings, and practically deny him the use of his surface. The result would, therefore, be disastrous to the plaintiff, and the remedy at law 'would be wholly inadequate.

It is also well settled that equity will interfere by injunction to restrain trespasses constantly recurring, and which threaten to continue: Scheetz’s Appeal, 35 Pa. 88; Stewart’s Appeal, 56 Pa. 413; Keppel v. Lehigh Coal and Navigation Co., 200 Pa. 649. And in such cases it is no objection to the jurisdiction of a court of equity that the injured party may have a remedy at law: Walters v. McElroy, 151 Pa. 549. The principle of these cases clearly rules the case at bar against the appellant. ' As the mining progresses the surface will be *80cracked and subside, and each day will result in one or more causes of action, until the coal has all been removed. The trespasses will, therefore, be constantly recurring, compelling the plaintiff, even if an action at law is adequate, to redress his injuries by a multiplicity of suits. It is apparent from these facts that equity is the proper remedy for redress of the plaintiff’s injuries under the established practice of this state.

The difference in the value of the nine-foot vein of coal and the surface is so great that it will warrant the owner of the coal in removing the entire body of it at the risk of any action at law which the owner of the surface may institute against him. In some counties in the western part of the state, the bituminous coal region, the value of the surface is from $50.00 to $100 per acre, while the nine-foot vein of coal underlying the surface is worth $500 to $2,000 and upwards per acre. The owner of the coal, therefore, can well afford to remove the entire body of it if he is only required to respond for the injury done in an action at law. He can afford to remove his coal if it causes the destruction of the buildings, the waters, and the crops, if he is compelled to pay only such an amount, as may be recoverable at law. I think it clear the uncontroverted facts show that such damages would be an entirely inadequate compensation for the injuries which are a necessary consequence of failing to properly support the surface. The removal of the coal being without the shadow of authority and an invasion of the conceded legal rights of the surface owner, it is in the face of all our decisions on the subject to say that a chancellor has no jurisdiction to entertain a bill to preserve the integrity of the plaintiff’s surface.

The ruling in this case will injuriously affect not only the owner of the superincumbent surface, but also the owners of all veins of coal lying between the nine-foot or river vein and the surface. If the owner of the nine-foot vein may remove it, being liable only in an action at law .for damages, he likewise is responsible onty in an action at law to the owner of the ñve-foot or lesser vein of coal lying above the larger vein. The effect, therefore, of this decree is to withdraw from the owner of the smaller veins of coal the remedy by injunction to protect his conceded legal right to have his vein remain intact, unbroken, and in a condition that it may be safely oper*81ated.. The only redress for such an invasion of the rights of the owner of the smaller vein is, under the ruling of this case, an action at law, the inadequacy of which is plainly apparent and is manifest upon a moment’s reflection. In the bituminous coal region of the state there are frequently two and sometimes three veins of coal beneath the surface which are owned by as many different persons or corporations. Notwithstanding the conceded fact in this case that the owner of the nine-foot vein has no /ight whatever to injure or damage the upper strata of veins of coal, this court now holds that if such injury or damage does occur the only remedy is an action at law, although the effect of such injury may be a total deprivation of the owner of his vein of coal. The prevention of such results is clearly within equitable jurisdiction.

This case is manifestly one for equitable intervention, and in my judgment the court below was entirely right in its decree restraining the defendant company from removing the coal in such manner as would damage the plaintiff’s surface.

Since writing the above my attention has been called to the recent case of de Saulles v. Percy Mining Company, 16 Pa. Dist. Rep. 684, decided in 1906 by the court of common pleas of the fourteenth judicial district. The question raised there is the identical question involved in this case, and the learned judge of that court after a very full and careful consideration of the question, citing numerous decisions and text-book authority in support of his conclusion, awarded an injunction restraining the owner of the coal from mining it without leaving proper support for the surface. The opinion in that case simply reflects the understanding of the profession in the bituminous coal region on the right of the surface owner to invoke the aid of a chancellor to compel the owner of the coal to furnish absolute support for the surface.

I would affirm the decree of the court below.