130 S.E. 132 | W. Va. | 1925
There has been certified to us by the circuit court questions involving the correctness of its rulings on defendants' demurrers to the declaration and plaintiff's demurrer to the special plea filed in the action.
The declaration alleges that the plaintiff is the owner in fee of a .672-acre tract of coal land bought from the Boggs Run Mining Manufacturing Company in 1896, and also the owner of the surface of a contiguous tract of 18.5 acres bought *143 from the same company in 1900; that in 1917, said mining company leased the Pittsburgh vein of coal of a large tract belonging to it in Marshall and adjoining counties (including the coal under the said 18.5-acre tract) to C. H. Ramsay, who in 1919, assigned all of his right, title and interest in said lease to one R. J. Cotts. It is alleged that the lease was subject to certain provisions: that the entry for mining by the lessee shall be through the land of the lessee; that the coal shall be taken out in a first-class workmanship manner, the lessor to have the right to enter and inspect said mines at any time desired; and, that the lessee shall pay the lessor ten cents per ton of 2240 pounds run of mine for all coal taken out, with right in the lessee to surrender the lease. Cotts proceeded, under said assignment, to take out the coal, and plaintiff sets out his damages in his declaration in trespass on the case, in three separate subdivisions.
In the first subdivision damages are claimed for coal mined and taken out of said coal belonging to the plaintiff, within and underlying the said .672-acre tract, without permission or consent of the plaintiff, of great value; and further, that such mining thereunder was done without leaving any support to the overlying strata thereof, to the further great damage of the plaintiff. In the second subdivision is alleged failure to protect the mining under the 18.5-acre tract so that the surface would not fall in — that the roof was not safely propped, and that the result of said coal mining under said tract was that the surface thereof was thereby caused to sink and drop, causing great cracks, crevices and holes, damaging the surface for farming, gardening and building purposes, and causing a valuable spring of water to be diverted and rendered dry and useless. In the third subdivision is alleged that without the consent of the plaintiff, either orally or in writing, there were four invasions within five feet of the line dividing the coal under the tract of land containing the 18.5 acres from the coal under the .672-acre tract. The statutory penalty, therefor, under section 7, chapter 79, code, was laid at $2,000.00.
The mining company and defendant Cotts demurred to the declaration, Ramsay making no appearance. The demurrer *144 was sustained as to said mining company and overruled as to Cotts Cotts then filed a special plea alleging that while he was in possession as lessee of the 18.5-acre tract that plaintiff had unlawfully, knowingly and wilfully opened, sunk, digged, excavated and worked a coal mine or shaft at four different places on the .672-acre tract and within the five feet of the division line of the properties, and claiming the statutory penalty. (Code, chap. 79, sec. 7). This plea was filed, and the demurrer thereto by the plaintiff sustained.
The first question argued by the counsel on both sides is one of practice — whether three causes of action are blended in one count or whether the pleading supports the conclusion that there are three separate counts.
The theory of separate counts is that each is a complete cause of action, as distinct from the others as if it stood alone in the pleading. 31 Cyc. 121. But averments which precede the statement of any cause of action and necessary to show the liability of the defendants, and constitute what is called the commencement of the pleading, are entirely distinct from the various counts and need not appear in each. Abendroth v.Boardley,
The defendants insist that there is misjoinder of causes of action, in this, that in said declaration there is a count declaring for recovery of the statutory penalty (a fixed sum), with counts for damages for appropriation of plaintiff's coal and for damages for injury to plaintiff's surface lands. In considering this ground of demurrer the causes of action will be looked to independently of the liability of parties defendant. In Maple v. John,
Is there a misjoinder as to parties? The defendants assert that there is. The rule is stated in 1 C. J. 1072, that in order that causes of actions against several defendants may be joined, they must affect all of the defendants. McKee v. Kent,
Failure of a declaration against several tort feasors, joined in one action, to show any ground of joint liability, is good cause of demurrer thereto for misjoinder of parties.Farley v. Crystal Coal Coke Company,
We now turn to a consideration of the special plea of the defendant Cotts, which is also certified here for review. The question raised by this plea is: Can one in a suit in trespass on the case for the recovery of the statutory penalty under sec. 7, chap. 79, code, for coal mining within five feet of a contiguous boundary, file a special plea of set-off for such statutory penalty, for plaintiff's acts of mining within five feet of defendant's line? In other words, where each has an identical cause of action for statutory penalty, must defendant bring a separate suit for his claimed penalty, or may he by a special plea have that issue submitted to the jury trying the original action? The action for the penalty under the statute is for a sum certain, and not as for a tort act, though it does not survive. Gawthrop v. Land Company,
For the reasons herein stated the ruling of the circuit court in sustaining the demurrer to the declaration as to the mining company, and overruling the demurrer as to defendant Cotts, is affirmed; and the ruling in sustaining the demurrer to the special plea is reversed. We so certify.
Affirmed in part; reversed in part. *150