148 Va. 437 | Va. | 1927
delivered the opinion of the court.
Compton brought an action of trespass on the case against the Clinchfield Coal Corporation, alleging that
During the progress of the trial the plaintiff, without objection from the defendant, abandoned all claim to damages for injury to the surface of his land, “leaving only his claim for damages for draining and drying up his springs.”
No damage was shown to have been occasioned except for the loss of one spring.
The defendant pleaded the general issue and the statute of limitations, and stated in writing its grounds of defense. There was a trial by jury, and a verdict in favor of the plaintiff for $2,000.00, which the trial court refused to set aside, but entered judgment thereon. To that, judgment a writ of error was awarded by one of the judges of this court.
There are three assignments of error, as follows:
I. The court erred in giving plaintiff’s instruction number one without modifying same so as to show that defendant, this petitioner, was not liable for draining a spring issuing from a coal seam which it owned and had the right to remove, and also was not liable for
II. The court erred in not sustaining defendant’s motion to set aside the verdict of the jury and entering judgment for the defendant.
III. The court erred in entering judgment for the plaintiff.
The court gave four instructions for the plaintiff and five for the defendant, to none of which was there any exception, except No. 1 for the plaintiff. This instruction is obnoxious to the objection made to it,—that is, it directs a verdict for the plaintiff upon a partial view of the evidence, which has been repeatedly held to be error. New York, etc., R. Co. v. Thomas, 92 Va. 606, 24 S. E. 264; Norfolk, etc., Co. v. Aetna, etc., Co., 124 Va. 221, 98 S. E. 43; Burks PI. & Pr. (2d ed.), page 496, note 15. It is based solely upon the evidence for the plaintiff, supporting his theory of the ease, and ignores all evidence supporting the defendant’s theory. Where there are opposing theories of a case, each supported by evidence adequate to support a verdict, each party is entitled to have his theory presented to the jury by a proper instruction of the court. Richmond, etc., Co. v. Gordon, 102 Va. 498, 46 S. E. 772. This should be done in such manner as not to confuse or mislead the jury, preferably by a single instruction propounding both theories. But if, when the instructions are submitted to the court, it appears that each theory is clearly and fully set forth, though in separate instructions, and that the jury understand the issue submitted to them, that in one view of the case they are to find for the plaintiff and in another for the defendant, the omission of a complete statement of the case in a single instruction becomes harmless. If the instruction complained of had been the only in
In the instant case, while instruction No. 1 given for the plaintiff propounded only his history of the case, instructions Nos. 1, 2 and 3, given for the defendant, equally propounded its theory, and no jury of average intelligence could have been confused or misled by the fact that the opposing theories were presented in four instructions instead of one. Counsel on each side would be astute to present their theories, and to point to the instructions presenting them.
The other assignments of error involve the rights and
The coal company owned in fee—surface and underlying minerals—a large boundary of land, and also the coal underlying the land of the plaintiff. The plaintiff owned the surface of two small parcels of land, one acre and eleven acres, respectively, and the surface boundary line between the lands of the plaintiff and that of the defendant ran through “the head of the spring,” which was dried up. The spring was on the side of the mountain, not far from the “top of Sandy Ridge.” The defendant claimed that the spring was fed by water which percolated from its land, which lay above the spring, and that the spring was dried up by seams and cracks on its own land, which cut off the percolating waters. Counsel for Compton, on the other hand, contend that what was cut off was not percolating water, but a living stream, and “concede that there is no liability upon the part of the defendant for the destruction of percolating water, whether the same runs through the defendant’s coal seam or elsewhere.” Thus a sharp issue is raised between the parties as to the source of supply of the spring, and it becomes necessary for us to decide what constitutes percolating water.
Underground waters are classified as (1) streams or bodies of water existing in known and well defined channels, and (2) percolating waters.
Percolating waters are those which ooze, seep, or filter through the soil beneath the surface, without a defined channel, or in a course that is unknown and not discoverable from surface indications without excavation for that purpose. The fact that they may, in their underground course, at places come together so as to form veins or rivulets does not destroy their character as percolating waters. Wheelock v. Jacobs, 70 Vt. 162, 40 Atl. 41, 67 Am. St. Rep. 659; 27 R. C. L., page 1168. Water which has fallen upon a mountain side and sunk into the earth, and which has followed the seams and cracks in the strata of sandstone of which the mountain is composed is percolating water, and its character as such is not altered by the fact that at one place it breaks through the sandstone, forming small springs, which, without a defined channel or current, find their way into the stream. Gould v. Eaton, 111 Cal. 639, 44 Pac. 319, 52 Am. St. Rep. 201.
“The distinction between rights in surface and subterraneous streams is- not founded on the fact of their location above or below ground, but on the fact of knowledge, actual or acquirable, of their existence, location and course, and the courts endeavor, so far as practicable, to apply the rules of law applicable to surface streams or bodies of water existing in well defined channels to the like streams or bodies underground.” 27 R. C. L., page 1170, section 90.
It is a mistake, however, to suppose that only those waters which ooze or percolate through the soil are subject to the law of percolating waters. They may flow in a well defined channel and be such as if on the surface would answer the description of a water course, but in order to be subject to the law of surface water, the existence, location and flow of the water must be known to the owner of the land through which it flows, or it must be discoverable from the surface of the earth. Otherwise, no one could with safety make excavations on Ms own land. Furthermore, “the knowledge required cannot be reasonably held to be that derived from a discovery in part by excavation exposing the channel, but must be knowledge by reasonable inference, from existing and observed facts in the natural or rather preexisting condition of the surface
It is well settled that unless it is shown that the underground water flows in a defined and known channel it will be presumed to be percolating water. Gould v. Eaton, supra; Tampa Water Works Co. v. Cline, 37 Fla. 586, 20 So. 780, 33 L. R. A. 376, 53 Am. St. Rep. 262; Barclay v. Abraham, 121 Ia. 619, 96 N. W. 1080, 64 L. R. A. 255, 100 Am. St. Rep. 365. There are many other cases to the same effect. See citations 27 R. C. L., page 1170, note 15. This presumption it is difficult to evereome, as in a great majority of cases the exact condition or course of the underground water is not known, nor readily ascertainable, but the burden of proof is on him who alleges that the water flows in a known and defined channel, and he must lose unless he can overcome the presumption by affirmative proof to the contrary. Note, 67 Am. St. Rep. 670-71, citing eases.
The ascertainability, from surface indications, of the existence of an underground stream is
In the instant case, no effort was made to show the location or course of the alleged stream before it emerged from the seam of coal, and, if it were necessary to show the conditions for the twenty feet between the seam and the spring, we have no difficulty in finding that there was no stream between the coal seam and the spring. It is true that some of the witnesses speak of the water flowing into the spring in a stream, but it is manifest that there was no stream with bed and banks between the coal seam and the head of the spring. The distance was only about twenty feet, and it was
But it does not follow that because the water was percolating, there could be no liability on the coal company. Liability is dependent upon the location of the point of interception of the supply. If the percolating water was on the land of the plaintiff and was there cut off by the removal of the subjacent support, to which the plaintiff was entitled, then the coal company is liable. Whether the surface is reserved by the grantor of the underlying coal, or is granted to one and the underlying coal to another, in either event the owner of the surface is entitled to subjacent support from the owner of the coal. “Surface” includes whatever of earth, soil, land, or waters which lies above and is superincumbent upon the coal, and is not limited to the mere geometrical superficies. This is just what was decided; after careful consideration and the citation of authorities, in Stonegap Colliery Co. v. Hamilton, 119 Va. 271, 89 S. E. 305, Ann. Cas. 1917E, 60. See also Horner v. Watson, 79 Pa. 242, 21 Am. Rep. 55; 27 Cyc. 789-90, and cases cited. If the water had been cut off by the removal of the support underlying the plaintiff’s surface, the coal company would have been liable, but such was not the case.
Upon the authorities cited, we are of opinion that the waters which fed the plaintiff’s spring were percolating waters; that they were cut off or intercepted by the legitimate mining operations of the coal company on its own land, and if, in consequence thereof, the plaintiff has sustained damage, it is damnum absque injuria.
Decided cases contain interesting discussions of the relative rights and duties of adjacent owners in respect to percolating waters. Among the more recent is Rouse v. Kinston, 188 N. C. 1, 123 S. E. 482, 35 A. L. R. 1203 (June, 1924), citing a number of the previous cases. The common law regarded the fee simple owner of the land as the owner of everything above and below the surface from the sky to the center of the earth, expressed in the maxim, Cujus est solum, ejus est usque ad coelum et ad inferos, and this doctrine is adhered to in England. Acton v. Blundell, 12 Mees & W. 324, 13 L. J. Exch. 289; Chasemore v. Richards,
It is said that the earlier American cases followed this doctrine and some of them still do, but that the trend of modern opinion is in favor of the “reasonable use” rule which has come to be called the American rule. 27 R. C. L., page 1171, section 91. The “reasonable use” rule does not forbid the use of the percolating water for all purposes properly connected with the use, enjoyment and development of the land itself, but it does forbid maliciously cutting it off, its unnecessary waste, or withdrawal for sale or distribution for uses not connected with the beneficial enjoyment or ownership of the land from which it is taken. Barclay v. Abraham, 121 Ia. 619, 96 1ST. W. 1080, 100 Am. St. Rep. 365, 64 L. R. A. 255; Pence v. Carney, 58 W. Va. 296, 52 S. E. 702, 112 Am. St. Rep. 963, 6 L. R. A. (N. S.) 266, 6 Ann. Cas. 285. The “American rule” takes cognizance of the maxim, Sic utere tuo ut alienum non laedas, and treats it as a reasonable limitation upon the maxim, “Cujus est solum.” It gives to the owner of the soil every reasonable use of the water, but forbids him to use otherwise, his rights to the. prejudice of his neighbor. The basis of the “American rule” is well expressed by Chancellor Pitney in Meeker v. East Orange, 77 N. J. L. 623, 74 Atl. 379, 25 L. R. A. (N. S.) 465, 134 Am. St. Rep. 798, as follows: “This does not prevent the proper user by any landowner of the percolating waters subjacent to his soil in agriculture, manufacturing, irrigation, or otherwise; nor does it* prevent any reasonable development of his land by mining or the like, although the underground water of neighboring proprietors may thus be interfered with
Miller v. Black Rock Spring Co., 99 Va. 747, 40 S. E. 27, 86 Am. St. Rep. 924, is an ideal case of percolating water, and its interception was for domestic purposes, which was authorized on any theory of the case; but the English theory of the absolute ownership of percolating water was there approved. It was said, however, in the course of the opinion, that whether there would be liability on the defendant if cutting off the supply of percolating water was attributable to malice or negligence on the part of the defendant was a question not before the court. The facts of that case did not necessitate a choice between the English and the “American rule” as the interception of the water was warranted by either. That case was quoted with approval in Heninger v. McGinnis, 131 Va. 76, 108 S. E. 671, for the proposition that the owner of the surface is owner of the underlying percolating waters.
In the instant case, the coal company was making a legitimate use of its land for mining purposes, even under the “reasonable use” rule, and we are not called upon to decide between the different theories, but if the question shall again come before this court we shall feel free to consider it ne novo.
Having arrived at the conclusion that the water, in the instant case, was percolating water, and that the coal company was not liable for its interception, it becomes unnecessary to pass on the question of the statute of limitations raised by the defendant.
The judgment of the trial court will be reversed, the verdict of the jury set aside, and final judgment will be entered by this court for the plaintiff in error, and for its costs.
Reversed.
Instruction No. 1 for the plaintiff
_ The court instructs the jury that it was the duty of the defendant in mining and removing the coal under the tracts of land set out in the plaintiff’s declaration, to leave sufficient pillars, props, or other means of support to prevent the strata overlying the coal from breaking and falling ‘so as to injure the plaintiff’s spring,’ and if they believe from a preponderance of the evidence that the defendant mined the coal in and under the plaintiff’s land described in the declaration without leaving sufficient pillars, props, or other means of support to prevent the overlying strata of said coal from breaking and falling ‘so as to inju're said spring’ and that as a result thereof the said strata was broken and the springs on said tracts of land thereby drained and destroyed, they should find for the plaintiff such damages as he has sustained by reason of the draining and drying up of said springs.
Instructions Nos. 1, 2 and S for the defendant
No. 1. The court instructs the jury that the defendant company in the mining and removal of its coal had the right under the law to drain underground percolatiotís or streams of water in the soil over or around its seam of coal, although said percolations or streams may supply the spring
No. 2. The court instructs the jury that the defendant had the right to mine and remove the coal from all seams of coal on the eleven and one acre tracts above the road, and if you believe from a preponderance of the evidence that the spring or springs alleged in the declaration had their origin in the seam of coal, or coal bank, described in the evidence, and would have been or would be destroyed in the mining and removing of the coal therefrom, then you shall find for the defendant as to said springs.
No. 3. The court instructs the jury that unless the plaintiff by the preponderance of the evidence shows that said spring or springs came from a distinct known, or well defined underground stream, or a well defined channel on the surface, then the defendant was not required to make any effort to protect same in the mining and removal of its underlying coal, and as to said springs you will find for the defendant.