140 Iowa 114 | Iowa | 1908
Lead Opinion
— The plaintiff is the owner of the surface of the land involved in this controversy, and the de
In Livingston v. Moingona Coal Co., 49 Iowa, 369, the action was for damages on account of taking coal from beneath the plaintiff’s house. The deed from the defendant under which the plaintiff acquired title contained a reservation of minerals beneath the surface, and provided that
Mickle & Co. v. Douglas, 15 Iowa, 18, was a' case where the defendant owned the entire estate and by lease gave the plaintiffs the right to mine “all the coal” under the premises, and we said: “In the absence of a contract to the contrary, the right to mine coal underlying the surface of land is subject to an implied covenant that only so much of the coal can be removed as can be obtained without injury to the superincumbent soil or surface. . . . All the coal under the land was granted to the plaintiffs; that is, under the lease the right to mine and remove it was granted to the plaintiffs, subject, however, to an implied covenant that sufficient support must be left so as not to materially injure the surface or dominant estate.” That case is in line with the weight of authority, holding that, where minerals are granted or reserved in the most genera] terms, a reasonable support must be left for the surface.
In Griffin v. Fairmont Coal Company, 59 W. Va. 480 (53 S. E. 24, 2 L. R. A. (N. S.) 1115), this rule is apparently disapproved in a very strong opinion which holds that, where an owner of a tract of land beneath the surface of which there is a vein of coal sells the right to “mine, excavate, and remove all of said coal,” no right to surface • support will be implied. We are impressed with the force and logic of the opinion in that case, but it is opposed to the rule of our own cases cited herein, and we are not prepared to overrule them because of the distinction between this case "and the Griffin case, a distinction which we think may well be made, and one that in fact places this case, in principle, in line with the Griffin case. Here the owner of the entire estate sold the surface, reserving to herself the mineral underlying it, while in the Griffin
The question asked McClure as to what adjacent land had sold for was clearly leading, and the objection thereto was properly sustained.
We have specifically referred to only a small number of the many points relied upon for a reversal, but we have given them all due consideration, and find nothing more of sufficient importance to demand further attention. Nor do we find any cause for a reversal. The judgment is therefore affirmed.
Rehearing
Supplemental opinion on rehearing. Overruled.
— In submitting the case to the jury the court said nothing about the question of interest on the damages which might be allowed, although the petition prayed that interest be allowed. After the verdict, which was. a general one, the plaintiff moved that interest, be allowed on the amount of the verdict, and the court added thereto the sum of $98, which represented interest at the rate of 6 percent from July 1, 1905, to the date of the verdict.
The time of the injury being thus definitely fixed, plaintiff was entitled to interest on the actual amount of damage found; and, unless it can be said that the jury allowed interest in fixing the amount of its verdict, there was no error in adding it to the verdict. It was then merely a matter of computation, and the court could do that as well as the jury. The court having instructed that the plaintiff could only recover the difference in the value of the land before and after the injury, it will not be presumed that the jury disregarded the instruction and allowed interest. Hollingsworth v. Railway Co., supra.
There was no error in the action of the court; and the petition for a rehearing is overruled.