140 S.E. 57 | W. Va. | 1927
The plaintiff is the owner of approximately six acres of surface in Fayette County. The defendant is mining a seam of coal thereunder. This is an action for damages to a well on the surface tract which plaintiff claims was drained by reason of the removal of the coal. The plaintiff secured a verdict for $1,500.00 which was set aside by the circuit court of said county.
Plaintiff's tract is a portion of twenty acres of surface which was severed from the minerals in 1896. William Duncan at that time owned the entire estate. He granted to B. F. Bibb (Tr.) "all the surface land and only the surface" of the twenty acres. The grantor reserved the right to use such parts of the surface "as is necessary to mine and transport the coal and minerals underlying such surface land". The deed contained no reservation of the minerals and no specific rights as to their removal, except the surface right stated above. There is nothing in the deed, therefore, to enlarge the grantor's common law rights of removal. It contains nothing to take from the surface owner his common law right of subjacent support.
The well is situate within a few feet of plaintiff's property line. It was drilled in February 1925. It is about six inches in diameter and one hundred seven feet deep. It contained about thirty-five feet of water until July 1, 1925, when it went dry. At the place where the well was drilled the coal is 515 feet below the surface. The well is over rooms 11 and 12 on the eighth left entry of defendant's mine. The coal was all mined out from these rooms, and the pillars "pulled" *370 not later than October 1, 1924, which was several months before the well was drilled. The plaintiff testified that during June of 1925 he heard rumblings and felt the earth shake on several occasions. A witness for him stated that about June 1925 there was an increase of water in defendant's tenth left entry, and that there was considerable rock fall in the mine in July of 1925, but he knew of no falls closer to the eighth left in that month that some on the tenth left entry. (These two entries are 1200 feet apart.) One witness had never known of slate and rock falls in defendant's mine extending higher in the strata overlying the coal than 20 to 25 feet. Another witness had seen one fall occurring on the ninth left entry, in April 1925, which he estimated to extend as high as 75 feet. Defendant's superintendent testified that the falls in the mine did not ordinarily extend higher than 25 to 30 feet; that while the roof always fell in upon the removal of all the coal, he had never known such falls to extend to the surface of that particular mine; that he had never known the surface to be broken by falls in any mine which was 500 feet below the surface; and that the water from the eighth left did not drain into the tenth left entry. As to the drainage, however, he was contradicted by a witness for plaintiff.
The declaration charges the loss of the well water to the removal of the coal "underlying plaintiff's said land in the vicinity of plaintiff's said well" without leaving pillars of coal or artificial support. The evidence shows that immediately following removal of all the coal in this mine, the roof falls and continues to fall until it "arches" sufficiently to support the overhead strata. One of plaintiff's witnesses said: "The falls follow you as you take the coal out." Another: "Sometimes it falls just directly after the coal is taken out, and at other times it stands for — I have known it to stand for several days." It would therefore seem that the interruption of the strata immediately overlying rooms 11 and 12 must have occurred on or within a few days after October 1, 1924. As there was no diversion of the percolating waters from over those rooms at that time or for many months afterwards, it would seem that no connection direct or *371 indirect is inferable between the removal of the coal therefrom and the injury to the well.
The plaintiff must rely on a disturbance of strata in defendant's mine on or near July 1, 1925. No fall was shown to have occurred about that date closer to the well than the tenth left entry — 1200 feet from the rooms underneath the well. There is no evidence that the tenth left entry was under plaintiff's property. If not, there would be a variance between the allegation and proof. Even if we assume the tenth left to be under the plaintiff's property, what connection is there between an increase of water on the tenth left in June and the drainage of the well on July 1st? It was not shown that the jars and rumblings in June testified to by the plaintiff emanated from the tenth left entry or, in fact, came from defendant's mine. The plaintiff testified to no tremors or noises prior to October 1, 1924, during the period within which the pillars were being withdrawn from directly under the place where his well was afterwards drilled. He did not testify to any disturbances in April 1925 when the big fall occurred in the ninth left entry. It is hardly reasonable that falls of strata under and near his well should produce no noticeable effect on the surface or on the supporting sandstone, while falls more remote should affect it so seriously.
If it be assumed that the falls of strata on the tenth left did produce the jars and rumblings noticed by plaintiff in June, how do the phenomena of June account for the event of July 1st? There was no decrease of the wellwater in June. The plaintiff says the water drained out between 9 A. M. and 1 P. M. on July 1st. It would therefore seem likely that the diversion is due to something which occurred on the morning of July 1st. The plaintiff was at home that morning, yet he does not relate noticing any rumblings or jarrings at that time. The origin and the causes which direct the course and movements of percolating waters are ordinarily unknown and concealed. They are not discoverable from surface indications. The mystery of their movements, however, does not relieve plaintiff of the burden of proof. 40 C. J. 1202-3. He cannot recover even under his theory of this case upon conjecture. Coincidence is not sufficient, *372 but evidence clearly associating as cause and effect the one occurrence with the other event is requisite. The evidence is not at all satisfactory; but if we concede that it traces the depletion of the well to the removal of the coal, then is defendant liable at law therefor?
When the word surface is used in a grant of land, it creates a severance of the land into two parts, and prima facie refers only to the soil which covers the minerals — the "vestimentaterra". Gas Co. v. Comm'rs.,
The authorities say that absolute support is due a surface tract, unless the right thereto is impaired by deed,Cole v. Coal Co.,
A grant of the surface necessarily includes sufficient subjacent sandstone or other strata to support the soil. It is not requisite here that we say just what thickness of strata is included in this grant, as defendant's mining has not disturbed the strata immediately supporting the soil. It may be admitted for the sake of argument that the sandstone penetrated by the well is necessary for the support of the soil and is consequently a part of the plaintiff's estate; but that admission would not warrant a recovery under the rule of absolute support. That rule applies only to the surface as it was "in its natural state", i. e., in its condition when severance occurred. At that time the well was not in existence. Support of the surface so as to conserve the waters of a well to be drilled nearly thirty years later and drilled after all the coal had been removed was assuredly not within the contemplation *374
of the parties to the severance. Such support is a maintenance the grantor did not undertake, and is an additional servitude on the grantor's estate. The plaintiff cannot by his own act enlarge the liability of the servient estate. The integrity of plaintiff's surface as it was at the date of severance has been preserved. That is the whole extent of his right to subjacent support. The rule of support for surface in its natural state
is so well settled that Snyder, supra, Sec. 1021, says it has become axiomatic. "Whenever there has been a separation in ownership of the mines beneath the surface from the surface, the owner of the latter, in the absence of an agreement to the contrary, has an absolute right to have the surface supported precisely as it was in its natural state". Jones on Easements, Sec. 597, p. 486-7. "All that can be claimed by the owner of the surface under the right of subjacent support is that no physical injury be wrought to the surface in its natural state, or as contemplated at the time of the grant." Marvin v. MiningCo.,
Plaintiff contends, however, that water is necessary for the beneficial enjoyment of his property; that wells must have been contemplated by the parties at the time of the severance, in which case he has an implied easement in the water bearing strata beneath his soil; that he was therefore within his rights in drilling where he did for water, and that plaintiff owed support to the waters which gathered in his well. The authorities signally fail to support this conclusion.
Subsurface waters which do not exist in known and defined channels are deemed percolating waters. Pence v. Carney,
The rule limiting the right of diversion is called the "reasonable use" or "American" rule. It is now supported by the decided weight of authority and was approved by this Court in its opinion in Pence v. Carney, supra, (305). That case does not seriously attempt to define the rule of "reasonable use", but says it has been held to apply to any purpose for which a land owner "might legitimately use and enjoy his land". Meeker v. East Orange, supra, is perhaps the *376 most elaborate opinion supporting this doctrine. Its statement of the uses permitted by the rule has been generally accepted by text writers and decisions, and is 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 or diverted." See also 27 Rawle C. L. 1176, Sec. 94, and Secs. 10 and 11 of an extensive annotation toBarclay v. Abraham, 10 A. E. Dec. in Eq. 681 (704-5-6).
It is settled law that the extraction of minerals is areasonable use of property and if percolating waters are diverted by mining operations conducted in the usual way and the superficies is undisturbed, it is damnum absque injuria. Farnham, supra, Sec. 939; 30 A. E. Ency. Law 316; Lindley on Mines, Sec. 814; Snyder on Mines, Sec. 331; White on Mines, Sec. 239. "The grantee of minerals beneath the surface is not liable to the owners of the surface for the loss of springs occasioned by the ordinary working of the mine." Coleman v.Chadwick,
Ohio Coll. Co. v. Cooke,
Law, well settled, therefore denies plaintiff's demands, even upon a consideration of the evidence most favorable to him. The judgment of the circuit court is affirmed.
Affirmed.