189 F. 234 | U.S. Circuit Court for the District of Northern Ohio | 1911
The defendant demurs to the petition upon the grounds: (1) That the petition states no cause of action. (2) That the cause of action, if any, is barred by the statute of limitations. The facts briefly are as follows: The parties owned gypsum mines adjacent to each other and near Sandusky Bay. The defendant, in mining its property, broke into the waters of Sandusky Bay, which fact caused its mine to flood, and the waters thereafter, slowly percolating between the partition between its mine and the mine of the Consumers’ Company, flowed into and destroyed the latter property.
But the form of the allegation in the petition in this case does not permit us to assume that the mining of the defendant, resulting in the intrusion of the waters of the bay, was of this character. To be sure, the averment is not directly that defendant carelessly and negligently excavated its tunnels in the direction of Sandusky Bay, but the whole averment in that behalf, namely, “On or about the 24th day of March, A. D. 1904, said defendant so carelessly and negligently extended said tunnels in the direction of said Sandusky Bay that it struck the waters of said bay, and thereupon said waters rushed in and completely Hooded said mine,” leads inevitably to the conclusion that the act was the result of want of reasonable foresight. In so deciding, we are not moved so much by the terms in which the averment is couched as by the fact which the averment sets forth, namely, that, as a result of the tunneling, the waters rushed in, for it would seem that common prudence and ordinary intelligence in driving- a tunnel would have arrived at a warning of such catastrophe in ample time to have ceased operations and so to have avoided it. Therefore, without commending the pleading in that behalf, we feel that, as against a general demurrer, it is sufficient.
The demurrer on the second ground is sustained with exceptions to the plaintiff.