Hindson v. Markle, 171 Pa. 138

Hindson v. Markle

171 Pa. 138 | Pa. | 1895

Opinion by

Mr. Justice Green,

It seems to us that this case was tried by the learned court below in exact accoi-dance with our rulings in the case of Elder v. Lykens Valley Coal Co., 157 Pa. 490. The jury was distinctly instructed that the owner of coal mines may deposit the refuse and culm upon his own lands. That if the material is carried by extraordinary floods into a stream, which runs through the land of a lower owner, and from thonce spreads over such land, the owner of the coal lands is not responsible in damages to the lower owner for the injury thus sustained. But if the refuse is placed on his own laud in a position where it is washed into the stream by ordinary storms, or if he deposits his refuse and culm directly in the stream, and damage thereby results to the lower owner, the mine owner or operator is liable for tbe damage and injury thus occasioned to the lower owner. These are the precise propositions decided in the case referred to and the court below cannot be convicted of error in following them. The substance of the contention then became one of pure fact which was correctly submitted to the jury, and found by them in favor of the plaintiff. If there was evidence to justify the court in leaving the questions of fact to the jury, the verdict must be accepted as the solution of the controversy.

The fourth and seventh points of the defendant were practical requests to the court to decide the facts in favor of the defendant, but both points assumed that the testimony was undisputed that the culm was deposited and washed upon the lands of the defendant. Under the fourth point an instruction *144was asked that if the jury believe that it was carried to the defendant’s land by unusual floods only, the plaintiff could not recover, and by the seventh point a binding instruction that such was the fact was requested. The learned court declined the points on the ground that the testimony was not undisputed as to all the culm being deposited on the defendant’s land and thence washed into the stream. The conclusion o£ the fourth point was correct if the premise was correct, because the finding of the fact whether the culm thus deposited was washed off by unusual floods, was left to the jury, but in the seventh point the jury was given no discretion, and the court was asked to declare as an undisputed fact that the culm was removed by unusual storms and freshets. An examination of the testimony proves conclusively that the court could not possibly have affirmed either of the points. Almost the entire testimony in the case proved that the water used in washing the coal passed, not only to the end of the trough on the culm bank, but from that point through a gully leading to the creek, and thence directly into the creek. This water was thickly charged with the fine coal dirt, and in that condition it mingled with the water of the stream, changing its color to black, depositing slowly through years, fine coal dust and culm in the bed of the stream, until it was filled to its banks, and then overflowing the banks and spreading over the land of the plaintiff to a depth of several feet, completely destroying the cultivated land and destroying also the growing timber. We fail to discover any evidence that this occurred only at times of high water and floods. On the contrary the evidence was that it was continuous, progressing at all times, constantly discoloring the water of the stream and filling its bed. Even the defendant admitted on cross-examination that the water eventually went into the stream, carrying culm with it, for several years before the trial, and making the water black.

The testimony to this effect is too voluminous to quote, it came from nearly all the witnesses in the case, and was not substantially contradicted by any. It would have been grave error to have affirmed either of the two points which presented this subject, and the verdict was entirely justified by the evidence. The case of Penna. Coal Co. v. Sanderson, 113 Pa. 126, is not at all in point. That was the mere flowage of natural water *145which was discharged by natural and irresistible forces, necessarily developed in the act of mining prosecuted in a perfectly lawful manner. While the mine water thus discharged polluted the water of the stream in which it necessarily flowed, it caused no deposit of any foreign substance on the land of the plaintiff aud did not deprive her of its use. The fourth and fifth assignments of error are not sustained.

All the other assignments relate to the liability of the defendant. He was the active managing superintendent of the mines from 1880 to 1890, and a member of the firm which operated the mines from 1890 to the time of the trial. During the whole time it was he who carried on and directed the work at the mines, and whether his acts and his methods of mining had the sanction of his employers or his firm, was immaterial so far as this plaintiff is concerned. It was his positive and specific acts that caused the plaintiff’s injury, and we know of no principle of the law that will relieve him from liability to this plaintiff. If his acts were wrongful and occasioned injury to the plaintiff, they were acts of misfeasance for which under all the authorities he is liable. They were his own voluntary acts, not enjoined upon him by Ms employers or his associates so far as is disclosed in the testimony ; they were affirmative positive acts of trespass upon the plaintiff’s land, they were absolutely and directly injurious to the property and rights of the plaintiff, and we are clearly of opinion he is responsible to the plaintiff for the injury done. The assignments of error are all dismissed.

Judgment affirmed.