95 Ala. 235 | Ala. | 1891
Tbe bill alleges tbat complainant is tbe owner of tbe land therein described, “except all tbe coal and other minerals in, under, and upon said lands, and also except all timber and water upon tbe same necessary for tbe development, working and mining of said coal and other minerals, and tbe preparation of the same for market, and tbe removal of tbe same; and also tbe right of way, and tbe right to build roads of any description over tbe same necessary for tbe convenient transportation of said coal and other minerals from said coal lands, and tbe conveying and transporting to and from said lands all materials and implements tbat may be of use in tbe mining and removal of said coal and other minerals, or in tlie preparation of tbe same for market.” It further alleges tbat defendant has opened a mine on tbe land, and erected thereon a tram-way, bridges, trestles, weigb-bouses, blacksmith-shops, and other buildings and works used for mining coál; that the company has ceased to mine tbe coal lying beneath tbe surface of tbe land to any appreciable extent, and has extended tbe openings of tbe mines to adjacent lands, from which large quantities of coal are mined, using tbe plant upon complainant’s land to load and transport such coal, not for loading and transporting coal mined beneath tbe surface of complainant’s land. Tbe bill further avers, that tbe land of complainant is very valuable for agricultural and grazing purposes; and tbat tbe defendant, its agents or employes, dump vast quantities of slate and other obnoxious refuse, taken from tbe mines on tbe adjacent lands, on to tbe agricultural and grazing lands of complainant; tbat they also permit vast quantities of foul water to accumulate in the mines of tbe adjacent lands, which, by means of machinery, is ejected upon tbe surface of complainant’s lands. The bill, which is filed by appellant, seeks to restrain appellees from using complainant’s land for tbe purpose of loading and carrying away coal mined on such adjacent lands; also, from clumping on to complainant’s land slate, refuse water, and other substances and fluids taken therefrom. Tbe court overruled all tbe grounds of demurrer to tbe bill, except tbe second, which is to tbe effect tbat complainant has an adequate remedy at law.
The right to use the surface, implied from the reservation or grant, arises from, and ceases with, the necessity of the case. "When all the subjacent ore is dug and removed, and
The grounds of demurrer, raising the question as to the right of defendant to use complainant’s land for loading and transporting coal mined on other lands, and for the deposit of such substances, whether taken from the subjacent mines or others, having been overruled, the direct and sole question is, whether, on the facts averred in the bill, an injunction will lie to prevent such injuries. The foregoing principles have been stated as aiding its determination. tJnder the averments of the bill, dumping the slate and other substances on complainant’s land is clearly a trespass. As a general rule, an injunction will not be awarded, in the absence of special circumstances, to restrain the commission or repetition of a trespass, when an action at law for the recovery of damages affords an adequate remedy. But the jurisdiction is well established, when from the peculiar nature or use of the propertyf or the probability of a multiplicity of suits arising from the frequent and continued repetition of the trespass,•'the injury can not be adequately compensated by an action for damages. It is difficult to define with any degree of definiteness what will constitute such irreparable injury as to warrant the inteiqoosition of the extraordinary but conservative remedy of injunction. The general rule is, that when the trespass is of a temporary nature, or of such character and effect as may be readily compensated in damages, the trespasser being solvent, equity will not depart from the settled rule to leave the aggrieved party to his remedy at law. As to the jurisdiction of equity in such cases, there is a well-recognized distinction between injuries temporary and fugitive in their nature, and injuries jmrmanent, continuous, and of frequent occurrence. The former may be readily redressed at law; but, when the injuries are of the latter character, which destroy the substance of the inheritance, or ruin the estate, or permanently impair its future use and enjoyment in the manner in which the owner has been accustomed to use and enjoy it, pecu
It is true the averments of the bill are general, and might have been more definite and precise as to the extent of the injury, present and prospective; but they are sufficient to make a case of irreparable injury within the meaning of that term, as understood and employed in equity jurisprudence. Defendant, having become possessed in a lawful way of a location on the surface of complainant’s land, and having nearly exhausted the subjacent coal, extended the opening of its mines into adjacent but unconnected lands, brings the coal therein mined to the surface of complainant’s land to be there loaded and transported, and deposits on his land noxious refuse substances and foul water. The frequent and continuous deposit of vast quantities of slate on lands valuable and used for agricultural or grazing purposes, and the emptying of foul or filthy water thereon, pumped from mines where suffered to accumulate, certainly deteriorates its value and usefulness for such purposes, and permanently injures its future use and enjoyment, producing irreparable injury, to redress which pecuniary compensation is inadequate. — Sullivan v. Babb, 86 Ala. 433; Ogletree v. McQuaggs, 67 Ala. 580.
The case made by the bill comes within the rule stated above, and the demurrer should have been overruled.
Reversed and remanded.
The opinion in this case was prepared by the late Mr. Justice CloptoN, and was adopted by the court after his death.