137 A. 672 | Pa. | 1927
Argued April 12, 1927. Plaintiff and defendant, coal mining companies, own and operate adjoining mines in Hanover Township, Luzerne County, that of the latter being on the higher elevation. In 1918, defendant drove a tunnel through rock some eight hundred and fifty feet on its own land to reach another body of coal, and reaching a space of broken rock about twenty feet from plaintiff's line. The tunnel was driven on a slightly ascending grade, while a ditch within and along the side of the tunnel was constructed on a slightly descending grade, ending lower than where it began. This caused, and was intended to cause, the surplus water from defendant's open mine, as well as that collected along the tunnel, to flow forward and be discharged among the broken rocks. This saved defendant the expense of pumping the water to the surface, which theretofore had been, and practically could be, done. The water so discharged, however, flowed upon and into plaintiff's mine, causing great damage and expense. To restrain this flow of water upon its premises, plaintiff, soon after the tunnel was finished, filed this bill in equity, to which a responsive answer and replication were filed and testimony taken. Because of unforeseen delays, including the death of the chancellor, and of one of defendant's solicitors, a final decree, granting plaintiff the relief prayed for, was entered approximately *495 six years after the bill was filed; therefrom defendant brought this appeal.
The facts found, based on ample proof, support the decree and the record is free from error. About 1872, the mining operations of plaintiff's predecessor extended over the line and into defendant's land, leaving an open space, later filled by broken rock as the result of a cave-in, where defendant discharges the water here complained of. Appellant urges that by reason of such alleged trespass plaintiff does not come into court with clean hands and cannot maintain this bill. In Locust Mountain Coal Iron Co. v. Garrell et al., 9 Phila. 247, Mr. Justice AGNEW holds that such trespass by the lower owner did not justify the other's act in turning the water into the former's mine and enjoined him from so doing. No appeal from that decision was taken and so far as we are aware it has never been departed from. In the early history of anthracite coal mining, boundary lines were not as definitely ascertained as in more recent years and the so-called trespass in the instant case may have been unintentional and consented to or compensated for. We cannot assume it was such as to deprive plaintiff of redress for the wilful act of defendant committed fifty years later. The rule applicable to this feature of the case is well stated by the learned chancellor as follows: "It is the law that if his neighbor has trespassed upon his property by mining over the line, it is [still] the duty of defendant to conduct its own mining operations in the usual and proper manner, and not to take advantage of his neighbor's trespass by diverting water upon the complainant which would not otherwise have flowed there." The injury here complained of did not result from the plaintiff's original act of taking out the coal; had it done so, it would have been damnum absque injuria.
The bill as first filed complained of the water being discharged in plaintiff's mine by means of a tunnel, but made no mention of the ditch therein. After the evidence *496
was all taken and submitted to the chancellor, but prior to his decision, he suggested, apparently out of abundant caution, that the bill be so amended as to specifically mention the ditch. This was done in due course and upon notice to defendant, who filed an answer thereto, but, although given an opportunity, offered no additional testimony. By leave of court, granted six months after final decree, defendant took an exception nunc pro tunc to allowance of the amendment, and now urges that it was filed too late. The question of such amendment is for the reasonable discretion of the trial court (Berlin Smokeless C. C. Co. v. Rohm,
Finally, defendant claims the right to collect the surplus water in its mine and discharge it through a tunnel or ditch upon the plaintiff's land, regardless of the injury caused thereby, on the assertion that the time honored maxim, "Sic utere tuo ut alienum non laedas," is not applicable to coal mining in Pennsylvania. For this unique proposition the case of Pennsylvania Coal Co. v. Sanderson,
The right to use land for agricultural or mining purposes in the usual and proper manner, although it may result in some additional flow of surface water upon the land of an adjoining owner, is undoubted, but the right to collect such water and conduct it upon another's land through an artificial channel cannot be sustained. While proper farming or mining may affect the flow of surface water, yet, when it departs it must be in a natural course and not collected together and cast upon lower land by artificial means: Kauffman v. Griesemer,
The fact here is well found that defendant's mining was improperly conducted in that the ditch in the tunnel was constructed on a descending grade toward plaintiff's land, when it should have been on an ascending grade so as to drain the water back into defendant's sump or pool, that the surplus might be pumped to the surface, as formerly, and not discharged into plaintiff's mine. This improper grade of the ditch and the fact that, as originally constructed, its outlet came to plaintiff's property by an opening driven through solid coal or rock (although later changed) establish defendant's *498 intent to rid itself of surplus water at plaintiff's expense.
The decree is affirmed and appeal dismissed at cost of appellant.