57 Mich. 83 | Mich. | 1885
This is an action of trespass. The following is a statement of the case, as made for the plaintiff, for the argument in this Court:
“ The plaintiff and defendant are corporations, which for twenty-five years and more have been engaged in copper mining in Ontonagon county. Their mines adjoin each other. Each owns the land in fee on which its mine is situated. The plaintiff, in carrying on jt.s mining operations, left a wall of rock, from fifteen to eighteen feet thick, next to the boundary line of defendant’s mine. This was left as a barrier and protection to its mine against water or other encroachments from the Minnesota. The Minnesota left no such barrier; it not only worked up to the boundary line, but broke through into defendant’s mine. About the year 1866 the plaintiff, at about forty feet above its fourth level, and from twenty to twenty-five feet from the boundary line, drilled a hole, of the ordinary size, about one and one-half inches in diameter, and when the blast was fired it blew through into the opening which had been previously made by the defendant into the plaintiff’s territory. The drill-hole was left through from two to two and one-half feet of solid rock. Capt. Chynoweth, then the agent of plaintiff, examined this hole and the surroundings, and immediately gave orders to cease work there. This was done as a further protection against the defendant. No work was done at this point after that until the winter of 1883-4. The plaintiff had no knowledge of any further trespass at this point until February, 1884, under the circumstances related hereafter. The pump of the defendant was stopped in 1870, and that of the plaintiff in 1871 or 1872. Plaintiff’s mine filled up to the adit level in about five years. Since 1870 the defendant has worked its Tnine more or less upon tribute, and so did the plaintiff, until May 1880, when it resumed work. In order to avoid liability for the trespass committed by it at the plaintiff’s fourth level (being the defendant’s fifth level), the defendant sought to show, and did show, another hole at the first level, between the two mines. A continuation of the inquiry showed that this hole also was about twenty feet from the boundary line, on the plaintiff’s side, and that defendant had here trespassed twenty feet upon plaintiff’s land. We do not think that the history of mining upon Lake Superior will disclose another instance of such reckless disregard of the rights of an adjoining mine-owner. This encroachment and trespass by the defendant at the defendant’s fifth level occurred about the year 1859.
*86 In May, 1880, the plaintiff resumed mining operations and commenced to pump the water from its mine. The six-inch pump, formerly used by the mine, and which had always been adequate to keep the mine unwatered, proved wholly inadequate, and it was compelled to get a twelve-inch pump, and even this was not sufficient in the spring; and in 1882 the water gained on them one hundred and twenty feet, and in 1883, two hundred and twenty-two feet, with the pump working night and day. Capt. Parnel 1, the agent of the plaintiff’s mine, was thoroughly acquainted with it, having worked in the mine years before ; he soon became convinced that the bulk of the water came from the defendant’s mine. He found that the water came from the fourth level. He cleaned out the level, and, on reaching the point where the drill-hole had been made years before, he found that the rock had begn all blasted away from the Minnesota side, and that the water was rushing through an opening from twenty to twenty-five feet high and twelve feet wide. When discovered there was a volume of water seven feet wide flowing from the Minnesota into the National. When the defendant made its second encroachment at this point does not clearly appear; according to the defendant’s witness Spargo it was in 1871 or 1872. This witness was an employe of the defendant, and one of its tributors. He says he saw the hole from the Minnesota side, and it was then six. to eight feet high, and from four to five feet wide. William George, a witness for defendant, last saw the hole in 1870 or 1871. It was then about a foot in diameter. The witness was then working for the defendant as tributer and captain. Thomas James was in charge of the mine. He admits that the defendant’s tributers were then mining there. This same Capt. James has,been in charge of the defendant’s mine as agent ever since.
It was not denied in the court below, and we presume will not be in this Court, that the defendant committed these several acts of trespass. But, in proof of the fact, we refer to the admission of the agent Harris, the evidence that the track of a tram-road, sollars, and a system of timbering were found constructed from the fifth level of defendant’s mine into this opening, and the testimony of plaintiff’s witnesses already referred to. Furthermore, it is beyond dispute that the defendant hnoiuingly and willfully committed these acts of trespass, and broke down the barrier which the plaintiff had so carefully left to protect its mine for all future time, and against all possible dangers.
About 1870 the defendant concluded to abandon regular*87 mining, stopped its pumps, and commenced what is known among miners as robbing the mine. It placed its tributers at work at the bottom of the mine, took out all the copper ground that could be found, took out the supports of the roof of the mine, and allowed it to settle or cave in. This was all done under the direction of the defendant’s agent, ■James. The defendant’s mine is situated upon a hill or mountain side. The result was that the surface of the ground became depressed, and openings were made in it. Defendant’s agent, James, testified to openings of this character on the surface of the Minnesota, amounting in all to over five hundred feet in length ; some were three or four feet wide. Into these openings the water from rains and melting snow ran into the defendant’s mine, and from thence flowed into the plaintiff’s mine, through the opening at its fourth level. But for these openings the water would have run down the hill-side. As one of defendant’s own witnesses expressed it, ‘ There has been a general falling away of the bluff.’ Thei’e were no such openings on the surface of the National. In fact, we everywhere nnd the plaintiff conducting its mining •operations with due regard to the rights of adjoining owners; while we find the defendant conducting its operations in the most reckless disregard of such rights.”
The above -is a sufficient statement of the facts for a discussion of the principal question in the case, viz.: Is the plaintiff’s right of action barred by the statute of limitations ?
The count in .the declaration on which the parties went to 'trial alleged that the defendant, on March 15, 1882, and on divers days and .times between that day and the commencement of suit, with force and arms broke down the partition wall between the mine of the plaintiff and the mine of the ■defendant, and let the water from its said mine into the mine ■of the plaintiff, and then and there filled the mine of the plaintiff with water, greatly damaging its timbering, workings, walls, and machinery, hindered and prevented the plaintiff from carrying on and transacting its lawful and necessary affairs and business, caused the plaintiff great damage and expense in removing water from its mine, etc.
The defendant pleaded the general issue, with notice that the statute of limitations would be relied upon. The plaintiff recovered a large judgment.
1. Had the plaintiff instituted suit within two years from the original trespass, the recovery would have been limited to such damages as were the direct and immediate result of the trespass. The subsequent flowage of water through the opening was not the direct, immediate, or necessary result of breaking down the barriers; therefore no damages could have been recovered therefor in an action so brought.
2. Two trespasses may be the result of one act. In other words, one trespass may cause another, an,d he who commits the wrongful act in s.uch a case will be responsible for both trespasses.
3. In this case no action accrued for the flowage of water into the plaintiff’s mine until the flowage actually took place, but when the flowage occurred as a result of defendant’s wrongful act it was a trespass, and if it continued from day to day there was a continuous trespass for which repeated actions might be maintained.
Upon these positions the plaintiff plants its case, and unless they are sound in law the recovery cannot be supported. All right of recovery for the original trespass, which consisted in breaking through into the plaintiff’s mine, was long since barred, and it is not claimed that there was, from the time of the first wrong, a continuous trespass which can give a right of action now. The merely leaving an opening between the two mines is not the wrong for which suit is brought, but it'is the flowing of water through the opening which is complained of as a new trespass; the original wrongful act of the defendant in breaking through being the cause, and the injurious consequence when it happened, connecting itself with the cause to complete the right of action.
In support of its contention that the case- before us may be-
To make these cases applicable, it is necessary that it should appear that the action of the defendant has been continuously wrongful from the first. Whether it can be so regarded will be considered further on. The plaintiff, however, does not, as we have seen, rely exclusively upon this view. Its case is likened by counsel to that of a farmer, whose fences are thrown down by a trespasser; the cattle of the trespasser on a subsequent day entering through the opening. In such a case it is said there are two trespasses; the one consisting in throwing down the fences, and the other in the entry of the cattle; and the right of action for the latter would accrue at the time the entry was actually made. The plaintiff also cites and relies upon a number of eases in which the act of the party which furnishes the ground of complaint antedates the injurious consequence, as the original trespass in this case antedated the flowing from which the plaintiff has suffered damage.
One of these cases is Bank of Hartford County v. Waterman 26 Conn. 324. In that case action was brought against a sheriff for a false return to a writ of attachment. The falsity consisted in a misdescription of the land attached. When suit was brought, the period of limitation, if it was to be computed from the time the return was made, had already run ; but under the statute the plaintiff was entitled to bring suit only after he had taken out execution and had a return made upon it, which would show a necessity for a resort to the attached lands. It was only after such a return of execution that the plaintiff would suffer even nominal damage from the official misfeasance; and it was therefore a necessary consequence that the time of limitation must be computed from that time, and not from the time of the false return.
Another case is that of McGuire v. Grant 25 N. J. L. 356, which is to be referred to the same principle. The defendant removed the lateral support to the plaintiff’s land by an excavation, made within his own boundaries. Injury subsequently resulted to the plaintiff in consequence. The statute
The plaintiff also, in this connection, likens its ease to that of one who, in consequence of a ditch dug upon his neighbor’s land, has water collected and thrown upon his premises to his injury. It is not the act of digging the ditch that sets the time of limitation to running in such a case, but it is the happening of the injurious consequence.
The case supposed, however, is not a case of trespass. The act of digging the ditch was not in itself a wrongful act. The owner of land is at liberty to dig as many ditches as he pleases on his own land, and he becomes a wrong-doer only when, by means of them, he causes injury to another. If he floods his neighbor’s land the ease is one of nuisance, and every successive instance of flooding is a new injury. But here, as in the case of a continuous trespass, prospective damages cannot be taken into account, because it must be presumed that wrongful conduct will be abandoned rather than persisted in, and that the party will either fill up his ditches or in some proper way guard against the recurrence of injury. Battishill v. Reed 18 C. B. 696. Cases of flooding lands by dams or other obstructions to running water are cases of this description. Baldwin, v. Calkins 10 Wend. 169; Mersereau v. Pearsall 19 N. Y. 108; Plate v. Railroad Co. 37 N. Y. 472. So are cases of diverting water, to the flow of which upon his premises the plaintiff is entitled. Langford v. Owsley 2 Bibb 215. So are cases of the -wrongful occupation of a public street, whereby the access of the plaintiff to his premises is obstructed. Carl v. Railroad Co. 46 Wis. 625. Other cases cited for the plaintiff, and resting on the same principle, are Thayer v. Brooks 17 Ohio 489; Blunt v. McCormick 3 Den. 283; Winchester v. Stevens Point 58 Wis. 350; Union Trust Co. v. Cuppy 26 Kan. 754; Spilman v. Roanoke Nav. Co. 74 N. C. 675; Loweth v. Smith 12 M. & W. 582. The case of Whitehouse
The case before us was one of admitted trespass, from which immediate damage resulted. Had suit been brought at that time, all the natural and probable damage to result from the wrongful act would have been taken into account, and the plaintiff would have recovered for it. But there was no continuous trespass from that time on. The defendant had built no structure on the plaintiff’s premises, was occupying no part of them with anything it had placed there, and was in no way interrupting the plaintiff’s occupation or enjoyment. All it had left there was a hole in the wall. But there is no analogy between leaving a hole in a wall on another’s premises and leaving houses or other obstructions there to encumber or hinder his occupation ; the physical hindrances are a continuance of the original -wrongful force, but the hole is only the consequence of a wrongful force which ceased to operate the moment it was made. —
If, therefore, the plaintiff had brought suit more than two years after the original trespass, and before the flooding of its mine by water flowing through the opening had begun, and if the statute of limitations had been pleaded, there could have been no recovery. The action for the original wrong
The flowage caused a damage to the plaintiff; but damage alone does not give a right of action; there must be a concurrence of wrong and damage. The wrong, then, must-be found in leaving the opening unclosed and permitting the water to flow through. It must therefore rest upon an obligation on the part of the defendant either to close the opening, because persons for whose acts it was responsible had made it, or to restrain water which had collected on its own premises from flowing upon the premises of the plaintiff to its injury. The latter seems to be the ground upon which •the plaintiff chiefly relies for a recovery.
In the argument made for the plaintiff in this Court stress is laid upon the fact that the damage which has actually resulted from the flooding could not have been anticipated at •the time of the original trespass, and therefore could not then have been recovered, for. This consideration, it is urged, -ought to be decisive. But, while we agree that it is to be -considered in the case for what it is worth, it is by no means •necessarily conclusive. The plaintiff must fix some distinct wrong upon the defendant within the period of statutory .limitation, or the action must fail; and there is no such -wrong in this case unless the failure to prevent the flowing ■constitutes one. • The original act of wrong is no more in ■question now, after having been barred by the statute, than dt would have been if damages had been recovered or settled, ■for amicably; nor do we see that it can be important in a ■case like the present, where the wrong must be found in the-injurious flowing, whether there was or was not a wrong originally. If there was, it stands altogether apart from the
The mere fact that an opening was made by the- defendant, between the two mines, would not of itself have been a tres pass unless the defendant invaded the plaintiff’s premises in making it. Each party had a right to mine 'on its own side to the boundary. Wilson v. Waddell L. R. 2 App. Cas. 95; and if the plaintiff had first done so, the defendant might have done the same at the same point, and in that way have made an opening rightfully. The difference between the case supposed and this is, that here the defendant was found to have gone beyond the boundary and committed a trespass. But suppose the defendant had then made compensation for the trespass,'so far as it was then damaging, how would the case have differed from the present ? The opening would remain, made by the defendant, through which, if the water was allowed to collect in his mine, it must eventually pass ; and if he was under obligation to keep it within the bounds of his own premises, he would be liable for allowing it to pass: otherwise not. The fact that compensation was not actually made for the breaking away of the plaintiff’s barrier is immaterial when the statute has run, as has been already explained.
The case of Clegg v. Dearden 12 Q. B. 576, is not unlike in its facts the case before us. In that case, also, there had been a wrongful breaking through from one mine to another, and an injurious fiowage of water through the opening. The facts were- found by special verdict, and Lord Denman, in-pronouncing judgment, said, “ The gist of the action, as stated in the declaration, is the keeping open and unfilled up-an aperture and excavation made’ by the defendant into-the plaintiff’s mine. By the custom the defendant was entitled to excavate up to the boundary of his mine without leaving any barrier: and the cause of action, therefore, is the-not filling up the excavation made by him on the plaintiff’s side of the boundary and within their mine. It is not, as in the case of Holmes v. Wilson 10 Ad. & El. 503, a continuing of something wrongfully placed by the defendant upon
If this case was rightly decided, it should rule the one before us. It has been followed by the Supreme Court of Ohio in Williams v. Pomeroy Coal Co. 37 Ohio St. 583, in a case wdiich also closely resembles this upon its facts, and is not distinguishable in principle.
It seems to us that these cases are sound in law as well as conclusive. . The only wrongful act with which the defendant is chargeable, was committed so long before the bringing of suit that action for it was barred. Had suit been brought^ in due time, recovery might have been had for all damages which could then have been anticipated as the natural and probable result of the wrongful act. If the particular damages which have been suffered could not then have been
This view of the case is conclusive; but there is another that is equally so. The wrong to the plaintiff consisted in breaking down the wall which had been left by it in its operations. If any damage might possibly result from this which was not then so far probable that a jury could have taken it into account in awarding damages, the plaintiff was not without redress. It would have been entitled in a suit then brought to recover the cost of restoring the barrier which had been taken away; and if it had done so, and made the restoration, the damage now complained of could not have happened. It thus appears that complete redress could have been had in a suit brought at that time; and, that being the case, the plaintiff is not entitled to recover now for an injury for which an award of means of prevention was within the right of action which was suffered to become barred. The right which then existed, being a right to recover for all the injury which had then been suffered, including the loss of the dividing barrier, it would not have been competent for the plaintiff, had suit then been brought, to
The judgment must be set aside and a new trial ordered.