200 Pa. 474 | Pa. | 1901
Opinion by
The plaintiffs purchased a lot by deed of April 22, 1890, in the borough of Hazleton, Luzerne county, and erected upon it a dwelling house. While they occupied the house, on January 11,1892, the ground under it and in the neighborhood, subsided, leaving a saucer-like depression about three fegt deep in the middle and extending over about two acres. The subsidence or “ cave in ” was caused by the mining of coal by the defendant, or his predecessors, under the subsided land; whether immediately under plaintiff’s lot, or at some distance, is in dispute on the evidence; it is also in dispute as to the time the miniug was done which caused the immediate injury. The plaintiff’s deed was from one McAllister, whose title ran back through several grantors to one Michael Dugan, the last named grantee’s deed, being from the Lehigh Yalley Railroad Company, and is dated July 31, 1869; at that date the company was owner of both the surface and the coal underneath. In the deed is this provision :
“ And it is hereby made a condition of this grant, and expressly covenated and agreed, that the said Lehigh Yalley Railroad Company, their successors and assigns, do except and reserve and shall always possess the exclusive privilege of mining under the lot of land herein conveyed, for coal and other minerals ; and, for that purpose may extend such tunnels, drifts or excavations under the same, or any part thereof, as shall be
The defendant’s testator had, about the year 1874, become the lessee of the coal from the Lehigh Valley Railroad Company. It will be noticed, this was many years before the plaintiff’s conveyance of April 22, 1890; at the date of the injury, defendant was in possession of and operating the mines.
We do not think the stipulation in the railroad company’s deed, so far as the evidence in this case is concerned, modified the defendant’s liability as an operator or miner of the coal underneath the surface. The covenant in the deed neither expressly nor impliedly relieved the covenantor, or its lessees, from the duty of leaving sufficient support for the surface. It is little more than a reservation of the coal for itself and assigns and a stipulation for the performance of a common law duty on its part and that of its assigns.
There was evidence, that the mining which caused the injury had been done directly underneath the plaintiff’s lot many years before the date of his deed and that none was done after-wards ; and there was evidence on the part of the plaintiff that considerable mining had been done underneath after their occupation. In both aspects of it, this evidence had a direct bearing on the issue as made up by the pleading. The suit was trespass against the lessee of the railroad company.
The declaration is as follows:
“ On the 11th of January, A. D. 1892, the said defendants, under a grant of coal under said lot, said grant being made subsequent to the deed from said company to said Dugan, removed the coal under the surface earth of said Lot No. 9, and so cut, broke and displaced the earth that the surface fell in and the dwelling house of the plaintiff thereon became-greatly damaged, whereby the surface of said Lot No. 9, of the value of $1,500, was wholly destroyed; and the house thereon damaged in $3,000, wherefore, plaintiff claims from defendant $4,500.” The injury and only injury here alleged, is, that de
The first question raised by the assignments of error, is, what was the date of the cause of action ? A cause of action, is that which produces or affects the results complained of. Where there has been a horizontal division of the land, the owner of the subjacent estate, coal or other mineral, owes to the superincumbent owner, a right of support. This is an absolute right arising out of the ownership of the surface. Good or bad mining in no way affects the responsibility; what the surface owner has a right to demand is, sufficient support, even, if to that end, it be necessary to leave every pound of coal untouched under his land: Berwind v. Barnes, 13 W. N. C. 541; also the English case, Harris v. Ryding, 5 M. & W. 60, in which Baron Parke uses this language : “I do not mean to say that all the coal does not belong to the defendants, but they cannot get it without leaving sufficient support.” We have followed rigidly this rule, as thus tersely suggested, in all our decisions on the subject, and they have been many. Of course, defendant had a right to all the coal under this lot, but, he had no right to take any of it, if thereby, necessarily, the surface caved in. The measure of his enjoyment of his right must be determined by the measure of his absolute duty to the owner of the surface. So, there is nothing gained by adducing evidence of good of bad mining, or by a discussion of that subject.
. But none of these reasons appear in this class of cases. When the right to sufficient support has been violated, the cause of action, it is true, arises, but the owner in possession when the consequences follow, is the one who suffers. There may, in the interval, have been several owners, none of whom sustained
There is some evidence tending to show that the “ cave in ” was because of work within six years by defendant, in the Mammoth seam, the first stratum of coal below the surface; also evidence tending to show very recent mining in the Wharton seam, the next one underneath the Mammoth, and that from one or the other cause, or from both combined, the subsidence was caused. On the whole case we deduce these propositions:
1. If the failure to furnish sufficient support to the surface, was from mining, either by defendant or his predecessors, more than six years before suit, the action is barred by the statute of limitations.
2. The right to sue passes to the surface owner who is in possession when the subsidence occurs, without regard to the date of his conveyance ; this right is barred by the statute of limitations if the cause of the subsidence arose more than six years before suit brought.
3. Even if the main body of the coal under plaintiff's land has been mined out more than six years before suit brought, yet, if defendant has done additional mining by removal of coal left in previous work, or by robbing of pillars within six years before suit, and without such additional mining the surface would not have subsided during plaintiff’s occupancy, yet if such additional work or mining hastened the result, the defendant is answerable in damages therefor.
4. If defendant, by mining within six years another underlying seam (the Wharton), whereby the pillars and support left in the seain above (the Mammoth), which otherwise would have been sufficient support to the surface, have been rendered insufficient, and the “ cave in ” occurred, defendant is answerable to plaintiff in damages.
In a case of this character, it is of the utmost importance that the averments should be more specific as to the time the coal was mined under the lot and as to who mined it. While, probably, we would not reverse for this paucitydn the statement nevertheless, it would greatly aid in a correct review of the case if all the grounds of action were clearly' and more specifically stated.
Bnt the learned judge of the court below went much further than instruction on the matter so meagerly averred and which was the only issue in the case. Evidence was offered and received, tending to shoAv, that defendants were mining coal at a distance from the lot in question in other parts of the Hazleton mine; from this evidence, plaintiffs argued, that even if their property had not been injured from lack of surface support in the mine underneath it, the subsidence Avas caused at the point under the lot, by removing lateral support at other mines some distance from the lot in question. There was some evidence given to sustain this view, and the court charged as follows:
“ It would appear generally from the testimony that the injury complained of here did not come from the immediate mining and its consequences. Did it come from any other source ? Mr. McNair has testified (and he is a mining engineer and has been, in charge of these mines and knows all about the inside operation of them) that there was no immediate mining under this property to the best of his judgment, since 1858. If you should find that this injury did not come from the immediate mining under the property, did it come from the general mining carried on by these defendants, in the Hazleton mines, which were generally a part and parcel of these mines ? If it did, and you should so find, then these defendants under the law would be liable in damages for the amount of the injury which you find the plaintiffs sustained.”
The defendant assigns this instruction for error. When we
“ The rule that the owner is entitled to lateral support for his ground extends only to support for his ground in its natural state, and does not include such support for the protection of buildings, or other structures, placed upon it. Where, by reason of an excavation, without negligence made by defendant on his own land, the land of the plaintiff sinks or falls away, the measure of damages is not the diminution in value of the lot of the plaintiff, by reason of the defendant, but the amount of injury actually done to the plaintiff’s land. The measure of the damages where land is taken by right of eminent domain, which is the difference between the value of the whole of the plaintiff’s land before the taking and its value immediately afterwards, has no application in such ease.”
We do not decide, that plaintiffs might not have, originally, embraced in the same statement this cause of action, for we are of opinion they might have done so. But they did not; they could not recover on it when they alleged but the one cause, and that a different one. It was plainly error to admit, under this statement, the evidence tending to show a destruction of lateral support. The defendant had not been called into court to answer such complaint, and ought not to have had a possible verdict on that ground against him. It is now too late, under the authorities, for plaintiff to introduce this new cause of ac
Appellant’s third assignment of error is sustained; the others are not; we have noticed them to the extent of pointing out the course the trial should take, upon a new venire, so that, if possible, we may be saved from a second review.
The judgment is reversed and a venire facias de nove awarded.