204 Pa. 158 | Pa. | 1902
Opinion by
It was held in Noonan v. Pardee, 200 Pa. 474, that where there has been a horizontal division of land, and the owner of the subjacent estate removes coal or other mineral without leaving sufficient support, in consequence of which the surface sinks, the cause of action is the removal of the coal, not the subsidence of the surface, which is only consequence and evidence of the wrongful act of removal, The subject is one of inherent difficulty. On the one hand the surface owner may suffer no actual damage, and be in entire ignorance of any invasion of
The case at bar was tried before the jury, and argued in the Superior Court before the decision in Noonan v. Pardee, and the learned judge of the common pleas held that the cause of action was the subsidence of the surface, and therefore that every new subsidence was a new cause of action. It is admitted that this was in direct conflict with Noonan v. Pardee, and erroneous, but the question for us is whether the error was one for which the judgment should now be reversed. It was a view of'the law, erroneous as it turned out to be, in which all parties concerned at that time, including appellant, concurred. One of appellant’s points presented at the time was: “ The plaintiff’s right of action accrued whenever there was an apparent injury to any of his farms from breaking or caving in of the surface, and the statute of limitations would run from that time, and would bar all actions for injuries apparent or reasonably prospective, arising or resulting from mining previously done by the defendant company.”
None of the errors assigned in the Superior Court complains of the action of the trial court on this subject or raises any question of the law as there laid down. It is a clear case of an error to which appellant at least contributed if he did not procure, and of which therefore he is not now entitled to complain: Bigham’s Appeal, 123 Pa. 262; Fisher v. Farley, 23 Pa. 501.
We come to the question, therefore, whether there was any error in the judgment of the Superior Court as the case was presented to it.
Plaintiff in 1899 brought this action for damages for the subsidence of the surface upon various parts of his tract of thirty-one acres specifically described in his .declaration. It appeared
The case therefore really turns on the effect of the notice under the act of 1876. The act was construed in Hileman v. Hileman, 172 Pa. 323, to be intended to relieve from the necessity of multiplied actions, and to enable the plaintiff in an action for a trespass of continuing nature to recover the damages down to the date of the trial, instead of being obliged to bring a second action after his right had been established by the first. But the act, as was convincingly shown by our Brother Dean, did not apply to separate causes of action, even though similar in kind and in effect, nor did the act lead to any such absurd result as that an action brought before any wrong was committed, could end in a verdict for a wrong done thereafter. The learned judge below followed Hileman v. Hileman, and on the theory of the trial that each separate subsidence in the surface land was a new and separate cause of action, he was right in holding that the notice of the intention to claim damages to the date of the trial could apply only to the cause of action declared upon, to wit: the subsidences of the surface on the twenty-nine-acre tract, and that as to any subsidences on the thirty-one-acre portion of the whole tract, if existing in 1894, and not declared for they were barred, but
J udgment affirmed.