Sloss-Sheffield Steel Iron Co. v. Sampson

48 So. 493 | Ala. | 1909

SIMPSON, J.

This is an action by the appellee against the appellant for damages caused by the operations of the defendant in mining coal under the lands of plaintiff, causing the surface of same to part and open, or crack, destroying a well and diminishing the value of his real estate.

The complaint does not state whether or not the defendant is the owner of the minerals under said land, nor by what right it was carrying on mining operations thereunder, nor does it contain any allegation with regard to the manner of excavating — whether done negli gently or improperly, or in a proper manner.

It seems proper to consider, first the main contention, around which cluster the special points in the case, and that is. as to the respective rights of the owner of the subjacent minerals and the owner of the superjacent surface. The complainant claims that the defendant is liable, without regard to the manner of operating the mines, because the owner of the superjacent surface has a right to demand that he shall not be disturbed in the enjoyment of his rights in the surface by the mining of the coal underneath, while the defendant contends that if it owned the minerals, with the right to mine them, which necessarily follows, it was its right to take out all of its coal without regard to whether- the surface was injured or not. Without entering into an analysis of the numerous decisions on this subject, a reading of them convinces u-s that, according to the great weight of authority, the principle is (agreeably to the maxim, “Sic útero tuo ut alienum non lsedas”) that, in the absence of any stipulation to the contrary, the owner of the mineral below the surface holds it subject to the obligation that he shall so mine it as not to injure the surface. This means merely the surface, and does not apply to wells and springs which are fed by subterranean streams.— 27 Cyc. 788; 18 Am. & Eng. Ency. Law, 555, 556; Mickle et al. v. Douglass et al., 75 Iowa, 78, 39 N. W. 198; Lillibridge & Lackawanna C. Co., 143 Pa. 293, 22 Atl. 1035, 13 L. R. A. 627, 24 Am. St. Rep. 544, 555; Youghiogheny R. Coal Co. v. Allegheny Nat. Bank, 211 Pa. 319, 60 Atl. 924, 69 L. R. A. 637; Noonan v. Pardee, 200 Pa. 474, 50 Atl. 255, 55 L. R. A. 410, 86 Am. St. Rep. 722. While our court has not directly decided the point, yet expressions in our own decisions recognize the principle, as in accordance with the best authorities. — Williams v. Gibson, 84 Ala. 228, 233, 4 South. 350. 5 Am. St. Rep. 368; Hooper v. Dora coal Mining Co., 95 Ala. 235, 238, 10 South. 652.

This matter is elaborately and ably discussed in the concurring and dissenting opinions in the case of Griffin v. Fairmont Coal Co., 59 W. Va. 480, 53 S. E. 24, 2 L. R. A. (N. S.) 1115, and note. While the majority opinion in that case argues very forcibly in support of the proposition that, where the owner of the surface has conveyed the minerals and expressed no- stipulations for the support of the surface, the owner of the mineral may take it all, without regal’d to the effect of the surface, yet the dissenting opinion and the note show that that is against the weight of authority, and the majority opinion itself admits that, when there is no conveyance from the surface owner, he is entitled to have the surface ■supported, and the annotator very properly says that the court “seems to have based its final decision against the existence of an implied reservation of support upon the particular language of the instrument by which the estates were severed.” — Page 1116 of 25 L. R. A. (N. S.).

The court erred in overruling the demurrer to the complaint as amended. The complaint should have stated the time when the grievance complained of occurred, and it should also have stated facts showing whether the defendant was a trespasser, or acted under any right, in making the excavation.- Mayor, etc., of Huntsville v. Ewing, 116 Ala. 576, 582, 583, 22 South. 984.

It results, also, from the principle above announced, that the court did not err in refusing to give the general charge in favor of the defendant-, nor in refusing to give the second, fourth, and fifth charges, requested by the' defendant.

The court erred in refusing to give charge No. 3, requested by the defendant. While there is a difference as to the commencement of the running of the statute of limitations between cases where the act complained of was unlawful in itself and those where the act was lawful and the damage claimed is consequential, yet, where the injury is continuing or recurring, the rule in each case is that damages can be recovered only for the injury occurring within the period of limitations. — 25 Cyc. 1137-1139; 19 Am. & Eng. Ency. Law, 200; Reed v. State, 108 N. Y. 407, 15 N. E. 735; Mayor, etc., of Huntsville v. Ewing, 116 Ala. 576-585, 22 South. 984; Tutwiler C. C. & I. Co. v. Nichols, 146 Ala. 364, 39 South. 764, 119 Am. St. Rep. 34; Ala. Consol. C. & I. Co. v. Vines, 151 Ala. 398, 44 South. 377, 378. While the first paragraph of charge 6, requested by the defendant, states the law correctly, yet the remaining part of the charge is merely argumentative, in answer to expressions used by the attorney in the argument of the case, and the court cannot be placed in error for refusing to give the same.

The judgment of the court is reversed, and the cause remanded.

Haralson, Dowdell, and Denson, JJ., concur.