255 Pa. 617 | Pa. | 1917
Opinion by
Previous to 1896, the heirs of William Stone owned and operated a coal mine in Allegheny County underlying a tract of land, a part of which they acquired under a deed conveying to them “all the......coal and all other minerals lying in and under the surface” of the land without liability “for any damage done to the surface of said described tract of land, in consequence of mining and working out said coal by the usual mode of mining and working the same.” The grantees also to have the “perpetual right and privilege of passing through and under said described tract of land with other coal and minerals, etc.” Subsequent to the deed to the. Stone heirs, the surface of the tract was conveyed to Anna S. Frederick, one of the defendants, the deed “excepting and reserving therefrom and thereout all the coal underlying the same and the right to mine, take and carry away all said coal and also the right to use and occupy any and all entries under said tract of land and the right to enter upon said tract of land for the purpose of repairing any entry or entries when it becomes necessary and the right to use said entries for the transportation of any coal that lies in that vein or stratum” and without liability for surface support.. The work of mining the coal was suspended in 1896 at which time about fourteen acres remained unmined. Nothing further was done until December 9, 1911, when a lease of the remaining coal was made to plaintiffs who proceeded to put the mine in repair and began taking out the unmined coal. In doing so they were obliged to pass through the entry
There is evidence that in 1907 defendants dug a trench or ditch on their land from the creek to the pit-hole and diverted the water,-mud and sewage of the creek into the mine. Following plaintiffs’ possession under their lease, they turned the water of the creek into the original channel, thereby preventing it from' flowing into the pit-hole whereupon defendants again changed the natural course of the run, causing the water to flow into the mine through the pit-hole opening. Defendants also made two other openings in the bed of the stream, thus permitting water and sewage to enter the mine at these additional places. One was made March 10,1914; another July 16,1914. They also deposited sewage and rubbish in the air shaft leading into the mine. Plaintiffs alleged these acts of defendants put them to great expense to keep the passageway clear and that at one time a cessation of operations in the mine was made necessary until the debris could be removed. Following a number of ineffectual attempts to induce defendants to desist from interfering with the operation of plaintiffs’ mine, an action of trespass w;as begun to recover the cost of cleaning the mine and for a loss due to suspending operations while the work was being carried on. There was also a claim for punitive damages. The actual loss, cost of cleaning the mine as claimed by plaintiffs, was $4,967.55.
There was a verdict^ for plaintiffs for $1,620 followed by motions for a new trial and judgment non obstante veredicto, which were overruled and judgment entered on the verdict. ■ Defendants appealed.
Defendants also allege the court failed to adequately instruct the jury regarding the measure of damages. The case was tried on the theory that defendants were liable for the cost of removing such part of the obstructions as had collected or were deposited in the mine by reason of acts subsequent to the time plaintiffs took possession under their lease. The large volume of testimony taken indicates clearly that all parties understood this to be the proper measure of damages, the only dispute being the amount and extent of liability. The jury could therefore not well have been misled as to what damages, if any, they should allow. The court, after referring to' the figures given by plaintiffs bearing on the cost of removal of the accumulations, charged that “the expense was something very large; it amounted to the employment of one man for a very considerable length of time, and it is for the plaintiffs to satisfy you that they actually spent that money as a result of the wrong done by the defendants, and if they have not made that clear to your satisfaction, of course you cannot allow damages for it. It is the business of a plaintiff who claims damages to show what his damages are, and if this money was spent generally cleaning out the mine, and part of it was due to a condition that existed before they rented, they cannot claim that. They rented it as they found it. So you will keep that clearly in your minds in figuring the damages, if you come to the question of damages.” ■
In view of the fact that all damages claimed were the
Defendants also allege error on part of the court below in allowing the jury to impose punitive damages. There was evidence of repeated wrongful acts on the part of defendants, notwithstanding plaintiffs’ frequent protest that their mine was being injured and its operation interfered with and that defendants disregarded these protests and threatened plaintiffs or their employees with bodily harm if they attempted to close the openings and prevent the water of the stream from flowing into the mine. Under these circumstances the court was justified in charging that if the jury Concluded the trespass was wilful and malicious on the part of defendants they might allow punitive as well as actual damages: Nagle v. Mullison, 34 Pa. 48; Pittsburgh, Cin. & St. Louis Ry. Co. v. Lyon, 123 Pa. 140; Rider v. York Haven Water & Power Co., 251 Pa. 18.
Defendants also deny the right of plaintiffs to sue for trespass committed by defendants long after the original operation of the mine ceased and rely in their argument on Webber v. Vogal, 189 Pa. 156, and Patterson v. Graham, 164 Pa. 234. These cases are not in point, for the reason that in the present case the deed under which plaintiffs’ lessor claimed gave to the grantees the perpetual right and privilege of passing through and under the land with other coal and minerals and the deed for the surface to defendants contained a reservation of the coal with the right to use the entries for transportation
The assignments of error are all overruled and the judgment is affirmed.