218 Pa. 82 | Pa. | 1907
Opinion by
This is an action to recover damages which the plaintiff alleges she has sustained by reason of the defendant having mined and removed the coal from beneath and adjacent to the several lots of ground owned by her in the borough of Hughestown, Luzerne county. There were dwelling houses and other improvements upon the lots at the time of the injuries complained of. The defendant was the owner of the coal, the mining of which it is claimed caused the injuries to the plaintiff’s property. In the original statement, the plaintiff alleges that “ the defendant negligently and carelessly so mined said coal that the support to the surface was insufficient to maintain the same whereby the said surface of said above described lots, on the said thirteenth day of January, 1901, fell in, destroying said surface.” In her amended statement she alleges that the defendant was engaged in mining and removing the coal from lands in the neighborhood and adjacent to the premises of the plaintiff, and, while so engaged, caused the supports under the plaintiff’s premises to be so weakened that the same gave way causing injuries to her property. The defense was that the plaintiff had failed to show that there was any coal mined directly beneath the premises within six years prior to the bringing of the suit which resulted in injury to the surface or the improvements thereon.
Judgment having been entered on the verdict in favor of the plaintiff, the defendant company has taken this appeal. The first, second, third and fourth assignments are in substance that the court erred in not withdrawing the case from the jurjq and, after verdict, in not entering judgment for the defendant on the ground that there was no sufficient evidence to support the allegations of the statement. We do not think this complaint is well taken. The learned judge in his charge and in his opinion on the motion for a new trial and for judgment for defendant clearly points out the testimony which justified the submission of the case to the jury. We need not refer to this testimony in detail, as it appears by the opinion of the trial court. The evidence consisted of the official maps of the different veins of coal which showed the mining, the mining operations, and the dates of mining beneath and adjacent to the plaintiff’s surface, and also of the testimony of several witnesses. An examination of the evidence convinces us that it was sufficient, at least, to send the case to the jury. The alleged causes of the injury to the plaintiff’s surface were not only the withdrawal of proper supports for the surface within six years of bringing the suit, but also the negligent mining of the coal within the same time. If either or both of these causes were sustained by the testimony the plaintiff was entitled to recover: Pringle v. Vesta Coal Co., 172 Pa. 438. The court instructed the jury that the cause of action arose, not when the cave or subsidence took place, but when the support of the surface was so weakened that it might fall, and told them that the cause must have occurred within six years of bringing the suit. He further instructed them that if there was work in the mines directly beneath the plaintiff’s surface which caused the weakening of the supports to the surface within six years the plaintiff could recover for injury to the land and the improvements thereon. He also instructed them that the plaintiff was entitled to lateral support of the surface
As appears by the evidence, the plaintiff’s predecessors in title since 1871 were the owners of the surface and not of the coal. One of these parties in the plaintiff’s chain of title, Livingston, conveyed the property in 1897, excepting the coal, and reserving the right to remove it without liability for damages. At no time, so far as the evidence discloses, did Livingston have title to the coal. The exception, therefore, in his deed amounted to nothing, and the defendant company, which was a stranger to his title, could not protect itself by the reservation to Livingston of the right to remove the coal. The third assignment of error has no merit.
The fourth assignment of error alleges that a part of the charge was misleading. The judge, overlooking the averment in the statement that the defendant was the owner of the coal, stated in the first part of his charge that there was no deed or other conveyance showing that the defendant company was the owner of the coal beneath the plaintiff’s property or had any. right to mine it, and said that in most cases of this character that the miner defendant showed title to the coal and his right to mine and remove it. It is claimed that this part of the charge was misleading. But we think the court cured this statement in the subsequent part of his charge in which, after referring to the fact that he had not seen the plaintiff’s statement until it had just then been brought to his attention, he read that part of the statement which averred title to the coal in the defendant company, and then concluded by saying: “ Such was the charge of the plaintiff at the time she brought
The assignments of error are overruled, and the judgment is affirmed.