216 Pa. 195 | Pa. | 1907
Opinion by
This is an action in trespass for failure to provide surface support in the mining of coal. It was conceded at the trial that the appellee had been the owner in fee of the premises on which the damages claimed are alleged to have been done. He sold and conveyed the coal, together with mining rights and privileges to the appellant company. The grant is for “ All the merchantable coal in and underlying all that tract of land,” for which the right of surface support is claimed in this action ; “ excepting and reserving however, from and out of this conveyance five (5) acres of the ‘ D ’ bed of coal underlying the buildings and spring.” ' The usual mining rights are granted in the deed, among which are the following: “ With the right to mine and cany away all the said coal and with all the mining rights and privileges necessary or convenient to such mining and removal of the same.” The foregoing are the only covenants of the deed with which we have to do in defining the rights of the parties to this controversy. It is important to note that the right of surface support was not expressly waived, and the only question on this branch of the ease is whether there was anything peculiar in the grant, either of the coal, or of the mineral rights, and the reservations therein contained, to take this case out of the general rule uniformly recognized and followed by our courts, which provides that the underlying or mineral estate owes a servitude of sufficient support to the upper or superincumbent strata. This rule is settled law in this state and has never been departed from : Jones v. Wagner, 66 Pa. 429; Horner v. Watson, 79 Pa. 242; Coleman v. Chadwick, 80 Pa. 81; Carlin v. Chappel, 101 Pa. 348; Williams v. Hay, 120 Pa. 485; Youghiogheny River Coal Co. v. Hopkins, 198 Pa. 343; Noonan v. Pardee, 200 Pa. 474; Youghiogheny River Coal Co. v. Allegheny National Bank, 211 Pa. 319. The contention of the learned counsel for appellant that the grant of “ All the merchantable coal ” under
The only question remaining to be considered is whether there was any reversible error in the rulings- of the court below as to the proper measure of damages, or in the admission of testimony relating thereto. The rule is settled that the measui’e of damages for permanent and irremedial injuries to land caused by failure to give surface support is the actual loss in the depreciation of the value thereof. The permanence of the injury is the test for the application of the rule: Noonan v. Pardee, 200 Pa. 474. If the injury is reparable the cost of repairing may be recovered, and if the cost of repairing is greater than the diminution in the market value, the latter is the true measure of damages. In all such cases just compensation for the loss sustained by the trespass is what the injured party is entitled to recover. When the injury is permanent, the measure of damages is the difference in market value before and after the injury: Vanderslice v. Philadelphia, 103 Pa. 102; Fulmer v. Williams, 122 Pa. 191; Williams v. Fulmer, 151 Pa. 405 ; Thompson v. Traction Co., 181 Pa. 131. In the
The first eleven assignments of error relate- to the competency of the testimony of certain witnesses in fixing the depreciation in the value of the land in what is termed a lump sum. In order to establish the competency of the witnesses to express an opinion as to the depreciation in the value of the land on account of the injuries complained of, they were asked as to their familiarity with the fertility of the soil, the uses for which it was adapted and other preliminary questions of a like character. In this manner it was developed that the farm had been well watered with good spnngs and that it was especially adapted and used for dairy and grazing purposes. It is objected that testimony of this kind is speculative in character and
The fifteenth assignment of error broadly raises the question of the right of the appellee to recover any damages for the loss of the springs of water under the facts of this case. In support of this contention the rule of law is invoked, that injury to or destruction of surface water, or springs, by reason of the mining of coal, or other minerals, either from adjoining lands or from underneath the surface of the particular land, when the mining is done in a competent and workmanlike manner, is damnum absque injuria. It is true the law makes no provision for compensation to the owner of the surface for damages in such cases, unless it is clearly shown on the part of him who seeks to recover that the injury was done in a manner indicating malice or negligence on the part of the operator. This rule cannot be questioned in the ordinary grant of coal, where surface support is waived nor as we understand it is it denied in this case. It means that the operator has a right to mine and remove the coal in a proper manner according to the approved methods of mining without liability for such injuries as may incidentally result to the superincumbent strata. This rule, however, must be read and understood in the light of the facts in any particular case. In the case at bar if there had been no subsidence of the surface, no disturbance of the super-incumbent strata by reason of the mining and removal of all the coal underlying the same; or if it appeared as a fact that the springs were not destroyed by reason of the failure to provide surface support, there could be no recovery. This is the pinch of the case. The learned counsel for appellant contends that the uncontradicted testimony of the expert witnesses showed that the mining of the coal when sufficient surface support is provided, would cause the springs to disappear, and argues that the springs were not destroyed by reason of the
Assignments of error overruled and judgment affirmed.