49 So. 849 | Ala. | 1909
Appellees recovered judgment against the appellant in an action on the case for damages alleged to have been caused by the appellant (defendant) in mining coal beneath the surface of appellees’ (plaintiffs) lot at Horse Creek in such manner that the subjacent, support of the samé was impaired and the upper soil caused to crack open and settle doAvn. There was evidence tending to show that coal had been mined under the lot by a former owner of the underlying minerals several years before suit brought, and that, both before and after the point of time one year before suit brought, defendant had mined coal there. The settling doAvn of plaintiffs’ lot occurred less than one year before the commencement of the suit, Tim single question raised by the record and argument of counsel is Avhether the trial court erred in refusing to defendant charges Avhich put foiuvard the proposition that if the coal, the removal of Avhich left the upper soil without proper support,' and so caused its subsidence, was removed more than one year before the commencement of the suit, the plaintiffs could not recover.
The plaintiffs OAvned the surface; the defendant, the underlying minerals. The right to mine is servient to the right of the owner of the surface to have it perpetually sustained in its natural state — no question as to the right to have buildings sustained is involved — by adequate supports. — Williams v. Gibson, 84 Ala. 228, 4 South. 350, 5 Am. St. Rep. 368. The owner of the upper soil is entitled as of common right to support from subjacent strata, independent of the negligence of the owner of the minerals in working his mine. — Humphries v. Brogden, 12 Q. B. 739. So that the charge of negligence to be found in some of the counts neither added to nor detracted from the cause of action stated. Under the evidence it Avas open, perhaps, to the jury to find that
These cases went upon the theory that the injuries complained of had causal origin in the maintenance of a nuisance, and it was considered by them that the injurious consequences resulting from the nuisance, rather than the act which produced the nuisance, was the cause of action. “Nuisance, nocumentum, or annoy
The facts of the case under consideration constitute the plaintiffs’ cause of offense a nuisance, and meet the conditions laid down as for the maintenance of an action on the case whenever the injury may actually occur. The structure was in its nature permanent and continuous, but its damnfying effects did not occur until after the lapse of time; and it is a matter of practical importance, though perhaps not touching the principle involved, that they may not be known until they do occur. Perhaps a more accurate use of language^ without varying legal effect, would describe the first cause of plaintiffs’ injury as the destruction of a struct
Appellant urges upon our consideration the case of Noonan v. Pardee, 200 Pa. 474, 50 Atl. 255, 55 L. R. A. 410, 86 Am. St. Rep. 722. For precedent that case contents itself with a reference to an earlier decision of Bonomi v. Backhouse, supra, which was overruled on
In line with the authorities noted above, and the reasons upon which they proceed, we hold that a. cause of action accrues to the owner of the upper soil when the failure of support by the underlying strata, through causes put into operation by mining them, interferes with the utility and. enjoyment of the superincumbent soil.
Affirmed.