198 Pa. 343 | Pa. | 1901
Opinion by
In mining coal under a lease to it by the appellee, the appellant caused injury to the overlying surface of one Robertson, and in a suit brought by him against it damages were recovered. Thereupon this coal company brought the present suit to compel Hopkins, the appellee, and its lessor, to pay what it, in pursuance of the judgment against it, had paid to Robertson, together with costs and expenses. The judgment now reviewed was in favor of the defendant on his demurrer to plaintiff’s statement. Turning to it, we find the following clause from the lease, upon which the right to recover depends: “ And together .with said coal, and as appurtenant thereto is hereby granted and conveyed the free and uninterrupted right of way over, into, under and through the said tract as above described, at, to and from such point or points, and in such manner as may be necessary, proper or convenient for the purpose of digging, mining and transporting or carrying away any and all of the said veins or strata of coal hereby demised. Together with all the mining rights, privileges and easements necessary or useful for the convenient draining, ventilating and operating openings into said veins and otherwise, some of which privileges are the
The declaration, as stated by the court below, is not so full and minute as it should be in stating the character of the injury done to Robertson’s property, and the facts out of which the liability to him arose; but in passing upon the question before us, we assume, what seems to be conceded by both sides, that the allegation of the plaintiff is that it had been compelled to pay Robertson for damages sustained by him in the sinking of the surface, which the jury in his suit against it found had not been properly supported by it in mining the coal. The question is, therefore, simply whether under the lease by Hopkins to the coal company he is bound to reimburse it for the damages recovered against it by Robertson, a stranger to the agreement, whose surface had subsided as a result of the removal of the coal beneath it. The contention of the plaintiff is that Hopkins must pay, because a covenant to protect it is found in the following words of the clause quoted: “And all damages direct or consequential and claims therefor, resulting from the mining and removal of said coal, in the doing of any and all the matters and things hereinbefore described, are hereby waived and relinquished by the said party of the first part; ” but, even if it be true that such covenant is there found, the concluding words, “ provided the party of the second part takes all ordinary precautions usually taken in mining and removing coal,” seem to be overlooked. “ Ordinary precautions ” mean, in mining coal, proper support to the overlying surface: Jones v. Wagner, 66 Pa. 429; Horner v. Watson, 79 Pa. 242; Coleman v. Chadwick, 80 Pa. 81; Carlin & Co. v. Chappel, 101 Pa. 348; Robertson v. Youghiogheny River Coal Co., 172 Pa. 566. If such support had been given by the coal company to the surface of Robertson, there would have been no subsidence, and his suit would not have been brought, dire admission by the appellant
