Piedmont & George's Creek Coal Co. v. Kearney

Boyd, C. J., delivered the opinion of the Court. The appellee sued the appellant for damages alleged to have been sustained by him by reason of the appellant removing the coal which supported the surface owned by him in a tract of land containing fourteen acres. The property was conveyed to the plaintiff in 1897, “except, however, all coal and other minerals on or underlying said above granted' property to the same extent and in like manner as excepted in the said deed from Maria Reese et al. to Daniel Ritchey and Stewart Arnold, above described.” In the deed referred to is this reservation: “The parties of the first part reserve to themselves, their heirs and assigns, all coal and other minerals that have been or' may hereafter be found on or in the said lands, together with the right to mine and remove the said coal or minerals at such place or places as may appear to them, the said first parties, their heirs or assigns, most suitable and convenient by tramroad, plane and dump houses or otherwise,” etc. The first four bills 'of exception embrace rulings of the trial Court on the admissibility of evidence, and the fifth presents its action on the prayers. The plaintiff offered three prayers, which were granted, and the defendant offered eleven, the first, fourth, fifth, tenth and eleventh of which were granted as offered and the third and eighth as modified, and the second, sixth, 'seventh and ninth were rejected.

Before passing on the exceptions separately, it will be well to ascertain what the law is as between the owner of the surface and the owner of the minerals, when those estates have been severed by such provisions or reservations as those uow before us. This is the first time this Court has been called upon to pass on the doctrine of subjacent support, where the surface and subjacent estates are owned by differ ⁵⁰¹ ent persons. The general rule of law is that when the estate in minerals “in place,” as they are sometimes spoken of in their natural bed, is severed from the estate in the surface, the. owner of the latter has an undoubted right of. subjacent support for the surface, and the owner of the estate in the minerals is entitled to remove only so much of them as he can take without injury to the surface, unless otherwise airthorized by contract or statute. There have been some discussions in the books as to the reasons upon which the rule was founded, but we have seen no case in which it has been unqualifiedly denied.

Even in Griffin v. Fairmont Coal Co., 59 W. Va. 480 , 53 S. E. Rep. 24 , 2 L. R. A., N. S., 1115, which has gone as far in sustaining the right of the owner of the minerals to remove all of them as any decision we have found, the general doctrine is recognized. "Without referring to the English cases upon which the/ original decisions in this country were based, the general rule announced above is sustained by many of the Courts of this country—the cases in Pennsylvania, where so much mining has been done, being especially numerous. Amongst others are Williams v. Gibson, 84 Ala. 228 , 4 So. Rep. 350 ; Collinsville Granite Co. v. Phillips, 123 Ga. 830 , 51 S. E. 666 ; Wilms v. Jess, 94 Ill. 464 ; Lloyd v. Catlin Coal Co., 210 Ill. 460 , 71 N. E. 335 ; Yandes v. Wright, 66 Ind. 319 ; Mickle v. Douglas, 75 Iowa, 78 , 39 N. W. 198 ; Erickson v. Michigan Land & Iron Co., 50 Mich. 604 , 16 N. W. 161 ; Chicago, etc., R. Co. v. Brandau, 81 Mo.

App. 1 ; Marvin v. Brewster Iron Min. Co., 55 N. Y. 538 ; Burgner v. Humphrey, 41 Ohio St. 340 ; Jones v. Wagner, 66 Pa. 429 ; Coleman v. Chadwick, 80 Pa. 81 ; Carlin v. Chappel, 101 Pa. 350 ; Williams v. Hay, 120 Pa. 485 ; Pringle v. Vesta Coal Co., 172 Pa. 438 , 33 Atl. 690 ; Robertson v. Youghiogheny River Coal Co., 172 Pa. 566 , 33 Atl. 706 ; Noonan v. Pardee, 200 Pa. 474 , 55 L. R. A. 410, 50 Atl. 255 ; Youghiogheny River Coal Co. v. Allegheny National Bank, 211 Pa. 319 , 60 Atl. 924 ; Miles v. ⁵⁰² Penn. Coal Co., 217 Pa. 449 , 63 Atl. 1032 (annotated, in 10 Am. and Eng. An.

Cases, 874). A number of the English cases are cited in the notes to Trinidad Asphalt Co. v. Ambard (1899), A. C. 594, to be found in 6 Am. and Eng. Dec. in Eq. 643, and in some of the cases referred to above, and we will not mate further reference to them. Although the rule has been so generally adopted, the parties can modify it or avoid its application by inserting provisions in the grants or leases which, expressly or by necessary intendment, relieve the owners of the minerals of the duty to furnish subjacent support, and in many of the cases which have been before the Courts, the question has been whether that was done by the particular provisions, and, if so, to what extent.

We have quoted above those which must govern in this ease. There are many decisions in which provisions very similar to these have been held not to be sufficient to relieve the owners of the minerals of their duty to support the surface. In Mickle v. Douglas, supra, there was a lease with the right to mine, “all the coal;” in Burgner v. Humphrey, supra. there was a grant of “all the mineral, coal, iron ore, limestone, and all other minerals,” with the right to enter upon the land and search and explore thereon for said minerals, coal, etc., “and when found to exist on said land to dig, mine, and remove the same therefrom;” in Horner v. Watson, 79 Pa. 242 , the grant was all the coal, with the right to enter on the lands for the purpose of “mining, excavating and removing said coal;” in Carlin v. Chappel, supra, the deed of the surface reserved “all the coal,” with the right of ingress, egress and regress, “for digging, mining, excavating and conveying away said coal;” in Weaver v. Berwind-White Coal Co., 216 Pa. 195 , 65 Atl. 545 , the grant was for “all the merchantable coal in and underlying all that tract of land” for which the right of surface support was claimed, excepting five acres under the buildings and spring, the usual mining rights, were granted “with the ⁵⁰³ right to mine and carry away all the said coal, and with all the mining rights and privileges necessary or convenient to such mining and1 removal of the same.” See also Dignan v. Altoona Coal and Coke Co., 222 Pa. 390 , 71 Atl. 845 , one of the latest on the subject. In those cases it was held that the right of subjacent support was not released in express terms or by necessary implication by the words used.

Many others in accord with that position might he cited, hut we will only refer to the note in Griffin v. Fairmont Coal Co., 2 L. R. A. N. S. 1115, and the note to Miles v. Penna Coal Co., 10 Am. & Eng. An. Cases, 874, where many of them are collected. The case of Miles v. Penna.

Coal Co. is an illustration of how such right can he released, while on the other hand that of Youghiogheny River Coal Co. v. Hopkins, 198 Pa. 343 , 48 Atl. 19 , shows how careful that Court is to sustain the right, unless it is released by express words or necessary implication. The case of Griffin v. Fairmont Coal Co., supra, is the only one we have found where language similar to that in the reservation in the deed now before us was held to he a release. When the doctrine or right of subjacent support is recognized, as it is with practical unanimity by the authorities, it seems to us to he far better to require those who-desire to enter into stipulations by which the one party to-the transaction is to part with the right which the law gives-him, and the other is to be relieved of a duty which the law imposes upon him, to use language that will necessarily import or clearly express such intention. It should he either by express words or necessary implication, and in our judgment the language used in this reservation was not sufficient to relieve the appellant of its duty to support the surface.

It is also held by the authorities that a failure to leave sufficient support for the surface is negligence and may he so declared on. Yandes v. Wright, supra; Jones v. Wagoner, supra; Carlin v. Chappel, supra. ⁵⁰⁴ Having thus ascertained the rights and duties of the respective parties to this suit, by reason of the ownership of the surface by the plaintiff and the coal by the defendant, we will now consider the particular' grounds of complaint urged against the rulings of the Court by the appellant. The first and' second exceptions and the defendant’s second prayer may be considered together. In the examination of the witness, Jacob D. Wilson, he was asked 'this question: “Was there any difference in the surface as to moisture before and after the fall and breaks of the surface?” That was objected to, and the plaintiff proffered to show, “that the breaks or falls were such that every time it rained the rain ran down these crevices or spaces in the breaks and ran off the surface; and the result was that the land would not hold any moisture.

It would dry out immediately afterwards, and-the soil became in a hard condition that would amount to a drought, except at such times of continued rain. The land would not hold any moisture, and therefore ruined and of no value.” The objection was overruled and that ruling constitutes the first bill of exceptions. The witness answered, “Yes, sir; it was,” and then followed this testimony: “Q. What was the difference ? A. The steam comes up these cracks, as I told you, and snow all melts, and it don’t hold no moisture—the water goes straight through.

Q. Where does the water go when it rains? A. Down those cracks. Q. Do you mean to say it is drier afterwards? A. Yes, sir; it used to be two or three days before I could plow, but now I can plow the next day.” He had previously described the breaks with particularity.

When Miss Kearney, .plaintiff’s sister, was on the stand, she described the cracks, which she said they first noticed in May, 19 OR She said they “stalled over towards the bam and ran across the level, and stopped for a long time.” “Then it started and went down behind the barn.” She “was milking in the bam at the time and the wall split open and a tin cup went down sidewise into the crack. The barn ⁵⁰⁵ tipped over four or five inches on one side of the foundation. No other disturbance for two months, when another crack came in the foundation, one that you could stick your finger in. About a year afterwards the house began to crack.

It has kept up more or less ever since. . Just a week ago the ground opened just below the house—took several panels out of the fence.” She was asked the question: “How does the soil seem to he now as compared to what it was before the injury as to moisture—I mean the soil generally ?” That was objected to and-the same proffer was made as above, in reference to the witness Wilson. The objection was overruled and the witness answered, “That the soil had dried out, was hard, much harder than formerly, and they now have to water it.” She said the cows would step into the cracks and hurt their legs—that the break took a whole row of trees. She also said, “When it rains, there is no stop to it.

It seems like it runs down the cracks.” “The cracks are so large that a wagon could run through. - It just looks like a wagon road running through. They open up on this side, and go a little piece, and then on the other, and the middle piece drops in.” “Something like steam or smoke or fog rises from the holes, or crevices at times. You can drop a rock down and hear it sound as if it came from the depths of the earth.” The defendant by its second prayer asked the Court to instruct the jury “that they cannot under the pleadings and evidence in this cause allow anything for the reduction of moisture in the surface even though they should believe that the reduction of the moisture in the land was the direct result of the mining of the coal under the land of the plaintiff'.” It will he observed that that prayer asked the Court to instruct the jury that they .could not “allow anything for the reduction of moisture in the surface.” The testimony shows that- the depth of the cover was three hundred and fifty or four hundred feet, and it was admitted at the opening of the case that “all the coal to a depth of sis feet- ⁵⁰⁶ under the plaintiff’s property was removed by the defendant company after the year 1906, and that no stumps or pillars were left, and that this was done before the injuries to the surface.” The rule is well established that the owner of the coal is not liable to the owner of the surface for injuries resulting from the diversion of what are spoken of as hidden streams, caused merely by the removal of the coal. In Coleman v. Chadwick, 80 Pa. 87 , relied on by the appellant, the Court said: “So far as we can judge from the record, the loss of the plaintiff’s springs was occasioned by the ordinary operation of mining, and would have occurred though no part <>f the surface had been broken.

Mining must interfere, more or less, with those subterranean streams and percolations of water which appear upon the surface as springs; to say that the owner of the substrata shall be accountable in damage for their disturbance, is to say that he shall have no use whatever of his minerals, for, without interfering to some extent with such waters, mining is impossible.” That seems to us to be a very sensible and necessary rule to adopt. But the principle referred to. in Coleman v. Chadwick does not reach the question here involved, for, conceding to its" full extent that no damage can be recovered for the diversion of the water, if the coal is worked in the ordinary and proper way, if it is so worked as to take away the support 'of the surface, then it is not worked in a proper way. This prayer proposed to disallow anything for the reduction of moisture in the surface, while it must be clear that if the loss of moisture is the result of the breaks in the surface, caused by want of the support which the defendant owed the plaintiff’s surface, then the loss of moisture is like any other damage which is the result of that wrong done the plaintiff. The prayer was too broad.

The cases in Pennsylvania show the distinction we have pointed out. In Kistler v. Thompson, 158 Pa. 139 , 27 Atl. 874 , the Court said: “Nothing could be more clear or more correct than the charge of the learned Court below to the ⁵⁰⁷ jury on all the legal aspects of the case.” Judge Yc-Ilvaiwe, in the lower Court, in speaking of a spring which the plaintiff claimed was valuable to her property, said: “In 1889 this spring disapjDeared, and she alleges that the spring disapioeared by reason of the subsidence of the surface, and the cracking of it, on account of the support being withdrawn by those that mined the coal, they having failed to leave sufficient coal to support the surface.” He then-went on to explain the duties and liabilities of the owner of the coal when the title to the surface is in another party, and he said he had the right to remove the coal, “and if, in so doing, he should interfere with the hidden streams of water that may be running through the earth, and thus drain the spring o’f another, he would not be liable for damages, if the spring-failed simply because, in the ordinary operation of the mine, some subterranean stream was tapped, and by this means the water, in place of flowing to the opening in the ground where the spring was, flowed to some other place.” He then went on to say however, that notwithstanding his right to remove the coal, he is required to leave enough to support the surface, or if he takes all of it out, he must substitute sufficient supports to keep the surface in place, and he added: “How, if he fails to leave sufficient support, * * * and by reason of this failure to leave sufficient support the ground sinks, subsides and cracks, and that sinking and cracking divert a stream of water, then he would be liable, because that would be the direct result of his wrongfully withdrawing the support that is necessary and sufficient to sustain the surface.” In Rabe v. Shoenberger Coal Co., 213 Pa. 252 , 62 Atl. 854 , annotated in 5 Am. & Eng. An. Cases, 216, the plaintiff had a dairy farm which was usually well supplied with water.

It had twelve springs on it, with water in every field. The plaintiff claimed that five of the springs were destroyed by the cracks in the land. The question was, “how much was the farm depreciated in value by the loss of the springs?” The controversy there was as to the measure of damages, but ⁵⁰⁸ the Court expressed no doubt about the right to recover for the loss of the springs destroyed by the cracks in the land. In Weaver v. Berwind-White Coal Co., supra, the rig’ht of the plaintiff to recover for loss of springs, which resulted from the removal of the surface supports, was fully recognized.

So without further discussing that question we think there was no error in the rulings in the first and second bills of exception, or in rejecting the defendant’s second prayer. We do not find any error in rejecting the sixth prayer. In the first place, Mr. Brophy, the president of the appellant company, who is a skilled and intelligent mining engineer and familiar with the property, testified that he did not know whether the removal of