Weitzell v. West Virginia Pulp & Paper Co.

Adkins, J., delivered the opinion of the court. This was an action of tort for alleged injury done the property of appellants by the appellee in pillaring and removing coal from its property up to thei county road lying between the properties of the appellants and the appellee. There are two counts in the narr. The first alleges the ■ownership of the respective properties; the valuable buildings and other improvements on the appellants’ lot; the situ ⁵³⁵ ation of said lot on a steep slope known as “Wesfcemport Hill”; that said lot and the land contiguous, adjacent to and in the neighborhood thereof, were underlaid with coal which supported and maintained the surface of all the said property; that appellee, prior to the happening of the injuries complained of was engaged in the operation of removing coal from under the property adjacent to and adjoining thei premises of the appellants, which coal helped to support the appellants’ said property; that appellee, on or about the first day of August, 3918, dug into and under the tracks or-parcels of land lying contiguous to appellants’ property and on the lower side thereof, and removed the coal therefrom without leaving any support or pillars to maintain appellants’ prop^ erty' or the property ad.j acent and contiguous thereto, well knowing that the said coal could not be so removed without damaging and ruining the said land and buildings of appellants, and so recklessly dug, removed and pillared the said coal that as a result therefrom the lateral support of the appellants’ property was taken away and the foundation of their house was injured, and the walls, plaster and papering thereof were damaged and a valuable cistern thereon was destroyed, and other damage to the property was thereby caused, and the said property has thereby been rendered unfit as a dwelling, and has depreciated in value, all of which damage resulted from the negligence of the defendant as aforesaid.

The second count differs from the first in that it attempts to cover injury done by removing coal from under property not immediately adjacent to appellants’ property by adding the words “or under the property below and within a very few feet of said premises, and almost adjacent to and almost adjoining said premises, and so near said premises that such pillaring could not safely be done without damage to the plaintiffs’ property under all the circumstances, and which said coal "so pillared helped to support and maintain the plaintiff’s said premises.” And that “the defendant know, or ought to have known, that the said coal could not be re ⁵³⁶ moved without damaging and ruining the said land and buildings of the plaintiffs.” Appellee plead the general issue plea and the plea of res adjudícala., on the first of which pleas issue was joined. The second was traversed and issue joined on the traverse. There was no testimony offered on either side on the question raised by the second plea, nor was there any evidence tending to show negligence in the manner of removing the coal. And it is strongly contended by appellee that there was no evidence legally sufficient to> show that the injury to appellants’ property was caused by any of the acts of the appellee complained of.

But in the view we take of the case it will not be necessary to decide that point. There is evidence in the record