Noonan v. Pardee , 200 Pa. 474 ( 1901 )

Opinion by

Mb. Justice Dean,

The plaintiffs purchased a lot by deed of April 22, 1890, in the borough of Hazleton, Luzerne county, and erected upon it a dwelling house. While they occupied the house, on January 11,1892, the ground under it and in the neighborhood, subsided, leaving a saucer-like depression about three fegt deep in the middle and extending over about two acres. The subsidence or “ cave in ” was caused by the mining of coal by the defendant, or his predecessors, under the subsided land; whether immediately under plaintiff’s lot, or at some distance, is in dispute on the evidence; it is also in dispute as to the time the miniug was done which caused the immediate injury. The plaintiff’s deed was from one McAllister, whose title ran back through several grantors to one Michael Dugan, the last named grantee’s deed, being from the Lehigh Yalley Railroad Company, and is dated July 31, 1869; at that date the company was owner of both the surface and the coal underneath. In the deed is this provision :

“ And it is hereby made a condition of this grant, and expressly covenated and agreed, that the said Lehigh Yalley Railroad Company, their successors and assigns, do except and reserve and shall always possess the exclusive privilege of mining under the lot of land herein conveyed, for coal and other minerals ; and, for that purpose may extend such tunnels, drifts or excavations under the same, or any part thereof, as shall be necessary or convenient for the mining and removal of such coal or other minerals, subject to the condition that the surface earth covering such coal, or other minerals, shall not be in any manner cut, broken or displaced; and that every damage which may be done to the said lot, or the buildings erected thereon, by the exercise of the mining privileges, herein reserved, shall be made good by the said Lehigh Valley Coal Company.”

The defendant’s testator had, about the year 1874, become the lessee of the coal from the Lehigh Valley Railroad Company. It will be noticed, this was many years before the plaintiff’s conveyance of April 22, 1890; at the date of the injury, defendant was in possession of and operating the mines.

We do not think the stipulation in the railroad company’s deed, so far as the evidence in this case is concerned, modified the defendant’s liability as an operator or miner of the coal underneath the surface. The covenant in the deed neither expressly nor impliedly relieved the covenantor, or its lessees, from the duty of leaving sufficient support for the surface. It is little more than a reservation of the coal for itself and assigns and a stipulation for the performance of a common law duty on its part and that of its assigns.

There was evidence, that the mining which caused the injury had been done directly underneath the plaintiff’s lot many years before the date of his deed and that none was done after-wards ; and there was evidence on the part of the plaintiff that considerable mining had been done underneath after their occupation. In both aspects of it, this evidence had a direct bearing on the issue as made up by the pleading. The suit was trespass against the lessee of the railroad company.

The declaration is as follows:

“ On the 11th of January, A. D. 1892, the said defendants, under a grant of coal under said lot, said grant being made subsequent to the deed from said company to said Dugan, removed the coal under the surface earth of said Lot No. 9, and so cut, broke and displaced the earth that the surface fell in and the dwelling house of the plaintiff thereon became-greatly damaged, whereby the surface of said Lot No. 9, of the value of $1,500, was wholly destroyed; and the house thereon damaged in $3,000, wherefore, plaintiff claims from defendant $4,500.” The injury and only injury here alleged, is, that defendant removed the coal under the surface of lot No. 9, and to that averment only did the defendant plead. He averred and argued, that no mining had been done by him after the plaintiff’s purchase and occupation of lot No. 9; yet the latter was permitted to recover on evidence showing a removal of the coal antedating his deed, a fact not averred. If the cause of the injury was bad mining before January 11, 1892, or the failure before that date of defendant, while mining, to leave sufficient props and supports for the- surface, while the “ cave-in ” only occurred at that date, those who mined the coal would be clearly answerable. In this case it is alleged, this defendant mined the coal either before or after the plaintiff’s deed. If the mining which caused the subsidence was more than six years before suit brought, and the injury occurred within six years, even though the miner or operator was still in possession, he is not answerable in damages, for there is no right of action for damages until the damage occurs.

The first question raised by the assignments of error, is, what was the date of the cause of action ? A cause of action, is that which produces or affects the results complained of. Where there has been a horizontal division of the land, the owner of the subjacent estate, coal or other mineral, owes to the superincumbent owner, a right of support. This is an absolute right arising out of the ownership of the surface. Good or bad mining in no way affects the responsibility; what the surface owner has a right to demand is, sufficient support, even, if to that end, it be necessary to leave every pound of coal untouched under his land: Berwind v. Barnes, 13 W. N. C. 541; also the English case, Harris v. Ryding, 5 M. & W. 60, in which Baron Parke uses this language : “I do not mean to say that all the coal does not belong to the defendants, but they cannot get it without leaving sufficient support.” We have followed rigidly this rule, as thus tersely suggested, in all our decisions on the subject, and they have been many. Of course, defendant had a right to all the coal under this lot, but, he had no right to take any of it, if thereby, necessarily, the surface caved in. The measure of his enjoyment of his right must be determined by the measure of his absolute duty to the owner of the surface. So, there is nothing gained by adducing evidence of good of bad mining, or by a discussion of that subject.

The adjacent owner in this case, at some time failed in duty to the owner of the surface of this lot. The mere fact, that it caved in because the coal had been mined underneath, demonstrates this failure. When the coal was removed without leaving sufficient pillars, or without supplying sufficient artificial props, was the time when the subjacent owner failed in an absolute duty he owed to his neighbor above. And from that, dates the cause of action. Ünless, when the coal was mined, the miner left no pillars, or too few, or of too small dimensions for such a mine, or did not replace the coal with ample artificial durable props, there was no cause of action; for, as is said by Erle,. J., Bonomi v. Backhouse, 96 Eng. Com. Law Rep. 642, “ As a general principle it is difficult to conceive a cause of action from damage when no right has been violated and no wrong has been done.” That was also a mining case. It was held that the check upon mining was for the protection of the surface, and that, “ The surface owner, taking that advantage, may not unreasonably be held to take it with ordinary legal incidents, among others, a liability to be barred by six years from the wrongful act. In case of mining operations which are a trespass, the statute runs from the trespass, though the party may have been ignorant of the act done. The same rule may, with equal justice, apply to a surface owner notwithstanding he may have been ignorant of the violation of his right to support.” This opinion was concurred in by the other two justices, Campbell and Coleridge, but on appeal to the house of lords, the judgment was reversed; so, in that case, the final judgment in effect, declared, that the date of the “ cave-in ” was the date from which the statute began to run. There are other English cases to the same effect and others directly to the contrary. So conflicting are the decisions, that the law on the subject in England cannot be considered settled. Cases on each side, including Bonomi v. Backhouse, have here been cited by both appellant and appellee. We think the opinion of Erle, Justice, from which we have quoted, by far the most satisfactory in its reasons and more in accord with the conditions of coal mining in this country; and, as we are not bound by the final judgment in the law of England, we prefer to follow the opinion which meets our view of the law applicable to the facts before us. This court refused to follow Bonomi v. Backhouse, in the late case of Lewey v. Fricke Coke Company, 166 Pa. 586. But this last case is clearly distinguishable from an action for failure to afford the surface sufficient support. Lewey v. Coke Company was where the defendant from an adjoining mine had mined and removed the plaintiff’s coal underneath his land, yet did not disclose .the fact and plaintiff did not discover it until after the six years had run. We held, on the facts of that case, that the statute only began to run from the time of plaintiff’s discovery, and this on the grounds, that the mining of his coal was a wrong and the concealment of the wrong a fraud. He had no means of discovery ; had no right of access to the mine to make observations and defendant no right at all under his land; he had no reason to suspect or presume, that one who had no claim of right would wrongfully enter on his land and dig his coal. But here, the parties who mined this coal, had a light so to do ; a right reserved by the original owner ; the surface owner, too, had a right of sufficient support; these mutual rights gave the surface owner access to the mine to see that his right was being maintained by the performance of the duty owing to him by the coal operator. And the courts will enforce this right of access if the mine operator denies it; this has been decided in a number of cases. In this case, the right of action arose when the mine operator failed to furnish sufficient support; that may 'have been more than six years before suit brought, or it may not; it may have been partly due to mining before and partly to mining afterwards, in which latter case, the action would not be barred; if wholly due to the removal of coal six years before suit brought and failure then to leave sufficient support, the action would be barred. The date of the “ cave in ” and partial destruction of the house, is not the date of the cause of action, that was only the consequence of a previous cause, whether one month or twenty years before, It is argued, that in some cases, the surface owner could not know by the most careful observation whether the mine owner had neglected his duty within six years. We answer, that is only one of the incidents attending the purchase of land over coal mines; it is not improbable, that this risk enters largely into the commercial value of all like surface land in that region. But, however this may be, we hold that the miner is not forever answerable for even his own default; further, in no case is he answerable for the default of his predecessor before his possession. Neither equity nor law demands, that any greater burden should be placed upon him than that indicated; any heavier one would encourage the purchase of surface over coal mines for speculation in future lawsuits. We cannot concur in the argument of appellant’s counsel, that plaintiffs could have had no cause of action antedating their deed. By their conveyance, there passed to them all the rights of their grantor. If the cause of the injury was within six years, although at the date of the deed the damage was not susceptible of computation, yet afterwards became so by the subsidence of the surface, their right to sue was then fixed, a right which, from the nature of the case, could not have had more than a doubtful existence before the actual damage occurred. We do not think Turnpike Road v. Brosi, 22 Pa. 32, cited to sustain the argument, that the right to sue does not fall to the owner who is in possession when the result demonstrates, the cause of action arose before the date of his deed, is in point. Justice Lewis, in that case, says : “ It is certainly true that the purchaser of an estate cannot claim damages for an injury done to it before his purchase. Such claim is a chose in action, which remains in the hands of the vendor. The vendee is presumed to pay less for his estate on account of the injury, and has, therefore, no claim to recover damages for it.” But he is speaking there of the damages arising from the exercise of eminent domain by turnpike and railroad companies. In all such cases the injury is palpable. When the corporation enters upon the land and makes its survey, it then appropriates; the extent of its excavations and embankments, as well as the quantity of land to be occupied, are as well known then, as months afterwards, when the work is done. There is no reason why the grantee of the land, in the interval between the appropriation and the completion of the work, should be compensated in damages, when he has probably gained a reduction in price, because of the damage equal to the amount of damage.

. But none of these reasons appear in this class of cases. When the right to sufficient support has been violated, the cause of action, it is true, arises, but the owner in possession when the consequences follow, is the one who suffers. There may, in the interval, have been several owners, none of whom sustained damage except the last; he alone has the right to sue, because to him only has passed the right to enforce by suit the collection of a damage occurring during his possession. Until they actually occur, no one can tell when they will occur, or that they ever will. Each grantee has the right to presume, that the subjacent owner has performed his legal duty, and the price, while probably somewhat depreciated by the possible risk, is not fixed on a presumption, that his land will subside because of any special failure in duty on the part of him who has taken out the coal.

There is some evidence tending to show that the “ cave in ” was because of work within six years by defendant, in the Mammoth seam, the first stratum of coal below the surface; also evidence tending to show very recent mining in the Wharton seam, the next one underneath the Mammoth, and that from one or the other cause, or from both combined, the subsidence was caused. On the whole case we deduce these propositions:

1. If the failure to furnish sufficient support to the surface, was from mining, either by defendant or his predecessors, more than six years before suit, the action is barred by the statute of limitations.

2. The right to sue passes to the surface owner who is in possession when the subsidence occurs, without regard to the date of his conveyance ; this right is barred by the statute of limitations if the cause of the subsidence arose more than six years before suit brought.

3. Even if the main body of the coal under plaintiff's land has been mined out more than six years before suit brought, yet, if defendant has done additional mining by removal of coal left in previous work, or by robbing of pillars within six years before suit, and without such additional mining the surface would not have subsided during plaintiff’s occupancy, yet if such additional work or mining hastened the result, the defendant is answerable in damages therefor.

4. If defendant, by mining within six years another underlying seam (the Wharton), whereby the pillars and support left in the seain above (the Mammoth), which otherwise would have been sufficient support to the surface, have been rendered insufficient, and the “ cave in ” occurred, defendant is answerable to plaintiff in damages.

5. If plaintiffs be entitled to recover, tbeir measure of damages is the actual loss they have sustained to their land, including the building thereon, by reason of the “ cave in.” The difference in the market value before and after the injury in this class of cases is not the true rule ; in this case, under the evidence, perhaps it worked no injustice, but in many cases it Avould do so.

In a case of this character, it is of the utmost importance that the averments should be more specific as to the time the coal was mined under the lot and as to who mined it. While, probably, we would not reverse for this paucitydn the statement nevertheless, it would greatly aid in a correct review of the case if all the grounds of action were clearly' and more specifically stated.

Bnt the learned judge of the court below went much further than instruction on the matter so meagerly averred and which was the only issue in the case. Evidence was offered and received, tending to shoAv, that defendants were mining coal at a distance from the lot in question in other parts of the Hazleton mine; from this evidence, plaintiffs argued, that even if their property had not been injured from lack of surface support in the mine underneath it, the subsidence Avas caused at the point under the lot, by removing lateral support at other mines some distance from the lot in question. There was some evidence given to sustain this view, and the court charged as follows:

“ It would appear generally from the testimony that the injury complained of here did not come from the immediate mining and its consequences. Did it come from any other source ? Mr. McNair has testified (and he is a mining engineer and has been, in charge of these mines and knows all about the inside operation of them) that there was no immediate mining under this property to the best of his judgment, since 1858. If you should find that this injury did not come from the immediate mining under the property, did it come from the general mining carried on by these defendants, in the Hazleton mines, which were generally a part and parcel of these mines ? If it did, and you should so find, then these defendants under the law would be liable in damages for the amount of the injury which you find the plaintiffs sustained.”

The defendant assigns this instruction for error. When we consider, that there is not an intimation in the statement, that any such cause for the injury ever had an existence, it is somewhat difficult to conceive how it could have been adopted as one of the grounds of recovery. Damage for failure to furnish vertical support to the surface in mining underneath is a well known cause of injury to the surface owner; but, that an adjacent owner has, by removing lateral support, caused a vertical subsidence of the surface, is an altogether different averment of the ground of complaint. He may be the same, or some other than the operator of the mine underneath. His duty is not in all respects the same; the rule for the computation of damages is not the same. The authorities are in substantial accord on this question, though not giving the same reasons: Richards v. Jenkins, 16 Law Times Rep. 437; 17 W. R. 30; Birmingham v. Allen, L. R. 6 Ch. Div. 284; Dalton v. Angus, L. R. 6 Appeal Cases, 791; McGettigan v. Potts, 149 Pa. 158. In the last cited case it is decided that:

“ The rule that the owner is entitled to lateral support for his ground extends only to support for his ground in its natural state, and does not include such support for the protection of buildings, or other structures, placed upon it. Where, by reason of an excavation, without negligence made by defendant on his own land, the land of the plaintiff sinks or falls away, the measure of damages is not the diminution in value of the lot of the plaintiff, by reason of the defendant, but the amount of injury actually done to the plaintiff’s land. The measure of the damages where land is taken by right of eminent domain, which is the difference between the value of the whole of the plaintiff’s land before the taking and its value immediately afterwards, has no application in such ease.”

We do not decide, that plaintiffs might not have, originally, embraced in the same statement this cause of action, for we are of opinion they might have done so. But they did not; they could not recover on it when they alleged but the one cause, and that a different one. It was plainly error to admit, under this statement, the evidence tending to show a destruction of lateral support. The defendant had not been called into court to answer such complaint, and ought not to have had a possible verdict on that ground against him. It is now too late, under the authorities, for plaintiff to introduce this new cause of action under an amendment, for the statute of limitations bars it. See a full discussion of this subject by Sharswood, Justice, in Wilhelm’s Appeal, 79 Pa. 134.

Appellant’s third assignment of error is sustained; the others are not; we have noticed them to the extent of pointing out the course the trial should take, upon a new venire, so that, if possible, we may be saved from a second review.

The judgment is reversed and a venire facias de nove awarded.