McGregor v. Equitable Gas Co. , 139 Pa. 230 ( 1891 )

OPINION,

MR. Justice Williams :

An entry upon land made by virtue of the right of eminent domain confers a right to the surface supported by the sub-jacent strata. The grantee of the commonwealth may insist on the full measure of support which the law gives him, but it does not follow that he must do so because he can. He must pay for what he takes, but he ought not to be compelled to take and pay for what he does not need, nor to inflict an injury on the owner of the land merely because he has the power to do so. He may, on the contrary, and a proper regard for the rights of others requires that he should, consider and determine, in view of the nature and uses of the structure he is about to put on the lands of the owner, what support he really needs, and release the owner from so much of the burden which his entry imposes as is not necessary for the security of his undertaking.. If he does not do this, he ought to pay, not the value of the coal in place, for the title to the coal does not pass to him, but the depreciation in price of the property by reason of the servitude imposed upon it. If he does release the right of support from the coal or other mineral underlying the surface, then the owner may mine- and remove it as freely and fully as though no entry had been made upon the surface, and for that reason it should not be taken into consideration in adjusting the damages due to the landowner. This was decided in the recent case of Penn Coal Co. v. Gas Co., 131 Pa. 522.

But the appellant urges that the failure to file a release, at the time of filing the bond to secure the damages, estops the company from filing it at any later stage of the proceedings, and that it was therefore error in the court below to permit it to be filed on the trial. An estoppel ordinarily arises where one person has done or said that which has influenced another in such way as to make it inequitable to change or recall what was so said or done. The evidence does not show that the appellant was misled to his barm by the delay in filing the release. Its only effect, so far as we can discover, was to narrow the contest before the jury to the damages sustained upon the surface. The appellant, assuming that the company desired the support of the surface by the coal, which was from twenty to thirty feet below it, claimed that the coal should be taken into the account. The company replied to this part of the demand with the release of the coal from the servitude. This left the appellant as free to mine his coal as though the surface had not been entered upon, and extinguished all claim for damages growing out of the assumed purpose to require subjacent support. There was no error, therefore, in permitting the release to be filed at the trial.

It is now contended, however, that, if the release was properly filed, the danger of the subsidence of the surface after the removal of the coal, the breakage of the pipe line thereby, and the escape of an explosive gas into the mine, is so great as greatly to diminish the value of the coal, and that this is a proper subject of compensation in the assessment of damages. But this overlooks two provisions of the act of May 29, 1885; one, in the tenth section, which makes gas companies liable for all damages arising from negligence in the construction or maintenance of their lines; and another in the twelfth section, which gives the courts power to decide all disputes “as to the manner of laying the pipes, and the character thereof with respect to safety,” upon the petition of any party affected, and provides for the enforcement of the order or decree by injunction. When the owner of the coal desires to remove any considerable portion of that which is under the line, he may apply to the court for such order as may be necessary to provide for the support of the line. After a full hearing, the court may “ define, by its decree, what precautions, if any, shall be taken in the laying of pipes ” for the safety of those then for the first time in a position to be affected. Natural gas can be transported only when the pressure at the wells is so great as to propel it through the lines by which it is delivered to the consumer. It must furnish its own motive power. It is a well-known fact that the pressure of most, if not all producing wells is steadily diminishing. Some pipe lines have already been taken up, because of the failure of gas in the wells that sup plied them. Other lines must soon follow for the same reason, and it is not improbable that the Equitable Gas Company may have no gas to transport by the time the owner will be ready to remove the coal that is now under the line. If the supply of gas does not fail by that time, and precautions that have not been taken become necessary for the safety of those engaged in mining, the power of the court majr be invoked, all the circumstances submitted to its consideration, and such order made and enforced as security for persons and property may require.

The second and third assignments relate to the measure of damages. The learned judge instructed the jury that the plaintiffs were entitled to recover, (a) the actual damages done in the construction of the line to the surface, including injury to fences and crops ; (5) the depreciation in value of the farm, as a whole, by the entry and appropriation of the gas company, excluding from consideration all servitude of the coal to the surface, and all damages that might result from negligence on the part of the company. This was a correct and a clear statement of the measure of damages, of which neither party can complain. The character of the gas line put upon the surface, the use to which the line was devoted, and the probable length of time the line might remain in place, were elements entering into the calculation of the depreciation of the farm in value, and were to be considered in that connection only. None of the assignments of error are sustained, and the judgment is now

Affirmed.

Mr. Justice Sterrett noted his dissent.