Gallagher v. Kemmerer , 144 Pa. 509 ( 1891 )

Opinion,

Me. Justice Claek :

This action of trespass on the case was brought by Bernard Gallagher, to recover damages for injuries to his land from a deposit of mine-water, culm, and dirt, accumulated thereon from the defendants’ mining operations on Sandy Run creek, in Luzerne county. The creek has its source in the mountains, about four or five miles above Gallagher’s land through which it passes. The defendants’ operations were commenced in the year 1877. The plaintiff alleges that in the process of washing their coal, the refuse, culm, and dirt were conducted in chutes, which emptied the dirt into the creek, and by the waters of the creek were carried to and thrown upon his meadow land, covering twenty acres or more, and rendering the land barren and wholly unproductive. It appears, however, that the Highland Coal Co., operated by Markle & Co., had been mining coal several miles above on the same stream from 1864, and that that company has ever since been so engaged continuously to the bringing of this suit. The plaintiff alleges that the culm and dirt from both these mines could, at a moderate and reasonable expense, have been banked, and if this had been done no appreciable injury would have resulted; and, further, that the Highland Coal Co., to some extent at least, pursued this plan, but the defendant company dumped the refuse of their mines directly into the stream. In August, 1884, Bernard Gallagher, in consideration of the sum of four hundred dollars, by formal writing under seal released the Highland Coal Co. from all claims and demands for damages, and from compensation for injuries then or thereafter done to his property, either from' the pollution of the stream, or from the deposit of refuse matter upon his lands by that company. It may be fairly inferred from this that the Highland Coal Co. did, in some degree, contribute to the injuries of which the plaintiff complains.

At the trial, the defendant presented a point for instruction to the jury, as follows:

“That, as it appears from the evidence that the plaintiff settled with Markle & Co. for damages sustained by him for the fouling of Sandy Run and the deposit of culm on his land by them, and it being impossible, under the evidence, to separate and ascertain the proportion of damage caused by them and by the defendants, it having been occasioned by simultaneous and contemporaneous acts, the settlement must be regarded as an accord and satisfaction for the whole damage, and the plaintiff cannot recover in this action.”

This point was negatived, and that is the first error assigned.

It is argued, on the part of the appellants, that the injury to which the plaintiff was subjected was of such a character that it could not, as between the parties who caused it, be divided, so as to determine in what proportion it was caused by each; and that, even if the defendants’ mines had not been operated, the mining operations of the Highland Coal Co. would have resulted in the same injury. It is true that the injury complained of may have been caused in part by the operations of the Highland Coal Co., conducted contemporaneously with the operations of the defendants’ mines, and that it would be difficult, if not quite impossible, to separate and ascertain, definitely or certainly, the proportion of the whole damage done by each of these operations, respectively. But these several operations were entirely independent of each other. They ■were several miles apart, and the ownership, management, and control were wholly distinct and separate. There was no concert of action, or common purpose or design, which would support the theory of joint injury. The case, in this branch, is ruled by Little Schuylkill Co. v. Richards, 57 Pa. 142. In that case, the mill-dam was filled by deposits of coal dirt from different mines. The court below charged the jury that if, at the time the defendants were throwing dirt into the river, the same thing was being done by other collieries, and the defendants knew it, they were liable for the combined result. This instruction was held to be erroneous. The ground of action, it was there said, is not the deposit of the dirt in the dam, but the negligent act above. The defendants’ liability, therefore, began with the act on their own land, and they were responsible for the consequences; and, as the negligent act was separate and independent of the acts of the other miners, it was several when committed, and did .not become joint, because the general consequences were united. “ Without concert of action,” said this court in the case cited, “ no joint suit could be brought against the owners of all the collieries, and clearly this must be the test; for, if the defendants can be held liable for the. acts of all the others, so each and every other owner can be made liable for all the rest, and the action must be joint and several. But the moment we should find them jointly sued, then the want of concert and the several liability of each would be apparent. These principles are fully sustained by the following cases: Russell v. Tomlinson, 2 Conn. 206; Adams v. Hall, 2 Vt. 9; Van Steenburgh v. Tobias, 17 Wend. 562; Buddington v. Shearer, 20 Pick. 477 ; Auchmuty v. Haam, 1 Denio 495 ; Partenheimer v. Van Order, 20 Barb. 479.” Unless the negligence of two persons is joint and concurrent, each is liable for his own negligence only: Boyd v. Insurance Patrol, 113 Pa. 269. To the same effect are the cases of Seely v. Alden, 61 Pa. 306; Leidig v. Bucher, 74 Pa. 67; and Little Schuylkill Co. v. French, 81* Pa. 366. It is a matter of no consequence whatever that the stream was not a public highway : that fact could not in any way affect the principle referred to; and, if the Highland Coal Co. was not a joint tortfeasor, it is immaterial in what form the release was effected, whether by deed or otherwise.

In Pittsb. etc. Ry. Co. v. Vance, 115 Pa. 332, we said: “In order that a witness may be competent to testify intelligently as to the market value of land, he should have some special opportunity for observation. He should, in a general way and to a reasonable extent, have in his mind the data from which the proper estimate of value ought to be made. If interrogated, he should be able to disclose sufficient actual knowledge of the subject to indicate that he is in a condition to know what he proposes to state, and to enable the jury to judge of the probable, approximate accuracy of his conclusions.” To this effect, also, is Curtin v. Railroad Co., 135 Pa. 20. Michael Campbell, a witness produced by the plaintiff, said that he was twenty-six years of age ; that he had lived in the neighborhood twelve or thirteen years, and was driving a milk wagon for his father; he was therefore but thirteen years of age when the defendants commenced operations. The plaintiff proposed to prove by this witness the market value of the land free from this deposit of coal dirt, and the market value as affected by it. This necessarily implied a knowledge, on the part of the witness, of the nature and condition of the land before the deposit was made ; but he testified to nothing which justified the admission of his testimony on this point. As to his knowledge of its previous condition, he testified, on cross-examination, as follows:

“ Q. How old are you ? A. Twenty-six. Q. You say that the stream has been bad longer than you can remember? A. Well, no; not so long that I can’t remember it. Good while ago, when I was a small boy. I never took any notice of it. Of course, I know cattle used to drink it at that time. Q. Did you ever see Gallagher’s land before it was covered with coal dirt? A. I have seen it, yes sir; but I have not been through it. I saw it. Q. That is, when you were a boy ? A. Yes, sir; I worked for Mr. Heinsen. Q. That creek bottom along there was a swampy piece of ground, wet piece of ground? A. I could not speak for Mr. Gallagher’s, but Mr. Heinsen’s I passed with horses on the opposite side of the creek. Q. The land above the bottom is all dry land, and there is where the land has been cleared and cultivated; there was no part óf Gallagher’s land cleared before the coal dirt was put on? A. Not that I know of. Q. Was it a laurel swamp, as described by Mr. Benner, the surveyor ? A. That I could not say. Q. Your father’s place is somewhere about two miles below Gallagher’s ? A. Two miles or a mile and a half, down along the Wetherly road. Q. You live with your father ? A. Yes, sir.”

The witness might, perhaps, have been competent to testify as to the value of the land after the injury, but it is plain by his own statement that he knew nothing of its nature and character before the injury. He did not pretend to know whether it was dry land, or merely a laurel swamp. How was it possible, therefore, for him to testify as to the value of the land free from the injury complained of ?

The judgment is reversed, and a venire facias de novo awarded.