Berkey v. Berwind-White Coal Mining Co.

Opinion by

Mr. Justice Mestrezat,

In 1892 the plaintiff and his wife conveyed to Robert H. Sayre all the coal and minerals underlying a tract of land in Paint township, Somerset county, containing about 120 acres, together with certain surface and mining rights and privileges Tor the removal of the coal. There was nothing in the conveyance, however, to authorize the grantee to injure or disturb the surface, or any waiver by the grantors of damages arising from injury to the surface by reason of the mining and removal of the coal. The defendant company is, and has been for some time, mining the coal under a lease from Sayre’s grantee. The appellant, the defendant company, has failed to print the statement but we learn from the charge of the court and the history of the case that this action was brought to recover damages for injuries resulting to the surface in mining the coal. The plaintiff alleges that the defendant has removed the coal without properly supporting the surface, which has resulted in depressions and subsidences in the surface, and the loss of certain trees and springs of water on the land. ' The learned trial judge submitted the case to the jury, and a verdict having been rendered for the plaintiff, judgment was entered thereon.

After a careful review of the record, we fail to find any merit in any one of the numerous assignments of error. The first, second and third assignments allege error in sustaining objections to certain questions by the defendant propounded to the plaintiff’s witnesses on cross-examination. The question covered by the first assignment had no tendency to disclose the bias or interest of the witness, as contended by defendant, and the answer would have simply introduced a matter wholly collateral to the issue being tried by the jury. The testimony sought to be elicited by the questions covered by the second and third assignments should have been introduced in chief by the defendant if competent at all at any stage of the proceeding. These assignments need no further discussion. They are not sustained.

The fourth, sixth, seventh and eighth assignments raise the question of the right of the defendant under its lessor’s purchase to remove the coal regardless of injuries thereby done the surface. It is contended by the defendant company, as we understand, that it is liable for injuries done the surface by the removal of the coal only in the event that the mining operations are conducted carelessly and negligently, and that no responsibility for injury done the surface by reason of the failure to support it arises if the mining is done in a prudent, careful, skillful and workmanlike manner. This position is wholly untenable and directly in the teeth of all our cases on the subject. We have repeatedly held that where there is no waiver of surface support, as here, the owner of the surface is entitled to absolute support of his land, not as an easement or right depending on a supposed grant, but as a proprietary right at common law, and that this right which the servient estate owes to the dominant estate does not depend on whether the mining operations are conducted skillfully or negligently and carelessly. The learned judge was therefore entirely right in holding that it was the duty of the defendant company to furnish absolute support to the plaintiff’s surface, and if by reason of failing to do so injury resulted to the surface, the company was responsible. The plaintiff’s right to recover did not depend upon whether the mining operations were conducted prudently and skillfully or carelessly and negligently, but whether by reason of the failure to properly support it, the surface was injured. In view of the numerous decisions of this court sustaining this position, further discussion of the question is unnecessary. These assignments are without merit and are dismissed.

The court went quite far enough in admitting the testimony under the offer set out in the fifth assignment. The part excluded was clearly incompetent and should not have been admitted.

An examination of the evidence convinces us that the tenth and eleventh assignments should not be sustained. The evidence was for the jury and was properly submitted. The twelfth assignment relates to the measure of damages. The learned judge correctly disposed of the matter covered by this assignment. He distinctly told the jury that if the injury was reparable or curable with reasonable effort and expense less than the value of the property, the measure of damages was what it would cost to make the repairs. He further instructed them that there had been no proof offered by the plaintiff of what it would cost to make- the repairs and “if it. is reparable, there being no proof of the cost of repair, you cannot allow for it.” He also told the jury in answer to a point, and very properly so, that if the injury was permanent the measure of damages was the difference in the market value of the farm before and after the injury inflicted by the mining operations. This assignment is dismissed.

The same disposition must be made of the thirteenth and fourteenth assignments, which complain substantially that the court erred in not directing a verdict for the defendant.

From its argument, the defendant company seems to have misapprehended the law applicable to the facts of this case. The simple question for adjudication here was the right of the plaintiff to the absolute support of his surface and the liability of the defendant for damages resulting' from failure to furnish such support. As we have said, the law of this state is so well settled that there should not now be any dispute in regard to it. The rights of the owner of the surface against the owner of the coal thereunder must not be confused with the right of the owner of an adjacent tract of land to mine and remove his coal without liability for injuries done subterranean streams or waters flowing to his neighbor’s land. In the latter case the owner of the adjacent land is not liable to his neighbor unless the springs or waters were cut off or diverted by his malice and negligence. The owner of the coal cannot be deprived of it or of the right to mine and remove it by the fact that his neighbor may be deprived of the subterranean waters or streams which will thereby be diverted and prevented from flowing through his land. Mining operations by an owner upon his own land may interfere with and destroy springs upon his neighbor’s land by reason of the interference with the filtration or percolation of the water through the owner’s land, but such injury is damnum absque injuria, and unless it is occasioned by negligence or by malice the neighbor has no recourse for such injury. This principle, however, is wholly inapplicable to the facts of this case, as we have suggested, and cannot defeat a recovery in this action.

The assignments of error are overruled and the judgment is affirmed.