Kutsch v. Miller
| Decision Date | 09 January 1970 |
| Parties | Richard KUTSCH and Albert Kutsch, Appellants, v. William E. MILLER, Jr., Ira Wood, George Resick, Clinton Coal Company, a corporation, and Bessemer and Lake Erie Railroad, a corporation. Appeal of BESSEMER AND LAKE ERIE RAILROAD. |
| Court | Pennsylvania Supreme Court |
John Wilson, Butler, G. Donald Gerlach, Reed, Smith, Shaw & McClay, Roger C. Wiegand, Pittsburgh, for Bessemer and Lake Erie Railroad.
Lee C. McCandless, Frank P. Krizner, Butler, for Richard and Albert Kutsch.
Before BELL, C.J., and JONES, COHEN, EAGEN, O'BRIEN, ROBERTS and POMEROY, JJ.
The first of these two appeals 1 presents the question of whether the owner of a deep bituminous mine, Bessemer and Lake Erie Railroad (Bessemer), may be held liable for the alleged negligent acts of its lessees, Sterling Coal Company (Sterling) and Clinton Coal Company (Clinton), which supposedly caused the flooding of an adjacent deep mine owned by Richard and Albert Kutsch (Kutsch). In an equity action instituted in the Court of Common Pleas of Butler County, the court, after hearings, imposed liability on Bessemer on the theory that 'accumulations of water on (Kutsch') property were produced, diverted and maintained artificially by and for the benefit of (Bessemer)' and that 'Bessemer and its tenants had no right to collect water on the property of (Kutsch) and thereafter create a hazard to (Kutsch) and any employees (Kutsch) might have extracting coal from their own mine.' We do not agree.
On March 29, 1961, Bessemer purchased a bituminous coal mine in Clinton Township, Butler County, known as the 'Riddle Mine.' Adjacent to the 'Riddle Mine' was another mine which had been owned and operated by Kutsch since 1945. Both mines worked the same vein of coal, but, because of the topographical pattern of the vein, the vein worked in 'Riddle Mine' was at a higher level than that worked in the Kutsch mine.
Some time prior to March, 1956, a predecessor in title of Bessemer, conducting mining operations in the 'Riddle Mine,' crossed the boundary line between the 'Riddle Mine' and the Kutsch property, intruded therein for approximately 30 feet for a distance of 700 feet and removed virgin coal from the Kutsch property. This encroachment into the Kutsch property took place at the southeast corner of the 'Riddle Mine.' 2
On April 1, 1961, Bessemer leased to Sterling the exclusive right to mine the Upper Freeport seam of the 'Riddle Mine.' This lease provided that: (1) Sterling was to do all the work and pay Bessemer a royalty of 20cents per ton of coal mined; (2) Sterling was to keep accurate books to which Bessemer was to have reasonable access; (3) Sterling was to carry out its operations in a workmanlike and efficient manner, obeying the mining laws; (4) Bessemer retained the right to make reasonable inspections of Sterling's operations; (5) Sterling was to submit its mining plans to Bessemer six months prior to mining; and (6) in the event of unforeseen difficulties, the parties agreed to meet in order to draw up a revised mining plan. The last paragraph of the lease recited that Sterling was to be an independent contractor, with Bessemer having no supervision or control over the specific activities of Sterling in its mining operations. 3
Sterling's mining operations progressed to the north, away from the Kutsch property and followed the naturally ascending pattern of the coal seam. Because the natural drainage pattern of the 'Riddle Mine' was from the northwest to the southeast, any water released by Sterling's operations tended to flow by gravity toward the point at which there had been a wrongful intrusion into the Kutsch property by Bessemer's predecessor in title. Accordingly as part of its operations, Sterling pumped the water from this low point in the 'Riddle Mine' to the surface through a bore hole.
The Upper Freeport seam was also marked by small (five to seven feet) local dips and rises. In order to mine these areas, Sterling also pumped water out of the dips and over the rises, from where the water then flowed naturally down to the southeast portion of the 'Riddle Mine.'
When Sterling had removed all merchantable coal, in 1963, it abandoned this area of the mine and, of course, discontinued the aforementioned pumping operations. Since the drainage water was no longer being pumped out through the bore hole, it accumulated and flooded the lower, southeast portion of the mine--including that portion which was situated on the Kutsch property. Although Bessemer knew in 1963 that pumping from the bore hole had been discontinued, it was not until 1964 that it learned that all pumping had ceased and that water had been filling the southeast portion of the mine.
The flooding of mines, abandoned in whole or in part, although potentially hazardous, is neither novel nor rare. The hazard inherent in a flooded mine is that the flood waters may enter adjoining or adjacent mines, causing damage to the coal therein and possible injury or death to persons working in such mines. The only safeguard--save pumping of such waters to the surface--lies in the barriers of coal left in place between adjoining or adjacent mines. Under several statutes, 4 the legislature, recognizing the potentiality of danger from waters accumulated in mining operations, has established a formula for the determination of the coal necessary to be left in place to provide a secure barrier between adjacent mines. The record indicates that, by the application of this formula, the total barrier between the 'Riddle Mine' and the Kutsch mine should have been 46 feet, I.e. 23 feet on each side of the boundary line between the respective mines. That such barrier was Not maintained clearly appears of record.
In connection with the statutory inadequacy of the barrier pillar, it appears uncontradicted that the pillar coal was 'robbed' on Both sides of the boundary line. Prior to the acquisition of any interest by Bessemer in the 'Riddle Mine,' a predecessor in title 'robbed' part of the barrier pillar. This predecessor of Bessemer not only did not leave the 23 feet of barrier on its side of the boundary line but intruded into the Kutsch property at least 30 feet. At that time the Kutsch mining operations were almost 60 feet from the property line between the two mines, so that Kutsch at that time was maintaining a proper statutory barrier of coal. For the encroachment of Bessemer's predecessor into Kutsch property and the 'robbing' of the barrier at that point, it is not claimed, nor could it be, that Bessemer was liable.
However, some time between September, 1960, and February, 1963, either with knowledge or with reason to know, in the exercise of careful mining, of the encroachment of Bessemer's predecessor into the Kutsch property, Kutsch extended mining operations to within 7 feet of the 'Riddle Mine' encroachment. 5 Thus, the barrier, the soundness of which had been threatened by the encroachment of Bessemer's predecessor, was further threatened by the Kutsch mining.
On February 25, 1963, the State Mining Inspector directed Kutsch to cease operations until the water could be removed from the southeast portion of the 'Riddle Mine.' The Inspector had determined that the seven-foot barrier between the two mines was inadequate and unsafe, in view of the flooding on the Riddle side of the barrier. Consequently, Kutsch moved their mining operations to a higher elevation where the men would not be endangered by the water should it break through. By letter of April 24, 1964, the State Inspector again ordered Kutsch to cease all mining operations at the lower level until the water in the 'Riddle Mine' could be removed.
The complaint in this action, filed May 5, 1964, sought for Kutsch money damages and equitable relief, based upon the flooding which occurred after Bessemer took title. The Court of Common Pleas of Butler County entered judgment in favor of Kutsch in the amount of $3,300.00 with interest from April 1, 1964, and against Bessemer. The court absolved Clinton of any liability because it found that Clinton had not increased the water accumulation. Sterling, without explanation and by implication, was relieved of any liability.
The first, and controlling, question raised on this appeal by Bessemer is whether it could properly be held liable for allegedly tortious acts which were indisputably committed by Bessemer's lessees, rather than Bessemer itself....
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