Noonan v. Pardee

• Decision Date: 11 October 1901
• Docket Number: 74
• Citation: 50 A. 255,200 Pa. 474
• Parties: Noonan v. Pardee, Appellant
• Court: Pennsylvania Supreme Court

50 A. 255

Noonan v. Pardee, Appellant

200 Pa. 474

No. 74

Supreme Court of Pennsylvania

October 11, 1901

Argued April 12, 1900

Appeal, No. 74, Jan. T., 1900, by defendant, from judgment of C.P. Luzerne Co., Oct. T., 1894, No. 1299, on verdict for plaintiff in case of Michael Noonan v. Calvin Pardee. Reversed.

Trepass for injuries caused by a cave in of surface.

HALSEY J., charged in part as follows:

Michael Noonan and Margaret Noonan, his wife, have brought suit here against C. Pardee, administrator of Ario Pardee, deceased and Frank Pardee, to recover damages because of injury alleged to have been done by the defendants to the plaintiffs' property in the removal of the coal underlying the same or in adjacent or proximate mining.

Of course there has been no testimony adduced here showing that any of this mining was done by Frank Pardee, and at the close of the plaintiff's testimony on motion of counsel for the defendants, a nonsuit was entered as to Frank Pardee. Therefore he is eliminated from your consideration in reaching a disposition of this case. The salient facts gentlemen of the jury, out of which this contention grows, are as follows: On January 11, 1892, Michael Noonan and his wife jointly owned the property in Hazleton, being lot No. 9 in square 61. On the evening of that day a subsidence or a settling of the surface occurred by reason of which this property was alleged to have been injured. It was occupied at the time by Noonan and his wife, Mr. Helferty and his family on the one side and by a tenant on the other, whose name I think was Dugan. It was a double house, three rooms I think on the lower floor and three on the upper floor, with the ordinary halls on either side. The injury to the property by this subsidence, settling or cave has been described to you in detail by the different witnesses in the case. Mr. Helferty has described it more distinctly than any others, and he testifies to you that there was a general racking of the house and a settling of it from one to two feet. The walls and the sides of the house were thrown out of place. The plaster was cracked, the superficial character of the lot, the water courses and the drainage, were changed, resulting, as the plaintiff alleges, in injury to the property. It has been shown that the mining operations in the mines generally under and adjacent to that property from 1858 to 1895 were carried on by Ario Pardee & Company and other parties; possibly by Ario Pardee & Company from 1874 down to 1895. The law as to the duty of the defendants, or operators of these mines, is, that in order that the plaintiff may recover here you must find that the subsidence, crush, cave or accident came from mining operations carried on by the defendants -- by Ario Pardee & Company. There can be no recovery against them unless the mining and the removal of the coal was done by them or through their agent or agents. [If the defendants carried on mining operations in any portion of these mines which resulted in the accident or cave which did the injury to the plaintiffs' property, then you would, under the law, be justified in finding a verdict in plaintiffs' favor for the amount which you find to be the money value of such injury.] The plaintiff was the owner of the surface, and not of the coal. Owners of the surface are, under the law, entitled to the possession of the surface free from any injury that may be done thereto by the owners of the coal in the mining and removing of the same. In other words, if the coal is removed by the owners, they must remove it so as to do no injury to the owners of the surface. It is the duty of the owners of the coal to support the surface when they so mine the coal. The immediate mining under this property was in the Mammoth vein in the first lift, and I think also, gentlemen of the jury, there was testimony in the case that there had been mining in the Wharton vein. The Mammoth vein was about 100 feet below the surface of the lot of the Noonans, and the Wharton was some fifty feet below the Mammoth, so that the Wharton was 150 feet below the surface of the Noonan lot. From the mine inspector's map it appears that no immediate mining was done in this vein since 1858 -- that is, in the Mammoth. 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 operations 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 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.] You have heard the theories as to the cause of the injury to this property. There is no question that there was a subsidence, a cave, a settling which caused injury to this property. Was this injury done by these defendants? If it was then we say to you as a question of law it is your duty to proceed to the other question and ascertain the amount in money of the injury the plaintiffs may have sustained. [The measure of damage is the market value; and market value has been defined as a price established by public sales in the way of ordinary business. The market value is such a sum of money as the property is worth in the market to persons generally who would pay the just and full value. What is meant by the market value is not the price the land would bring at a forced sale, but what it or land similarly situated would bring at a sale after due notice and under fair conditions. In getting at the damage sustained by the plaintiffs, you will take into consideration that which has been done in the way of making reparation -- the repairing of the property injured. The evidence has been adduced here that the injury, the damage done to this property, has been repaired at the expense of the Lehigh Valley Railroad Company. How far did that go toward a reparation of the injury? You heard the testimony of witnesses who have come into court here and told you as to the character of the injuries, as to what was done in the reparation of them, and the effect of the repairs. Mr. Rousche, a contractor of many years' residence in the city of Hazleton, has told you that the injury has been substantially repaired. Mr. Boyle, a contractor who has lived in the locality for many years, testifies to the same effect. There is no testimony here on the part of the plaintiff that he objected to the repairs or that he complained that they were insufficient. Now, were they sufficient and did they repair the injury done to this property by reason of this subsidence? There is the further testimony in the case as to the injury done to the market value, as I have defined it to you. Witnesses have been called here to testify as to the market value before the injury, and the market value after the injury, after the excitement incident to the accident has been allayed. This, under the rule, is a fair measure of the market value, namely, the difference between the fair market value of the property before the accident and what it was worth after the accident as affected by the accident.] After the excitement incident to the accident had subsided, after the community had ceased to have any fear arising from the subsidence, from the cave, from the settling of the mines. That was the time at which the market value should determine and fix the value of the property, not when the community was excited and disturbed and frightened and away from their homes, but after everything had quieted down, what was then the market value of this property?

Verdict and judgment for plaintiff for $2,790. Defendant appealed.

Errors assigned among others were (2) refusal to give binding instructions for defendant; (3-5) above instructions, quoting them.

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

John G. Johnson and Henry W. Palmer, for appellant. -- It was the duty of the trial judge to sustain any point denying the right of recovery by the plaintiffs for any removal of the coal at a time different from that averred in the statement, prior to their acquisition of the surface. We also submit he had no right to charge that the jury might find a verdict, in case they found the subsidence had resulted from mining not under the surface, but at a distance: Wolf v. Wolf, 158 Pa. 622; Wilhelm's App., 79 Pa. 134; Mitchell v. Darley Main Colliery Co., L.R. 14 Q.B. Div. 125.

Under their statement, the plaintiffs could not recover damages for injury occasioned by distant mining resulting in loss of lateral support: Richards v. Jenkins, 18 Law Times Rep. 437; Birmingham v. Allen, L.R. 6 Ch. Div. 284.

Even if the plaintiffs could recover damages for distant mining and attendant loss of lateral supports, no damages to their building could be recovered: Barringer & Adams on Mines and Mining, 686; Dalton v. Angus, 6 L.R. App. Cases, 791; Spohn v. Dives, 174 Pa. 474.

A verdict in favor of the defendant should have been directed because of the lack of proof of any removal of coal under the surface as claimed in the statement.

John T Lenahan, with him Thomas W. Hart and Edward A. Lynch, for appellee. -- No right of action exists in the party aggrieved until some actual damage has been sustained: Caldwell v. Julian, 2 Mills, 294; Knapp v. Slocomb, 9 Gray (Mass.) 73; U.S. v. Kennedy, 3 McLean (U.S.), 1...