Jones v. Wagner

• Decision Date: 09 February 1871
• Citation: 66 Pa. 429
• Parties: Jones <I>versus</I> Wagner <I>et al.</I>
• Court: Pennsylvania Supreme Court

66 Pa. 429

Jones versus Wagner et al.

Supreme Court of Pennsylvania.

November 7 and 8, 1870.

February 9, 1871.

November 7th and 8th 1870.

Before THOMPSON, C. J., READ, AGNEW, SHARSWOOD and WILLIAMS, JJ.

Error to the District Court of Allegheny county: No. 169, to October and November Term 1869.

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M. W. Acheson, for plaintiffs in error.—The manner of mining is to be controlled by the custom in the coal region: Smart v. Morton, 30 Eng. Law & Eq., 385; Rowbotham v. Wilson, 8 H. of L. 348. The grant of coal in the soil gives the full right to dig and carry it away with all the means to obtain it: Caldwell v. Fulton, 7 Casey 475; Sheppard's Touchstone, ch. 5, p. 89; and is inconsistent with any dominion in another: Clement v. Youngman, 4 Wright 341; Brown v. Corey, 7 Id. 495; Penna. Salt Co. v. Neel, 4 P. F. Smith 9; Whitaker v. Brown, 10 Wright 197; Turner v. Reynolds, 11 Harris 199; Irwin v. Covode, 12 Id. 167. The defendants were bound to use their rights carefully, in accordance with the established practice of mining: Ratcliff v. Mayor of Brooklyn, 4 Comstock 185; Clark & Foot, 8 Johns. R. 421; Frankford & B. T. Co. v. The Phila. & T. Railroad, 4 P. F. Smith 345; Panton v. Holland, 17 Johns. R. 92; Rockwood v. Wilson, 11 Cushing 221; Bentz v. Armstrong, 8 W. & S. 40; Haldeman v. Bruckhart, 9 Wright 514; Wheatley v. Baugh, 1 Casey 528; Smith v. Kenrick, 7 Mann. G. & S. 515. Proof of usage is admissible to interpret a contract: 1 Greenlf. Ev. §§ 292, 294; 2 Parsons on Cont. 49; Dwight v. Whitney, 15 Pick. 179; Stultz v. Dickey, 5 Binn. 285; Aughinbaugh v. Coppenheffer, 5 P. F. Smith 347; Taylor's Land. & Ten. §§ 350, 538, 554; Van Ness v. Pacard, 2 Peters 137; McCullough v. Irvine, 1 Harris 438. The house having been built after the partition, the right to a support for the soil does not extend to the building: Washburne on Easements 441 et seq.

S. M. Raymond and C. B. M. Smith, for defendant in error. —By the partition a servitude to support the soil was imposed on the coal estate: Washburne on Easements 16, 17; Kieffer v. Imhoff, 2 Casey 438. The contract rights of the parties cannot be controlled by custom: Stoever v. Whitman, 6 Binn. 416. To establish a custom the right must be ancient, certain, uniform and reasonable: Rapp v. Palmer, 3 Watts 179; Newbold v. Wright, 4 Rawle 212; Cox v. Heisley, 7 Harris 243; Foley v. Mason, 6 Md. 37; Jordan v. Meredith, 3 Yeates 318; Henry v. Risk, 1 Dallas 265; Frith v. Barker, 2 Johnson 327; Brown v. Jackson, 2 Wash. C. C. 24; Holmes v. Johnson, 6 Wright 159. The surface is entitled to support from the subjacent soil; Humphries v. Brogden, 1 Eng. L. & E. 241; Harris v. Ridyng, 5 M. & W. 59; The Earl of Glasgow v. The H. & C. Alum Co. 8 Eng. L. & E. 13; Farrand v. Marshall, 19 Barbour 380; Richardson v. Vermont C. Railroad, 25 Vermont 465.

The opinion of the court was delivered, February 9th 1871, by THOMPSON, C. J.

The piece of ground out of which the controversy in this case has arisen, formerly belonged to John Ormsby's estate, and in the partition of that estate in November 1855, the minerals in, and the surface of the land were separated and made to constitute two separate and distinct properties or estates, without any restriction, limitation or servitude imposed on either, and were so allotted among two of Ormsby's heirs. The plaintiff claims title to the surface through the heir to whom it was allotted, and so do the defendants to the minerals from another heir to whom they were allotted.

The question in the court below and here, is whether the latter have by their unrestricted title, the right to mine and take out all the coal underlying the surface, without liability for injury thereto, or to buildings and improvements thereupon by subsidence or otherwise. The learned judge below reserved the point and submitted to the jury the question of injury; to what amount, and whether it arose from unskilful or negligent mining in not leaving sufficient pillars or props in the mine to sustain intact the surface. On this question the jury found for the plaintiff, and at a subsequent day the court ruled the reserved question also in his favor and entered judgment on the verdict. From this statement it will appear, that the only negligence or unskilfulness at all attributable to the defendants, if any, arose from not leaving sufficient pillars of coal or supports to sustain the surface, and this they undoubtedly did not, most probably under the belief that all the coals in the mine belonged to them by virtue of their purchase and title. This was certainly true with the exposition of such a right given by Baron Parke in Harris v. Ryding, 5 M. & W. 60: "I do not mean to say," observed that able judge, "that all the coal does not belong to the defendants, but they cannot get it without leaving proper supports."

The right of supports, ex jure naturæ, which the owner of the soil is entitled to receive from the minerals underneath, has, within comparatively a few years, received much attention in the courts in England, and the rule deducible from the cases in all the courts, the House of Lords, Exchequer and Queen's Bench, is, that where there is no restriction or contract to the contrary, the subterranean or mining property is subservient to the surface to the extent of sufficient supports to sustain the latter, or in default, there is liability to damages by the owners or workers of the former for any injury consequent thereon to the latter. This is fully supported by Harris v. Ryding, 5 M. & W. supra, determined at Easter Term 1839, in the Exchequer; Humphries v. Brogden, 1 Eng. Law & Eq. 251 (1850), in the Queen's Bench before Lord Campbell, C. J., and Patteson, Coleridge and Erle, JJ. The whole question was there discussed most learnedly and ably by the Lord C. J., and the same result arrived at as had been in the Court of Exchequer, supra, and in the case of The Earl of Glasgow v. The Hurlet Alum Co., House of Lords in 1850, 8 Eng. Law and Eq. 13. There are many other cases referred to in the English courts to the same effect, by Rogers on Mining, p. 455, et seq. Among them are Rowbotham v. Wilson, 8 H. L. Ca. 348; Pennington v. Gallard, 9 Exch. 1, for the principle...