Collins v. Gleason Coal Co.

• Decision Date: 19 March 1908
• Citation: 140 Iowa 114,115 N.W. 497
• Parties: COLLINS v. GLEASON COAL CO.
• Court: Iowa Supreme Court

140 Iowa 114

115 N.W. 497

COLLINS

v.GLEASON COAL CO.

Supreme Court of Iowa.

March 19, 1908.

Appeal from District Court, Webster County; J. R. Whitaker, Judge.

Action to recover damages for injury to the surface of land occasioned by the removal of coal from beneath it. There was a judgment for the plaintiff, from which the defendant appeals. Affirmed.Maurice O'Connor, for appellant.

Healy & Healy and A. N. Botsford, for appellee.

SHERWIN, J.

The plaintiff is the owner of the surface of the land involved in this controversy, and the defendant is the owner of the coal beneath the same. The land was originally owned by S. M. Devine, who conveyed it with the following reservation: “Excepting and reserving to myself, the said S. M. Devine, the coal and other mineral underlying said land, with the right of access thereto and reasonable facilities for mining and removing the same.” In his petition the plaintiff avers his occupancy of the land for farming purposes, and that he has valuable improvements thereon, consisting of a house, outbuildings, trees, etc. He further alleges that it was the “duty and obligation of the said defendant in mining said coal underneath the said surface of plaintiff's land to so conduct said operations as not to injure the surface for the uses and purposes for which the plaintiff had devoted it, and in all things to conduct their mining operations underneath said tract so that the plaintiff should not be injured or damaged by reason thereof.” Plaintiff further alleged that, notwithstanding said duty, the defendant conducted the mine to its own advantage, regardless of his rights and interests, and that, in removing said coal therefrom, it failed and negligently omitted to properly prop said mine, and failed and neglected to use proper safeguards and barriers to prevent the caving in of the entries and rooms opened underneath said land. It was then averred “that, by reason of the negligent acts thus committed, and of the care and caution thus negligently and carelessly omitted as aforesaid, the plaintiff has become injured and damaged in the said property as aforesaid.” The defendant pleaded the right to mine the coal under the reservation herein set out, and alleged that the mining was not done negligently, but in the most approved and careful manner, and according to the custom and usage of mining in this state. The record shows that, during the year 1904 the defendant mined beneath the plaintiff's land some 900 feet, in a vein of coal varying from 200 to 250 feet in width, which vein was about 90 feet below the surface of the ground, and ranged from about 6 feet thick in the center to 3 or 4 feet at the outer edges. All the coal was removed where the defendant mined, and no support was left for the roof of the mine. The trial court instructed the jury that the plaintiff, as the owner of the surface of the land, was entitled to the use and benefit of the same, and that the defendant, as the owner of the coal beneath it, was entitled thereto, but that neither had the right to in any way interfere with or deprive the other of the rights, benefits, profits, and enjoyment of his property; that the defendant, in the exercise of his ownership of said coal, would have no right to do, or negligently omit to do, any of the acts complained of by plaintiff which would in any way damage the plaintiff in the “free use, possession and complete enjoyment of the surface above said coal.” The jury was further told that, if it found that the plaintiff had been deprived of the use and benefit of his land by the sinking of the surface thereof, and that such sinking was caused by the negligent acts of the defendant, he would be entitled to recover, and, further, that if ordinary care and caution would have required the defendant to leave pillars, stubs, or ribs of coal to prevent the surface from sinking, and it did not do so, and as a result of such failure the surface fell, the plaintiff would be entitled to recover. The following instruction was then given: “The question has been suggested in argument before you as to whether or not it would be possible or probable for the defendant to mine or remove any coal from under the plaintiff's premises under the best known methods, without causing said surface to sink to at least some extent. You are instructed that, if you find from the evidence that said coal could not be so mined and removed, that fact would not and should not deprive the plaintiff of his right of recovery. The fact that the defendant could not mine and remove his property without damaging the plaintiff in the use of his would not excuse the defendant for causing said damage, if you find he has.” The defendant asked the court to instruct in effect that under the reservation in question it had the right to remove all of the coal underlying the surface without leaving support for the surface of the ground, provided only that it exercised reasonable and ordinary care in so doing. This request was refused. The appellant complains of the instruction quoted because it authorized a recovery regardless of its negligence, while the petition, it is said, is based on the theory that the injury was due to the negligence of defendant in the particulars named. The instruction is also said to be inconsistent with the other instructions to which we have heretofore referred.

While the petition is apparently based on the theory of the defendant's negligence, it, in our judgment, pleads the plaintiff's right to support for the surface of the land, and whether the removal of such support in the operation of mining be classed as negligence, or as something else, can make no difference with the legal rights of the parties. If the plaintiff was entitled to have pillars or stubs of coal left in the mine for the support of the land above, or if he was entitled to artificial support in place thereof, it was a wrong to remove such support, no matter how the wrong be named. We are unable, therefore, to see any real inconsistency in the instructions, or to say that the one quoted above was not based on the petition. The controlling question is whether the instruction announced the correct rule of law for the case. The great weight of authority, both English and American, undoubtedly supports the rule that, where the ownership of the surface of the land has been severed from the ownership of the minerals under it, unless the matter has been otherwise determined by contract or conveyance, the owner of the surface has an absolute right to necessary support for his land. And if the owner of the minerals removes them entirely, so that injury results from the subsidence of the soil, he will be liable for the resulting damage, no matter how carefully or skillfully he may have conducted his mining operations. He must either leave pillars or ribs of the mineral itself, or put in artificial supports sufficient to sustain the soil above. Harris v. Rydig, 5 M. & W. 60; Humphries v. Brogden, 12 Q. B. 739; 17...