Colorado Fuel & Iron Corp. v. Salardino, 16703

Citation125 Colo. 516,245 P.2d 461
Decision Date02 June 1952
Docket NumberNo. 16703,16703
Parties, 32 A.L.R.2d 1302 COLORADO FUEL & IRON CORP. v. SALARDINO et al.
CourtSupreme Court of Colorado

January & Yegge, Denver, E. M. Eagleton, Canon City, for appellant.

Edwin H. Stinemeyer, Frank G. Stinemeyer and William R. Stinemeyer, Canon City, for appellee.

ALTER, Justice.

Gus Salardino and Charles Salardino, plaintiffs below, defendants in error here, brought an action against Colorado Fuel and Iron Corporation, defendant below and appearing here as plaintiff in error, to recover for damages to improvements on certain lands owned by plaintiffs in Fremont county, Colorado. Upon trial a verdict was returned in favor of plaintiffs in the sum of $8,968.75, upon which judgment was entered. Defendant brings the case here by writ of error seeking a reversal of the judgment.

We will herein refer to the parties as plaintiffs and defendant as they appeared in the trial court.

In the complaint it is alleged that plaintiffs are the owners of certain lots with valuable improvements thereon together with lawns, trees, shrubs, walks and parkings used in connection therewith. It is further alleged that defendant is the owner of the coal deposits underlying plaintiffs' premises and is engaged in mining and removing the coal 'under or adjacent to said land of plaintiffs"; that defendant, in the removal of the coal, has performed the same in 'a careless, wrongful and negligent manner' resulting in a subsidence of plaintiffs' land and building together with the walks, curbings and approaches thereon, to their damage in the sum of $7,500, for which judgment is prayed. By amended complaint the damages are alleged to have been $15,000.

Defendant for answer specifically denied all negligence on its part and further alleged two affirmative defenses: First, that it was the owner of the mining rights within the vicinity of plaintiff's property, and its acts in removing coal therefrom were lawful and legal; and, second, that plaintiffs' improvements were placed upon its surface property with full knowledge of defendant's right to mine and remove the coal adjacent to or underlying the same, and by so doing they assumed the risk of damage to their property.

Motion for new trial was filed, based, among other grounds, upon the following: 1. Insufficiency of the evidence of negligence to permit the case to go to the jury and failure to direct a verdict because of the insufficiency thereof; 2. the instruction to which objection was interposed fixing defendant's liability as absolute, thus instructing that negligence need not be proven by plaintiffs; 3. instructions given and refused. The motion for new trial was denied.

The evidence introduced, consisting of more than 900 folios, together with about fifty exhibits, discloses that defendant's coal mining operations were conducted at about eighty feet below the surface of the territory in the vicinity of plaintiffs' property, and underground workings were approximately to plaintiffs' lot lines extended vertically. On the evening of December 11, 1948, a subsidence occurred in plaintiffs' property while the buildings thereon were occupied by about 100 people. The subsidence resulted in damage to the building by cracks of various sizes in the walls and foundation thereof and a disturbance of the surface of the land. There is no direct evidence concerning any damages occurring by reason of the subsidence of the surface of plaintiffs' lots from their natural condition, but all evidence introduced is with reference to the damages to the structure placed thereon by plaintiffs, resulting from the subsidence.

Our consideration of the question involved is made extremely difficult by reason of the fact that the only map introduced for the purpose of disclosing defendant's underground workings has no identification marks indicating the points or parts thereof to which the testimony of witnesses was directed. We note that a witness was called for 'cross-examination under the statute' to testify with reference to the exhibit which constituted the map of defendant's underground workings and the surface above the same. In nineteen pages of the record we find that in the questions or answers of the witness the words 'here' or 'there' were used more than eighty times without any indication whatever on the exhibit identifying the points to which the attorney or the witness were referring. The exhibit is wholly useless to us in connection with this review.

The only specifications of points which we consider it necessary to determine are those involving the instructions given by the trial judge. There were four instructions tendered by defendant, all of which the court refused to give, and defendant objected to five instructions given. It is sufficient to say that in the four instructions tendered the question of negligence was involved, and in the five instructions given over objection the question of negligence was not mentioned, and neither 'negligence' nor any word of similar import is to be found in any of the court's instructions.

The first instruction given by the trial court and to which defendant's counsel objected, reads:

'You are instructed that in this case the Plaintiffs seek to recover damages for injuries which they claim resulted to their building by reason of a subsidence which occurred in the mine of the defendant under the general area in which plaintiffs' building is situate. Plaintiffs claim that the injuries which they have shown to their building or which they allege occurred to their building resulted from no other cause than that of the subsidence; they claim that they are entitled to surface support and that the acts of the defendant have deprived them of the surface support to which they are entitled.

* * *

* * *

'Accordingly, if you find that damage has occurred to plaintiffs' building at the time and since the subsidence in defendant's mine and up to the date of this trial and you further find that the damage shown was caused by no other cause than the subsidence in defendant's mine, then you must find the issues in favor of the plaintiffs and award damages to plaintiffs upon the basis stated in further instructions on that subject. (Italics supplied.)

To this instruction defendant interposed the following, among other, objections:

'The defendant objects to the giving of Instructions Nos. 1, 2, 3, 4 and 5 for the reason, first, that the plaintiffs' suit was brought upon the theory of the defendant's negligence, which is the theory upon which the defendant appeared and defended the suit, and that plaintiffs have now abandoned that theory and seek to recover on the theory of absolute liability for maintenance of the surface regardless of negligence.

'Second, that the plaintiffs cannot recover in this case without showing by a preponderance of the evidence that the defendant in its mine operation has been guilty of negligence which is the direct and proximate cause of their damage.

'Third, that the plaintiffs cannot recover in this case without proof of negligence because they have failed to show that the mining operations are sub-adjacent operations, and that the evidence in this case shows that such mining operations were adjacent.

'The defendant further objects to Instruction No. 4 for the reason that it implies speculative and future damage which might occur to the plaintiffs' property and is not an item of damage that can be recovered in this action.

'The defendant further objects to Instruction No. 5 for the further reason that it does not limit the damages to the amount necessary to restore the structure through repairs.

'And further, that Instructions Nos. 4 and 5 are likely to confuse the jury.'

Defendant then offered the following instructions which were refused:

'Defendant's Instruction 1-B (Refused)

'You are instructed that in order for the plaintiff to recover in this case, the defendant must be found to have been guilty of negligence as defined in these instructions, and such negligence must have been the proximate cause of the damage.

'Defendant's Instruction 1-C (Refused)

'You are instructed that the Defendant, as owner of the coal adjacent to and underlining Plaintiffs' building and property, may lawfully mine the same, where adjacent to or underneath the Plaintiffs' property; and, in the absence of negligence, the Defendant is not liable for any damages sustained by Plaintiffs through such mining operations.

'Defendant's Instruction 1-D (Refused)

'You are instructed that the fact that the Plaintiffs' property may have been damaged as the result of the mining operations of the defendant, is not sufficient in itself to establish liability against the defendant, but the plaintiff has the burden of proving by a preponderance of the evidence, that the mining operations of the defendant were done in an unskillful and negligent manner as negligence is defined in these instructions. If the mining operations carried on by the defendant were done in the manner required by law and standard practices were employed to provide support for adjacent property, but such damage was caused by unforeseen conditions and without negligence on the part of the defendant, then your verdict must be for the defendant.'

The instructions of the trial court placed an absolute liability upon defendant for damages resulting from subsidence of the surface in its natural state as well as the structures created thereon. While it is true that we are here concerned with subjacent support only, nevertheless the authorities hereinafter cited are in accord that one who disturbs the surface in its natural state by the removal of either subjacent or lateral support is liable for the damages resulting therefrom without proof of negligence. We have called attention to the fact that plaintiff' only evidence of damages resulting from the subsidence of their land was directed to the structure on the premises and...

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6 cases
  • Blake Const. Co., Inc. v. United States
    • United States
    • U.S. Claims Court
    • December 8, 1978
    ...to the natural state of the land. E. g. Law v. Phillips, 136 W. Va. 761, 68 S.E.2d 452, 457 (1952); Colorado Fuel & Iron Corp. v. Salardino, 125 Colo. 516, 245 P.2d 461, 464 (1952).1 On the other hand, damages to a structure on adjacent land caused by the removal of lateral support normally......
  • Breeding v. Koch Carbon, Inc.
    • United States
    • U.S. District Court — Western District of Virginia
    • November 29, 1989
    ...liable for injury to buildings resulting from subsidence caused by his removal of subjacent support was Colorado Fuel and Iron Corp. v. Salardino, 125 Colo. 516, 245 P.2d 461 (1952). This case was specifically overruled on the very point in question by Gladin v. Von Engeln, 195 Colo. 88, 57......
  • Gerrity Oil & Gas Corp. v. Magness
    • United States
    • Colorado Supreme Court
    • September 15, 1997
    ...right to destroy, interfere with or damage the surface owner's correlative rights to the surface. See Colorado Fuel & Iron Corp. v. Salardino, 125 Colo. 516, 522, 245 P.2d 461, 464 (1952), overruled on other grounds, Gladin v. Von Engeln, 195 Colo. 88, 575 P.2d 418 In the absence of statute......
  • Gladin v. Von Engeln
    • United States
    • Colorado Supreme Court
    • March 6, 1978
    ...and fill on plaintiffs' land did not materially contribute to the subsidences. The court of appeals found Colorado Fuel & Iron Corp. v. Salardino, 125 Colo. 516, 245 P.2d 461 (1952), dispositive in its ruling that there cannot be strict liability for removal of support to land containing ma......
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