Kerr v. Clinchfield Coal Corp.

• Decision Date: 23 September 1937
• Citation: 169 Va. 149
• Parties: NANNIE A. KERR v. CLINCHFIELD COAL CORPORATION.
• Court: Virginia Supreme Court

Page 149

169 Va. 149

NANNIE A. KERR v. CLINCHFIELD COAL CORPORATION.

Supreme Court of Virginia, Staunton.

September 23, 1937.

Present, All the Justices.

1. JUDICIAL NOTICE — Matters of Common Knowledge — That Deprivation of Water Results in Material Damage. — It is a matter of common knowledge that no injury can be inflicted that would be more harmful and result in more material damage to livable premises than to deprive them of the comfort of pure and wholesome water.

2. EXPERT AND OPINION EVIDENCE — Value — Value of Land before and after Destruction of Water Supply — Case at Bar. — In the instant case, an action by the owner of a tract of land against the owner of the mineral rights under the land for pulling mine pillars necessary as a subjacent support for the surface of the land, thereby causing plaintiff's water supply to be cut off, plaintiff introduced as a witness a plumber and steam fitter who had put in the water system affected by the withdrawal of the pillars, and who had owned land in an adjoining county. This witness testified as to the damage to plaintiff's property, giving his estimate as to the difference between the value of the property with and without water. Defendant's motion to strike out the testimony of this witness on the ground that he had never owned, bought or sold any real estate in the county, that his testimony was not as to the difference in market value, and that he had not qualified to speak on the subject, was sustained by the trial court.

Held: That the action of the trial court was prejudicial error, as the testimony of the witness should have gone to the jury for what it was worth, its effect and weight being for the jury to assess and value.

3. EXPERT AND OPINION EVIDENCE — Value — No Particular Training or Experience Necessary to Qualify Witness. — No special training or experience is necessary for a witness to value, and an actual acquaintance with the class of value in question is alone necessary.

4. EXPERT AND OPINION EVIDENCE — Value — Qualifications of Witness to Land-Value. — A witness to land-value need not be by occupation a dealer in land; nor need he himself have made purchases or sales of land; nor need he have had personal knowledge of specific sales; any person acquainted with such values may testify, or any person residing in or owning land in the neighborhood.

5. EXPERT AND OPINION EVIDENCE — Damages — Value Same Qualifications Required of Witnesses Who Testify to Damages and to Value. — Witnesses offering their opinions of the amount of damages in a given case must usually possess the same qualifications as those testifying to value.

6. WATERS AND WATERCOURSES — Deprivation of Water — Surface Owner's Right to Recover for Deprivation from Withdrawal of Subjacent Support — Case at Bar. — In the instant case the owner of a tract of land brought an action against the owner of the mineral rights beneath the land for pulling mine pillars which were necessary as a subjacent support for the surface of the land, thereby cutting off plaintiff's water supply. Counsel for defendant urged that there was grave doubt as to whether plaintiff was entitled to recover anything for water destroyed by defendant's mining operation.

Held: That plaintiff was entitled to recover.

7. WATERS AND WATERCOURSES — Deprivation of Water — Liability for Failure to Support Surface Properly. — The owner of coal beneath the surface is liable to the surface owner if a spring is ruined through failure to support the surface properly, but not where the injury to the spring is caused by the mining operations when the support of the surface is sufficient.

8. DAMAGES — Consequences Reasonably Certain to Follow from Injury. — Where injuries are of a permanent nature there may be a recover for consequences which have not yet actually ensued, if reasonably certain to follow.

9. WATERS AND WATERCOURSES — Deprivation of Water — Measure of Damages — Instructions — Case at Bar. — In the instant case, an action by the owner of a tract of land against the owner of the mineral rights under the land for withdrawal of mine pillars necessary as a subjacent support for the surface of the land, thereby causing large cracks or fissures to appear in part of the land and destroying plaintiff's water supply, the court gave two instructions as to the measure of damages, the first telling the jury that the measure was the difference between the value of the land before and after the events in controversy, and the second telling the jury that the measure was the difference between the market value of the lands before and after the injuries complained of.

Held: That the two measures of value were not the same in the instant case, and the two instructions, differing as they did, might have had a tendency to mislead the jury.

10. WATERS AND WATERCOURSES — Deprivation of Water — Measure of Damages — Instructions — Case at Bar. — In the instant case, an action by the owner of a tract of land against the owner of the mineral rights under the land for withdrawal of mine pillars necessary as a subjacent support for the surface of the land, thereby causing large cracks or fissures to appear in part of the land and destroying plaintiff's water supply, the court gave two instructions as to the measure of damages, the first telling the jury that the measure was the difference between the value of the land before and after the events in controversy, and the second telling the jury that the measure was the difference between the market value of the lands before and after the injuries complained of.

Held: That the first instruction was preferable.

11. WATERS AND WATERCOURSES — Deprivation of Water — Damages — Inadequacy of Damages — Case at Bar. — In the instant case, an action by the owner of a tract of land against the owner of the mineral rights under the land for the withdrawal of mine pillars which were necessary as a subjacent support for the surface of the land, thereby causing large cracks or fissures in part of the land and destroying plaintiff's water supply, the preponderant weight of testimony on the subject was that plaintiff's property was materially damaged, and plaintiff estimated the damages at $5,000, while another witness placed the damages at $6,700. The jury returned a verdict for $900.

Held: That, as the verdict was an arbitrary one, in that there was no evidence as a basis for it, and there was competent evidence that the damages awarded were inadequate, the judgment of the trial court should be reversed and the case remanded for a new trial on the question of the quantum of damages alone.

Error to a judgment of the Circuit Court of Dickenson county. Hon. A. G. Lively, judge presiding.

The opinion states the case.

S. H. & George C. Sutherland, for the plaintiff in error.

M. M. Heuser, A. K. Morison and W. L. Rush, for the defendant in error.

BROWNING, J., delivered the opinion of the court.

The plaintiff in the trial court, who is the plaintiff in error in this case, owned the surface of a tract of land containing twenty-three acres in Dickenson county, Virginia, fronting on the west side of McClure river some 1,200 feet, and extending back from the river and up the mountain side a distance approximating 2,000 feet. Immediately between the river and the points where the ascent to the high land or mountain begins is a level bottom of width varying from 100 to 250 feet.

On this land are situated four houses. Three of them are owned by the plaintiff and one is owned by her daughter and son-in-law, John Cochran, though by agreement with the owners, which is recognized by the defendant in this suit, the plaintiff is entitled to sue for and recover such damages, if any, as may have been caused by the injuries alleged in the notice of motion for judgment.

The Cochran house has five rooms and a bath and a hot water heating system. It has a cement basement, is covered with composition shingles and is furnished with electric lights. The curtilage contains a smoke-house, barn, chicken house, garage and garden. This house was supplied with water conducted to it by water pipes, placed underground, which were connected with a concrete reservoir, which was the receptacle for the water coming from a spring located on the high land of the twenty-three acre tract some 1,350 feet from the Cochran house. The elevation of the reservoir and spring above the level ground is about 150 feet. The water was freestone — pure, clear and soft. It was free from any foreign or deleterious substances and the stream running from the spring was described as being about the size of a lead pencil. There is a hydrant in the yard, from which, at one time, the occupants of the other houses referred to got water for domestic purposes, including laundry uses. The volume of water which issued from this spring was sufficient to supply the needs of four or five families. There was another spring to the left and very near the one described. The water from both of them, if conserved, would have been sufficient to supply eighteen or twenty families.

At the time of the events described in the notice of motion, and which are relied upon as a basis for this action, the pipe had been procured and placed on the ground, and partially installed to supply the three houses which were near the Cochran house. Sometime before the institution of this suit the plaintiff had had the unoccupied bottom land subdivided into twenty-eight lots of varying dimensions.

The defendant in the trial court, who is the defendant in error here, owned all the coal under the twenty-three acre tract and mined what is known as the Upper Banner seam to a point fifty or seventy-five feet, if it were on the surface,...