Lewey v. H.C. Fricke Coke Co.

Decision Date11 March 1895
Docket Number46
Citation31 A. 261,166 Pa. 536
PartiesJulius Lewey, Appellant, v. H.C. Fricke Coke Company
CourtPennsylvania Supreme Court

Argued October 2, 1894

Appeal No. 46, Oct. T., 1894, by plaintiff, from judgment of C.P Westmoreland Co., Aug. T., 1892, No. 123, on verdict for defendant. Reversed. MITCHELL, J., dissents.

Trespass for illegal mining of coal.

Plaintiff in his statement of claim averred that defendant had entered into and under the surface of plaintiff's land, and disregarding plaintiff's rights, had mined and converted to its own use coal to the value of thirty thousand dollars.

Defendant pleaded not guilty, and at the trial claimed that the case was barred by the statute of limitations. The evidence showed that the coal was mined in 1884. Evidence for the plaintiff tended to show he had no knowledge of the mining until 1891.

The court charged in part as follows:

"In regard to the coal, the defendant does not deny that it mined and carried away the coal under this particular property. It alleges that it was permitted to go through this coal, and it denies that it was guilty of any wrongful act in this respect, because such license was obtained. At any rate there is no dispute that the defendant took away the coal, and no dispute that it was in 1884. There seems to be little dispute as to the amount of coal taken. The plaintiff contends -- you will remember the testimony of Mr. Long -- that there were 4500 bushels of coal, and the defendant, on the other hand, alleges that there were about 4000; and under the act of assembly, which was passed for a case like this, the plaintiff claims the three-fold value of that coal. The evidence is that the coal was worth three and a half cents a bushel; that would be the value, less the cost of taking it to the mouth of the pit.

"[The trouble with this branch of the case, as we understand it, is in regard to the statute of limitations. That is an act of assembly passed in this commonwealth many years ago. It has received the sanction of the courts, and must be applied wherever it can be applied. It stands upon the statute book, and it provides in plain terms that no action of trespass shall be maintained after six years from the time the cause of action arises -- six years after the trespass is committed. On the theory that the plaintiff adopts, the defendant went on this property and carried away this coal, and if suit had been brought in proper time the defendant would have been liable to pay three times the value of this coal. But according to the summons the suit was brought on the 18th day of May, 1892. That was considerably more than six years after the cause of action accrued. So that, so far as the coal is concerned, this action cannot be maintained. If the cause of action accrued in 1884, without considering whether Mr. Lewey has properly brought the suit, or whether he ought to have joined Mr. Trimmer, we think the statute of limitations is a bar to recovery on this branch of the case.

"In regard to the destruction of the well of water in 1891, the plaintiff alleges that this injury was occasioned by the same trespass; that is, the trespass of 1884. There is no evidence of any other trespass, of any other mining going on under the Lewey property after that time, and while the cause of action accrued in 1884, undoubtedly the defendant would be liable for any other trespass on the property of Mr. Lewey or any damage occasioned, but it is not alleged in the declaration that there was any trespass after that time that occasioned these injuries. The theory of the plaintiff is, that the original trespass, the taking out of this coal in 1884, occasioned the falling down of the smoke-stack and some other injury to the building in September, 1891; there was no very serious injury to either the building or smoke-stack at that time. The matter most complained of is this well. It is alleged that it was valuable, and it totally failed in 1891. As it appeared from the pleadings and the evidence, the contention is that this is one of the consequences of the original trespass in 1884, and we think likewise the statute of limitations would be a bar. For any trespass you can have but one action; you must include in that past, present and future damages -- is the general rule that applies to all actions of this kind. Such is our view of the law, and hence we say, as to this branch of the case, the plaintiff is likewise met with the statute of limitations, which prevents a recovery.

"In regard to this well, there is a serious contention of fact. It appears that the trespass was committed in 1884; there is no allegation that there was any trespass after that time. According to the testimony of the plaintiff, there was no diminution of the water, no indication of the failure of water, from 1884 to 1891. It was used constantly, or nearly so. At one time he bought water from the water company at that place; but the well water was used for the purpose of running his mill uninterruptedly, or, with slight interruption, from 1884 to 1891. At that time it failed; failed rather suddenly. The theory of the defence is, that they were then mining their own coal, the coal they had a title to there, on the northeast of the Lewey property. This entry, as we understand it, ran through the southwest corner of the Lewey property, about 60 or 65 feet from where this well was located.

"All of the experts called in this case agree, and their testimony is undisputed. And even if the case had been submitted to you, we should have felt constrained to say that from the lay of the ground, the natural formation of the strata there, it was an impossibility that the opening of this heading on the southwest corner of that lot could have drained the well, or affected it in any way; and that the contention of the defendant is, that the well having continued there for a long lapse of time, from 1884 to 1891, conclusively demonstrates that such theory is correct. The defendant claims that it was mining the coal in its own land, and that it had a right so to do; and if it did that without negligence it would not be responsible for damages occurring. The defendant's theory is, that from the structure of the overlying rock, the dip of the land, the source of supply for this well was northeast of where the well was located; that this coal was mined in the years from 1885, 1886, up till 1890, or 1891, when the ribs were taken out, and when there was a falling in of the rocks in that locality, and about that time this well failed. If such were the fact, of course there ought to be no liability.

"This we mention incidentally, as, if the case had been submitted to you, it would have been a question for you to determine whether the taking of this water was caused by the trespass of 1884, or whether the water failed by reason of the digging of the defendant's own coal from 1885 to 1891. Although at the same time, as we have already said, without interfering with your province, the court would have felt like indicating to you, that under the uncontradicted testimony in the case, and considering the long lapse of time, it would seem to look very much as if no injury to the well or building could have been occasioned by the driving of this entry seven years before.

"But we hold as matter of law that the plaintiff has no right to recover, and we take it that it is your duty to render a verdict in favor of the defendant. This is a question of law altogether, and if there is any error upon the part of the court we may have an opportunity to review our action and further consider the matter. At any rate, an error of this kind can readily be corrected and no injury done to either party." [8]

Plaintiff's points were as follows:

"1. Under the evidence the title to the premises was in the plaintiff at the time the trespass was committed, and the plaintiff was in possession of the same. Answer: Refused." [1]

"2. Defendants have failed to show any title which would justify them in entering upon the lands of the plaintiff and in removing the coal therefrom. Answer: Refused." [2]

"3. The defendants having admitted that they knew they were taking the coal under the Lewey premises, and that others than W. J. Hitchman were in possession of the same and operating a facing mill thereon, the defendants are liable to the plaintiff in three times the value of the coal taken by the defendants and converted to their own use. Answer: Refused." [3]

"4. We instruct you as a matter of law that the injuries to the plaintiff's property by reason of the taking of the plaintiff's coal by the defendant, if any, were permanent in their character, and the proper measure of damage is the difference in the value of the property before and after the injuries were inflicted. Answer: Refused." [5]

"5. We instruct you that the trespass complained of amounts to a secret fraud, and the statute of limitations does not begin to run until the fraud is discovered. Answer: Refused." [6]

"6. The injury complained of being a pure tort, the plaintiff was not bound to know when his land was undermined; and the statute of limitations will not operate in favor of the defendant until six years have elapsed from the discovery by the plaintiff of the injury done. Answer: Refused." [7]

Verdict and judgment for defendant. Plaintiff appealed.

Errors assigned were (1-7, 8) above instruction, quoting it.

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

V. E. Williams, A. M. Sloan, W. A. Griffith and Atkinson & Peoples with him, for appellant. -- The statute should not begin to run from the commission of the act, but only from the time of its discovery: Mitchell v. Buffington, 10 W.N.C. 361.

The law is not so tenderly solicitous about the interests...

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