Linton-Summit Coal Co. v. Hutchison

• Decision Date: 01 May 1953
• Docket Number: LINTON-SUMMIT,No. 29036,29036
• Citation: 232 Ind. 369,111 N.E.2d 819
• Parties: COAL CO., Inc. v. HUTCHISON et al.
• Court: Indiana Supreme Court

Page 819

111 N.E.2d 819

232 Ind. 369

LINTON-SUMMIT COAL CO., Inc. v. HUTCHISON et al.

No. 29036.

Supreme Court of Indiana.

May 1, 1953.

Hays & Hays, Sullivan, Dix, Dix, Patrick, Ratcliffe & Nunn, Terre Haute, for appellant.

Pigg & Tennis, Sullivan, Crane & Jackson, Bloomfield, for appellees.

GILKISON, Judge.

This action was brought by appellees to collect damages from appellant for an alleged violation of a certain grant to it by appellees. The grant, omitting signatures and acknowledgment, is as follows:

'Grant

'This Indenture Witnesseth, that we, Beulah C. Hutchison and Elza Hutchison, her husband, of Sullivan County, State of Indiana, hereby give and grant to the Linton-Summit Coal Company, Inc., a corporation, incorporated by and under the laws of the State of Indiana, the right to drill a hole for the purpose of removing water from coal mines on the following described real estate located in Sullivan County, State of Indiana, to-wit:

'The northeast quarter of the southwest quarter of Section 5, Township 7 North, Range 8 West,

'the said grantee to have the right to pump such water from coal mines under said real estate and to pipe water to fence of property above described, to the border by such described real estate and into the ditch upon such highway.

'In consideration for this grant, the said grantee agrees not to mine the coal under the following described part of said real estate, located in Sullivan County, State of Indiana, to-wit:

'Beginning at a point 145 feet south and 767 feet west of the center of Section 5, Township 7 North, Range 8 West, running thence south 82 feet; thence west 92 feet, thence north 82 feet; thence east 92 feet to the point and place of beginning,

'said last described real estate being that part of the real estate upon which the house is located and sufficient ground in addition thereto to prevent subsidence because of the mining of the coal.

'In Witness Whereof the said Beulah C. Hutchison and Elza Hutchison, her husband, have hereunto affixed their hands and seals this 8 day of October, 1948.'

At the time of the execution of this grant, appellees were the owners of the forty acre tract of real estate within which the real estate described in the grant is located, and appellant owned a stratum of coal underlying the forty acre tract, which it was then removing by shaft mining. The purpose of the contracting parties is revealed fully by the terms of the grant.

Among other things the complaint avers that after the execution of the grant, in February, 1949, the Linton-Summit Coal Company, Inc. mined and removed the coal from under the surface of the real estate and from under the dwelling house and the real estate described in the written grant, and as a result the surface of the real estate had subsided, and cracked, and broke the foundation of the house and the walls and floor of the basement and porch and the plaster of the house, all in violation of the terms of the grant, and to plaintiffs' damage in the sum of $12,000.00.

The cause was tried by the court, without a jury and a finding and judgment was rendered for plaintiffs in the sum of $7,500.00. Defendant's motion for new trial containing seventeen reasons was overruled and the appeal was perfected.

In its argument appellant groups together causes 5, 6, 7, 8, 9, 12 and 13 of its motion for new trial. We shall follow this grouping for the purpose of deciding the questions so presented.

With respect to the witness, Burge Squire, after qualifying by detailing his long experience in mining coal in the district, and his extensive observations of the cracks, sinks and other indications of subsidence on the real estate involved in the 'grant' noted, he was asked: 'What would you say to the court in your opinion made these cracks you have told the court about? The question was objected to 'for the reason that the witness had not been qualified as an expert on cracks and subsidence.' The court overruled the objection. We find no error in this ruling. The objection questioned the weight rather than the competency or relevancy of the offered evidence. The weight of offered evidence is always left to the determination of the trier of the facts, which in this case was the trial judge. It has been truly stated that 'Evidence given by witnesses testifying from personal observation is of greater weight than that of witnesses testifying merely from general knowledge. So, direct or positive evidence has greater weight than opinion evidence, or surmises or estimates, or an expert's speculation; and a theoretical possibility, wholly unsupported by proof or probability, cannot outweigh direct testimony, which, to the ordinary mind, carries conviction beyond a reasonable doubt.' 32 C.J.S., Evidense, § 1031, pages 1068, 1072 and note 61. See also, Brazil Block Coal Co. v. Gibson, 1903, 160 Ind. 319, 325, 66 N.E. 882, 98 Am.St.Rep. 281. So evidence of an experienced layman based upon undisputed facts that he has observed with respect to the matter involved is competent and material. The competency of a witness to testify as an expert is a matter resting largely in the discretion of the trial court, with whose rulings appellate courts are slow to interfere. The Lake Erie and Western Railroad Company v. Mugg, Administrator, 1892, 132 Ind. 168, 170, 31 N.E. 564.

Similar questions were put to plaintiffs' witnesses, Alec Davidson, Charles Meier, James Oliver, William Wilkey, and Ora Butler, with similar objections by the defendant, which objections were overruled by the court. We find no error in these rulings. It was not error to overrule motions by the defendant to strike out the answers to such questions.

A witness, Glessie Eads, after testifying that he had worked in the coal mines 'for forty some odd years', was asked: 'And you have observed what happens when you take coal out from the surface?' This was objected to by the defendant, the objection being: 'That is a leading question.' The objection was overruled. There was no error in this ruling.

In its brief appellant waives any questions presented...