Marquette Cement Min. Co. v. Oglesby Coal Co.

• Decision Date: 07 September 1918
• Citation: 253 F. 107
• Parties: MARQUETTE CEMENT MINING CO. v. OGLESBY COAL CO.
• Court: U.S. District Court — Northern District of Illinois

253 F. 107

MARQUETTE CEMENT MINING CO. v. OGLESBY COAL CO.

United States District Court, N.D. Illinois, Eastern Division.

September 7, 1918

Tenney Harding & Sherman, of Chicago, Ill., and Duncan &amp O'Connor, of Ottawa, Ill., for plaintiff.

Adams Crews, Bobb & Wescott, of Chicago, Ill., for defendant.

SANBORN District Judge.

This is a bill for an injunction by the owner of a limestone cement mine to restrain the defendant from so operating its mine situated directly beneath the former as to remove the subjacent support. It is conceded, and shown by the evidence of both parties, that there is an actual subsidence of 20 to 25 inches. The defendant, while admitting subsidence contended on the trial, and gave evidence tending to show, that it was so gradual that the damage occurring in plaintiff's mine was not caused by such subsidence, but resulted from a careless and improper manner of mining the cement rock. It was decided at the trial, however, that certain of the damage was caused by the subsidence, particularly on account of the uneven or differential lowering of the strata of rock and shale underlying the limestone stratum in which the cement mine is operated. Certain other injuries in the cement mine have been due to the plaintiff's method of mining, in not leaving pillars of sufficient size to support the overburden, or by mining shale underneath the pillars, and thus leaving insufficient support. It remains only to recite enough of the facts to aptly apply the governing rules of law, after an examination of the legal principles properly applicable.

Defendant's position is that the suit for injunction cannot be maintained because the remedy at law is adequate, and it is therefore entitled to a trial of the facts by a jury, under the third amendment to the federal Constitution and section 120 of the Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1132 (Comp. St. 1916, Sec. 1112)). It further contends that subsidence was authorized by the dealings of the parties, it being understood that the coal could not otherwise be taken out, and that the correspondence and contract leading up to the conveyances passing between the parties, by which the cement mine and the coal seam were severed, as well as those conveyances themselves, recognized the right of subsidence by the defendant. A further claim, that all the injuries to the cement mine were caused by negligent and improper mining methods pursued by plaintiff, was decided at the trial in respect to portions of the mine in plaintiff's favor, as already referred to.

The property in question is at Oglesby, Ill., in the La Salle geological region, and the strata of limestone, coal, shale, etc., are sedimentary deposits. The plaintiff's mine is about 100 feet below the surface, and the coal seam now being mined by defendant is about 500 feet below the other. From the surface down to the cement mine the geologic section is glacial drift and various sorts of shale and clay. Then comes the limestone bed, about 40 feet thick, composed irregularly of nodular limestone (hubbly limestone and shale), finegrained limestone, and crystalline limestone, with two thin horizontal shale partings. The mine floor is shaly limestone or soapstone underlaid with shale, supported by a thin layer of hard thin-bedded black shale or slate. This floor is of varying thickness, from 4 to 15 feet; and below it, down to the coal seam in question, are conglomerate rock, soft clay shales, some silty or sandy, hard shales, coal seams seven and five, green and grey shales, some very hard shale, a thin layer of limestone, and some 20 feet of tough, hard, shale composing the roof of the coal mine. The various layers are quite generally horizontally disposed to each other, and seams and partings abound. During the slow process of settlement due to subsidence, it is supposed that the shales, rock, and other kinds of earth move or slide on each other, finding their final adjustment in much the same form as before, though in a more blocky condition. Upon this the geologists, mining engineers, and miners who testified for defendant based their opinion that the subsidence caused no damage to the plaintiff's mine.

Plaintiff's mining is carried on by the room-and-pillar or pillar-and-stall system, by the advancing and not the retreating plan, the final step being to get as much material as possible by robbing the pillars and roof coming back. Defendant uses the long-wall system. The former consists in beginning at the mine opening, cutting tunnels or entries in the limestone ledge, and taking off rooms from them, leaving a limestone roof of varying thickness, theoretically sufficient to sustain the hundred-foot overburden when pillars of sufficient size are allowed to remain. When the boundary is reached such part of the pillars and roof is taken as is practicable as the work recedes. The work commenced in a small way some 30 years since, and for a long time the rooms were made larger than the best mining practice required. Within the last two or three years the entries and rooms have been made smaller and the pillars larger. Since the making of cement requires a certain amount of silica, found in the shales, the floor of the rooms was mined in certain parts for this purpose, and in places the pillars settled, causing floor heaving and cracking, roof-cracks, roof-falls, spawling, and some cave-ins. These occurred mainly in parts where there was no coal mining near enough to have any influence, and are not claimed to have been caused by it. Others are claimed to be wholly or partly due to the subsidence, and these, particularly the Hand cave and the Calumet Entry cave, will be mentioned presently.

The Title to the Two Mines.-- That part of the cement mine which is now being worked consists of a tract about 7,000 feet long, roughly estimated at 200 acres. A part was originally owned by plaintiff and a part by defendant, and they arranged to sever the ownership by having the coal rights in plaintiff's land conveyed to defendant, plaintiff retaining all the rest, and, where defendant was owner, by having the fee conveyed to plaintiff, reserving the coal and the right of removal.

In the negotiations and writings leading up to these conveyances, as well as in the deeds themselves, it is claimed by defendant that there is an implied understanding that defendant might remove the coal even though subsidence was caused. These negotiations were begun by a letter of August 3, 1904, from defendant to Mr. N.W. Duncan, an officer of the plaintiff. In this letter it was proposed that the parties sever their respective ownership in the following manner: Defendant proposed to convey the cement rock and clay lying within 75 feet of the surface, with the right to mine them without entering upon the surface, and in the process of mining pillars of a specified size should be left, but no covenant not to injure the surface should be required. Mr. Duncan, it was proposed by this letter, should convey to defendant the coal and other minerals, not including cement rock and clay lying within 75 feet of the surface, with the right to mine the coal without entering upon or injuring the surface, Duncan to reserve such part of the coal and other minerals as might underlie the cement plant.

After negotiations covering some time, conveyances were made to and from each party. Deeds from plaintiff or its grantors to the defendant described the No. 2 coal seam, and so much of the rock, clay, and other minerals just above and just below the vein of coal as might be required in connection with the mining and removing of the coal, together with the right to mine and remove the same, and the adjacent rock, clay, and other minerals, 'without entering upon or injuring the surface thereof,' excepting the coal under a tract 200 feet wide by 600 feet long under plaintiff's manufacturing plant. Deeds made by defendant to plaintiff excepted the coal and minerals just above and below, with the same right to mine and remove it 'without entering upon or injuring the surface thereof. ' Most of the deeds back and forth contain like provisions, but those which do not seem to be unimportant on the questions of construction and are not particularly stated.

Effect of Subsidence from Coal Mining.-- After mining cement rock for many years, and having practically no trouble in the mine, in 1910 roof-falls, pillar-cracks, and floor-heaves commenced to appear, followed in some cases by cave-ins to the surface. The first cave-in was the Garage cave, May 15, 1910, followed by the Riley cave, September 18, 1910, a small cave on the south boundary in 1912, and two caves nearby in 1913. All these were caused by shale mining and not by coal mining. On September 10, 1913, occurred the Hand cave, the largest of all. At this time the coal face was approaching, but did not reach the immediate vicinity until February, 1914. The pillars left in this area were quite small, and the testimony leaves it uncertain whether the trouble was caused wholly by subsidence, but it was probably due both to that and the methods of mining. Early in 1914 an entry about 700 feet long and 35 feet wide, known as the Calumet entry, was driven in the solid rock in the western part of the mine immediately under the advancing coal mining face, and in December, 1914, the whole tunnel fell, in the course of a few days. The testimony leaves no doubt that this was caused by subsidence.

There were other distinct cave-ins in the region of the advancing coal face which were caused in part by subsidence, and in part by small pillars, shale mining, or both.

The most clear evidence of injury caused by subsidence is in the northwestern part of the mine, from the Hand cave region to the northeast corner....