COOLEY, C.J.
This is
an action of trespass. The following is a statement of the
case, as made for the plaintiff, for the argument in this
court:
"The
plaintiff and defendant are corporations, which for 25
years and more have been engaged in copper mining in
Ontonagon county. Their mines adjoin each other. Each owns
the land in fee on which its mine is situated. The
plaintiff, in carrying on its mining operations, left a
wall of rock, from 15 to 18 feet thick, next to the
boundary line of defendant's mine. This was left as a
barrier and protection to its mine against water or other
encroachments from the Minnesota. The Minnesota left no
such barrier; it not only worked up to the boundary line
but broke through into defendant's mine. About the year
1866 the plaintiff, at about 40 feet above its fourth
level, and from 20 to 25 feet from the boundary line
drilled a hole, of the ordinary size, about one and
one-half inches in diameter, and when the blast was fired
it blew through into the opening which had been previously
made by the defendant into the plaintiff's territory.
The drill-hole was left through from two to two and
one-half feet of solid rock. Capt. Chynoweth, then the
agent of plaintiff, examined this hole and the
surroundings, and immediately gave orders to cease work
there. This was done as a further protection against the
defendant. No work was done at this point after that until
the winter of 1883-4. The plaintiff had no knowledge of any
further trespass at this point until February, 1884, under
the circumstances related hereafter. The pump of the
defendant was stopped in 1870, and that of the plaintiff in
1871 or 1872. Plaintiff's mine filled up to the adit
level in about five years. Since
1870 the defendant has worked its mine more or less upon
tribute, and so did the plaintiff, until 1880, in May, when
it resumed work. In order to avoid liability for the
trespass committed by it at the plaintiff's fourth
level, (being the defendant's fifth level,) the
defendant sought to show, and did show, another hole at the
first level, between the two mines. A continuation of the
inquiry showed that this hole also was about 20 feet from
the boundary line, on the plaintiff's side, and that
defendant had here trespassed 20 feet upon plaintiff's
land. We do not think that the history of mining upon Lake
Superior will disclose another instance of such reckless
disregard of the rights of an adjoining mine-owner. This
encroachment and trespass by the defendant at the
defendant's fifth level occurred about the year 1869.
"In May, 1880, the plaintiff resumed mining
operations and commenced to pump the water from its mine. The
six-inch pump, formerly used by the mine, and which had
always been adequate to keep the mine unwatered, proved
wholly inadequate, and it was compelled to get a 12-inch
pump, and even this was not sufficient in the spring; and in
1882 the water gained on them 120 feet, and in 1883, 222
feet, with the pump working night and day. Capt. Parnell, the
agent of the plaintiff's mine, was thoroughly acquainted
with it, having worked in the mine years before; he soon
became convinced that the bulk of the water came from the
defendant's mine. He found that the water came from the
fourth level. He cleaned out the level, and, on reaching the
point where the drill-hole had been made years before, he
found that the rock had been all blasted away from the
Minnesota side, and that the water was rushing through an
opening from 20 to 25 feet high and 12 feet wide. When
discovered there was a volume of water seven feet wide
flowing from the Minnesota into the National. When the
defendant made its second encroachment at this point does not
clearly appear; according to the defendant's witness
Spargo it was in 1871 or 1872. This witness was an employe of
the defendant, and one of its tributers. He says he saw the
hole from the Minnesota side, and it was then six to eight
feet high, and from four to five feet wide. William George, a
witness for defendant, last saw the hole in 1870 or 1871. It
was then about a foot in diameter. The witness was then
working for the defendant as tributer and captain. Thomas
James was in charge of the mine. He admits that the
defendant's tributers were then mining there. This same
Capt. James has been in charge of the defendant's mine as
agent ever since.
"It
was not denied in the court below, and we presume will not be
in this court, that the defendant committed these several
acts of trespass. But, in proof of the fact, we refer to the
admission of the agent Harris, the evidence that the track of
a tram-road, sollars, and a system of timbering were found
constructed from the fifth level of defendant's mine into
this opening, and the testimony of plaintiff's witnesses
already referred to. Furthermore, it is beyond dispute that
the defendant knowingly and willfully committed these acts of
trespass, and broke down the barrier which the plaintiff had
so carefully left to protect its mine for all future time,
and against all possible dangers.
"About
1870 the defendant concluded to abandon regular
mining, stopped its pumps, and commenced what is known among
miners as robbing the mine. It placed its tributers at work
at the bottom of the mine, took out all the copper ground
that could be found, took out the supports of the roof of the
mine, and allowed it to settle or cave in. This was all done
under the direction of the defendant's agent, James. The
defendant's mine is situated upon a hill or mountain
side. The result was that the surface of the ground became
depressed, and openings were made in it. Defendant's
agent, James, testified to openings of this character on the
surface of the Minnesota, amounting in all to over 500 feet
in length; some were 3 or 4 feet wide. Into these openings
the water from rains and melting snow ran into the
defendant's mine,
and from thence flowed into the plaintiff's mine, through
the opening at its fourth level. But for these openings the
water would have run down the hill-side. As one of
defendant's own witnesses expressed it, 'There has
been a general falling away of the bluff.' There were no
such openings on the surface of the National. In fact, we
everywhere find the plaintiff conducting its mining
operations with due regard to the rights of adjoining owners;
while we find the defendant conducting its operations in the
most reckless disregard of such rights."
The
above is a sufficient statement of the facts for a discussion
of the principal question in the case, viz: Is the
plaintiff's right of action barred by the statute of
limitations?
The
count in the declaration on which the parties went to trial
alleged that the defendant, on March 15, 1882, and on divers
days and times between that day and the commencement of suit,
with force and arms broke down the partition wall between the
mine of the plaintiff and the mine of the defendant, and let
the water from its said mine into the mine of the plaintiff,
and then and there filled the mine of the plaintiff with
water, greatly damaging its timbering, workings, walls, and
machinery, hindered and prevented the plaintiff from carrying
on and transacting its lawful and necessary affairs and
business, caused the plaintiff great damage and expense in
removing water from its mine, etc.
The
defendant pleaded the general issue, with notice that the
statute of limitations would be relied upon. The plaintiff
recovered a large judgment.
1. The time limited for the commencement of suit
for trespass upon lands in this state is two years from the
time the right of action accrues. How.St. � 8714. This action
was commenced in May, 1884, and it is not claimed that
damages for the original trespass can be recovered in it. The
contention of the plaintiff may be succinctly stated as
follows: (1) Had the plaintiff instituted suit within two
years from the original trespass, the recovery would have
been limited to such damages as were the direct and immediate
result of the trespass. The subsequent flowage of water
through the opening was not the direct, immediate, or
necessary result of breaking down the barriers; therefore no
damages could have been recovered therefor in an action so
brought. (2) Two trespasses may be the result of one act. In
other words, one trespass may cause another, and he who
commits the wrongful act in such a case will be responsible
for both trespasses. (3) In this case no action accrued for
the flowage of water into the plaintiff's mine until the
flowage actually took place, but when the flowage occurred as
a result of defendant's wrongful act it was a trespass,
and if it continued from day to day there was a continuous
trespass for which repeated actions might be maintained.
Upon
these positions the plaintiff plants its case, and unless
they are sound in law the recovery cannot be supported. All
right of recovery for the original trespass, which consisted
in breaking through into the plaintiff's mine, was long
since barred, and it is not claimed that there was, from the
time of the first wrong, a continuous trespass which can give
a right of action now. The merely leaving an opening between
the two mines is not the wrong for which suit is brought, but
it is the flowing of water through the opening which is
complained of as a new trespass; the original wrongful act of
the defendant in breaking through being the cause, and the
injurious consequence when it happened, connecting itself
with the cause to complete the right of action.
In
support of its contention that the case before us...
