Ohio Collieries Co. v. Cocke; National Coal Co. Goffee
| Decision Date | 13 March 1923 |
| Docket Number | 17572,17408 |
| Citation | 140 N.E. 356,107 Ohio St. 238 |
| Parties | The Ohio Collieries Co. v. Cocke; The National Coal Co. v. Goffee Et Al. |
| Court | Ohio Supreme Court |
Mines and mining - Subjacent support of surface - Waiver by sale of underlying coal - Measure of damages - Market value, loss of well and injury to buildings - Evidence and burden of proof - Subsidence of surface after mine supports removed.
1. The right of subjacent support of the surface in its natural state is a right the owner has regardless of whether mining operations thereunder were conducted in a negligent manner or not.
2. A sale of all the coal under a tract of land is not, in terms or by necessary implication, a release of the right to surface support, but such waiver must appear by express grant, or the instrument conveying the estate clearly import such release.
3. In an action against a coal-mining company to recover damages caused by removal of subjacent support, with resulting failure of percolating water supplying a spring or well, the loss of such spring or well may be considered as an element going to make up the value of the tract of land as a whole and the damages are to be measured by the difference between the market value of the land before and after the injury subject to the qualifications hereinafter stated.
4. Where the surface of land belongs to one and the coal thereunder to another, the owner of the surface has a right to have his buildings maintained upon the natural surface of the soil, and, if the owner of the coal in mining operations removes the subjacent support, whereby such natural surface subsides, and injury results to such buildings, such injury may be shown as an element of damages to the entire tract under the measure of damages herein set forth. The act of the owner of the coal in removing the subjacent support from the soil is prima facie the cause of the subsequent subsidence of the soil, and the burden is upon such party so mining the coal to show that the surface would not have subsided but for the additional weight of the buildings erected subsequent to the sale or leasing of the coal.
5. In an action for damages by reason of loss of subjacent support caused by the removal of pillars, ribs, and stumps in a coal mine, the owner of the surface is entitled to recover, if the injury is of a permanent or irreparable nature, the difference in the market value of the property as a whole including improvements thereon, before and after the injury. If restoration can be made, the measure of damages is the reasonable cost of restoration, plus the reasonable value of the loss of the use of the property between the time of the injury and the restoration, unless such cost of restoration exceeds the difference in the market value of the property as a whole before and after the injury, in which case the difference in the market value before and after the injury becomes the measure.
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Owing to the similarity of the law questions presented in these two cases, Ohio Collieries Co. v. Cocke and National Coal Co. v. Goffee, the same will be considered together.
In the Ohio Collieries case the plaintiff brought her action for damages against the Collieries Company because of defendant's improper removal of pillars, ribs, stumps, and supports of coal from under her lands, it being claimed that the earth had cracked in deep fissures; that her barn had become twisted and unsafe for live stock; that trees in her orchard leaned from the cave-in of her lands; that her house and residence had tilted; that doors and windows became cramped, refusing to open and close that the plaster on the walls had cracked and parted; that the cellar walls had given away; that the chimneys had become unsafe for fires, and that the slate roof had parted so that it let in rain. For these damages the plaintiff sought to recover $5,000.
The answer of the defendant admits its corporate character, but specifically denies that it wantonly, wrongfully, improperly, or negligently mined and removed the pillars, ribs, and supports from under the premises of plaintiff, but claims that all its mining operations were conducted in the usual and ordinary way. The defendant specifically denies that it caused the disappearance of any surface waters flowing from other lands to and upon the lands of the plaintiff, and denies that by its mining operations it had in any manner damaged the lands of the plaintiff for farming purposes, by interference with water supply. The defendant further denies each and every allegation of the amended petition not specifically denied or admitted to be true.
Upon the issues thus made the parties went to trial, and a verdict was returned in the court of common pleas for the plaintiff in the sum of $2,595.83. The Court of Appeals in a hearing on error entered a remittitur in the sum of $795.83, which left the recovery of the plaintiff at $1,800. To reverse this judgment action is prosecuted here.
Messrs. Meyer & Crossan, for plaintiff in error.
Mr. J. E. Powell and Mr. T. M. Potter, for defendant in error.
In case No. 17408, National Coal Company v. Goffee, the plaintiffs below, John and Mary Goffee, were the owners of 20 acres of land, and the coal company was the owner of the coal lying underneath the premises. The coal company was proceeding to mine and remove its coal, when cracks and crevices appeared upon the surface of the land, and some subsidence resulted. The dwelling house settled, and became out of plumb, and a well about 13 or 14 feet deep went dry. While the title of both parties goes back to a common grantor, there is nothing to show any express waiver of the right to enjoy the surface in its natural condition. Of the 20 acres owned by plaintiffs pillars were removed from under about 1 1/2 acres. Upon the land in question there were a dwelling house, a barn, and outbuildings used in connection with cultivating and tilling the land. The buildings were erected and the well dug after the sale of the coal.
The coal company admitted its corporate character; that plaintiffs owned the property in question; that it owned the coal, including the right to mine and remove the same at will; that the buildings on the tract were erected and the well dug after the coal was sold; that plaintiffs purchased the property with knowledge of such condition, and that, by the erecting of the buildings, additional weight was placed on the surface, thereby causing or contributing to whatever damages occurred by the removal of the coal.
In the reply the plaintiffs denied that the erection of the buildings caused or contributed to the subsidence of the surface.
Upon the issues thus made up the parties went to trial, and a general verdict of $369.25 was returned in favor of the plaintiffs, together with the following special findings of fact:
A motion for a new trial was overruled, and judgment entered upon the verdict. Error was prosecuted to the Court of Appeals, where judgment of the common pleas court was affirmed, and this proceeding is brought in this court to reverse the judgment of the Court of Appeals.
Mr. Charles S. Sheppard, for plaintiff in error.
Mr. B. F. Enos, for defendants in error.
In the case of Ohio Collieries Company v. Elizabeth Cocke the errors complained of in this record are six in number:
As to the first ground of alleged error it is undoubtedly the rule of law in Ohio that it is the duty of the trial judge to separately and definitely state to the jury the issues of fact made in the pleadings, accompanied by such instructions as to each issue as the nature of the case may require. B. & O. Rd. Co. v. Lockwood, 72 Ohio St 586, 74 N. E., 1071.
An examination of this charge discloses that the trial court substantially met this requirement. There were a number of minor issues between these parties, to-wit, the ownership of the land by the plaintiff, which was not more than formally denied by permitted that it mined the coal from under plaintiff's premises, but claimed to have conducted its mining operations in the usual and ordinary way and by the usual and ordinary methods employed in such mining. The paramount issues of the case were whether or not the subsidence of plaintiff's land and the incidental damages thereto had been occasioned by the manner in which the defendant conducted its operations, and, if such injury had been occasioned by the manner in which the...
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