Petrelli v. West Va.Pittsburgh Coal Co

• Decision Date: 14 September 1920
• Docket Number: (No. 4021.)
• Citation: 104 S.E. 103
• Parties: PETRELLI et al. v. WEST VIRGINIAPITTSBURGH COAL CO.
• Court: West Virginia Supreme Court

104 S.E. 103

PETRELLI et al.

v.WEST VIRGINIAPITTSBURGH COAL CO.

(No. 4021.)

Supreme Court of Appeals of West Virginia.

Sept. 14, 1920.

(Syllabus by the Court.)

Error to Circuit Court, Brooke County.

Action by Pasquale Petrelli and others against the West Virginia-Pittsburgh Coal Company. Judgment for plaintiffs, and defendant brings error. Affirmed.

James F. Cree, of Wellsburg, and J. Bernard Handlan, of Wheeling, for plaintiff in error.

Ramsay & Wilkin, of Wellsburg, and Dio Rogers and Ralph B. Cohen, both of Steuben-ville, Ohio, for defendants in error.

LYNCH, J. Of the two causes of action, according to the averments of the declaration, one is defendant's mining and removal of a material part of the Pittsburgh seam of coal underlying lands jointly owned by plaintiffs, without their knowledge or consent, the other the consequential impairment or destruction of a natural surface issue of water from the land resulting from such operation. Defendant by demurrer challenges the sufficiency of the declaration, but as it seems to be in the form usual in cases of this sort and without any substantial imperfections, and none are pointed out, there is no necessity for analyzing it.

Though named as the second cause of action, we choose rather first to consider and determine the right of plaintiffs to recover for the injury, if any, done the spring, considered in the light of the proof introduced to show the quantum of damage done to it by the unlawful removal of the coal. The spring was a natural flow of sweet water from a hillside on plaintiffs' property, several feet above the top of the vein of coal underlying the tract, and 490 feet from the division line between their land and that owned and operated by defendant. Its existence was testified to clearly and unequivocally by Pasquale Petrelli and John N. Leech, both of whom were well acquainted with it, knew its location, and had drunk of its waters. An attempt was made by witnesses for defendant to question the existence of such a spring at that point, but testimony in support of their contention was weak and inconclusive. The fact of its destruction was not known until late in the year 1916, when Pasquale Petrelli and Leech, the latter employed as an engineer to make a survey for a tramway which plaintiffs contemplated building for use by them in connection with proposed mining operations on their own land, discovered that its flow had ceased. It was this discovery, together with the presence of several places where the surface had subsided, that led to investigation and ultimately to the driving of test entries on plaintiffs' land, from which they ascertained that defendant's operations had crossed the division line and entered their property. Defendant denies that its operations extended so far over the line as to interfere with a spring 490 feet distant from the boundary. But, as will more fully appear in the discussion of the main cause of action asserted by plaintiffs, namely, the removal of their coal, defendant's witnesses admit and its maps show that 12 or 14 rooms and entries have crossed the line for distances ranging from 10 to 90 feet. Moreover, plaintiffs have discovered, as a result of their test entries, rooms even farther removed from the division line and not shown on defendant's maps at all; and By water, a' witness for plaintiffs, formerly an employe of defendant, states that while engaged, sometime during the year 1917, in removing tracks from an entry which the company's maps showed to be on the land of plaintiffs, he could see that the entry extended at least 150 feet farther into their property to a "cave-in, " which obstructed his view and prevented him from ascertaining whether it extended beyond that point. Defendant's removal of the ribs and pillars supporting the roofs of the encroaching entries and rooms, thereby causing them gradually to settle and fill the operations with debris, rendered it exceedingly difficult and unsafe, if not wholly dangerous, to go into them for any purpose and especially for the purpose of measuring the excavations to enable them to estimate the extent of the encroachment. The witness Bywater also testifies that the floor of the old entry where he was engaged at work was covered with water to the depth of about 1 foot, while the roof at that point was dry, strongly indicating that the water had come from some other source than immediately overhead. From evidence such as this, especially in view of the obvious difficulty and danger of entering and tracing the extent of the old entries—a difficulty and danger caused by defendant's acts in entering upon, mining coal from, and drawing pillars in, lands known to belong to others, the jury could properly find that the trespassing operations had extended beyond the points disclosed by defendant's maps and in some manner had interfered with the course of the subterranean stream feeding the spring on plaintiffs' land, and that the resulting subsidence of superincumbent stratas had opened a new course of less resistance for the water to take.

There was little attempt upon the part of plaintiffs to establish the value of the spring so destroyed; in fact, there is only one reference to its value, and that consists of an indefinite statement by Pasquale Petrelli:

"I have a spring that I wouldn't take any kinds of money for. I wouldn't take $3,500 for the spring."

In view of the fact, which will appear more fully later, that the evidence offered upon the issue presented by the first count is amply sufficient to sustain the jury's verdict without regard to the spring, it is unnecessary for us to consider whether this statement, standing alone, would be sufficient to support a verdict for damages upon the count relating to the cessation of the water flow, and probably the jury did disregard it because of the insufficiency of the proof touching the injury done to it, if any. They may have thought it too far removed from the property line to be affected by the trespass.

The more important claim for damages is for the removal of coal underlying that part of plaintiffs' property which adjoins defendant's. As noted already, the fact that the mining operations of the latter had encroached upon their land did not become known to plaintiffs until late in the year 1916, when Pasquale Petrelli and the engineer Leech discovered that the spring which theretofore had existed had ceased to flow. Thereupon plaintiff and the engineer immediately sought admission to the mine at the entrance on defendant's property, but were told that it would be impossible for them to get back as far as the division line or beyond it, because of the drawing of the ribs and pillars supporting the ceilings of the entries and rooms. Because of these barriers, the existence of which were thus confessed, plaintiffs early in 1917 began to...