Pulaski Anthracite Coal Co v. Gibboney Sand Bar Co.&dagger

• Decision Date: 18 November 1909
• Citation: 110 Va. 444,66 S.E. 73
• Court: Virginia Supreme Court
• Parties: PULASKI ANTHRACITE COAL CO. v. GIBBONEY SAND BAR CO.&dagger

(110 Va. 444)

66 S.E. 73

PULASKI ANTHRACITE COAL CO.

v.GIBBONEY SAND BAR CO.†

Supreme Court of Appeals of Virginia.

Nov.18, 1909.

Error to Circuit Court, Pulaski County.

Action by the Gibboney Sand Bar Company against the Pulaski Anthracite Coal Company. Judgment for plaintiff. Defendant brings error. Reversed and remanded for new trial.

Phlegar & Powell and Longley & Jordan, for plaintiff in error.

W. B. Kegley and John L. Draper, for defendant in error.

CARDWELL, J. The defendant in error brought this action against plaintiff in error, and recovered a verdict and judgment for $1,000 damages, alleged to have been sustained by the plaintiff by reason of the deposit of slack, slate, culm, and mine refuse in and along the banks of New river from the defendant's coal mine, which slack, etc., it is alleged was carried down the river and thrown upon the sand bar of the plaintiff situated on the east side of New river 3 1/2 miles below the mine of the defendant.

The declaration claimed that the plaintiff owned the said sand bar; that it contained a large quantity of valuable marketable sand and gravel; that prior to and until January 26, 1906, it was selling therefrom large quantities of the sand and gravel, for which it was deriving a certain profit per cubic yard; and that the defendant, owning and operating its coal mine some 3 1/2 miles above said sand bar, had placed prior to January. 1906, a large quantity of slack, slate, culm, and mine refuse in the river and along its bank, so that the same was carried down the river, some by the ordinary tides, and more by high water, and thrown upon said sand bar, and became mixed with the sand and gravel thereon, so as to render the sand worthless, etc.

At the trial of the cause, upon the issue joined on the plea of not guilty, it was developed that the land of which the sand bar was a part was conveyed to William Gibboney by a deed dated the 21st day of September, 1905, in consideration of $4,000, which was furnished him by one Frank Bell and others, who afterwards formed the plaintiff company, incorporated; that William Gibboney at once began shipping sand in his own name, but at the expense and for the benefit of the plaintiff corporation, and continued to do so until January 27, 1906, when he conveyed the land, including the sand bar, to this corporation, chartered the 4th day of January, 1906; that, after such conveyance, the business of selling and shipping sand and gravel for commercial purposes was carried on in the corporation's name, William Gibboney being in charge, and all the accounts of the transactions theretofore had by William Gibboney acting for the prospective corporation were carried over to the accounts of the latter; that in January, 1906, and repeatedly thereafter, there were floods in New river which covered the sand bar, and each flood left more coal and other injurious properties in the sand than had previously been there; that the conformation of the river bed was such as tended to carry heavy matter from the western to the eastern side of the river; that the defendant and its predecessor in title to the coal mines now owned by it had placed considerable quantities of culm, slack, and mine refuse along and in the river, much of which had been carried away by high water; that coal mines have been operated for many years, one almost directly opposite defendant's mine, and but a few hundred feer from the river bank, and many others on Tom's creek and Strouble's creek and their tributaries, on the east side of the river, and on Back creek on the west side of the river, all emptying into New river above defendant's mine; that the culm, slack, and mine refuse from these mines were placed or wash-ed into said streams and down them into New river; and that in 1904 the Virginia Anthracite Coal Company took charge of some mines on Strouble's creek and had opened and continued the largest mining operations of the 25 in all, including the defendant's mine, in that section, and that much of its culm, slack, and mine refuse had gone into the creek and been washed down into New river.

There were several exceptions to rulings at the trial on the introduction of evidence, but they are not relied on here, and only two questions are presented for decision, viz.: (1) Whether or not the plaintiff could recover in this action for damages done to the sand bar prior to the time it acquired the legal title thereto; and (2) whether, if the defendant's coal and other refuse from its mine and that of the other coal mines each contributed to the injury the plaintiff sues for, the defendant is liable only for such portion of the damage as its coal and other mine refuse did to the sand bar, or for all the damage done by the deposit In and upon the sand bar of coal and other refuse from all the mines which may have contributed to the injury.

With respect to the first question, we deem it only necessary to say that the evidence tended to prove that the damage to the sand bar prior to the acquisition of the legal title by the plaintiff was but a very small part of the injury complained of, and that whatever substantial injury the plaintiff sustained was done after it acquired the legal title to the sand bar. Therefore the defendant was but slightly, if at all, prejudiced by the rulings of the court on the introduction of evidence as to damages to the sand bar prior to that date.

It is very clear that the trial court in instructing the jury proceeded upon the theory that the...