Republic Iron & Steel Co. v. Barter

• Decision Date: 22 November 1928
• Docket Number: 6 Div. 101
• Citation: 118 So. 749,218 Ala. 369
• Court: Alabama Supreme Court
• Parties: REPUBLIC IRON & STEEL CO. v. BARTER.

118 So. 749

218 Ala. 369

REPUBLIC IRON & STEEL CO. v. BARTER.

6 Div. 101

Supreme Court of Alabama

November 22, 1928

Appeal from Circuit Court, Jefferson County; Romaine Boyd, Judge.

Action by Elizabeth Barter against the Republic Iron & Steel Company. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals under Code 1923, § 7326 Affirmed.

Percy Benners & Burr, of Birmingham, for appellant.

Drennen & Burns, of Birmingham, for appellee.

BROWN J.

This is an action of trespass on the case by the appellee against appellant, to recover damages to her estate occasioned by subsidence of the surface resulting from destroying the subjacent supports in conducting mining operations.

The evidence is without dispute, except as to the quantum of the damage suffered, and for the purpose now in hand may be stated to be: That the plaintiff is the owner of the surface and the defendant is the owner of the mineral rights thereunder, with the right to mine and remove the mineral, to use necessary water and timber for mining purposes and for building in connection therewith, and to construct and maintain railroads and tram roads necessary for the mining and transportation of such minerals. The defendant in the past opened a mine under the plaintiff's property, and had mined the coal therefrom, leaving pillars and stumps sufficient for subjacent support of the surface, but for several years past had not operated the mine.

On September 29, 1919, the defendant leased to one W.S Blackwell "the right to the extent of the Company's interest therein to mine the Pratt coal which is left in pillars and stumps in the workings and outcrop barriers" on the property in question and providing in the lease:

That the "lessee is to secure from all surface owners written releases relieving the Company from damage claims as a result of mining operation breaking the surface, or cutting of timber, etc., on any land he undermines, such releases to be turned over to the Company." That "the Lessee shall have full charge of and be responsible in every sense for his operation. He shall direct his mining operations with a view to getting all coal practical to be removed from pillars and stumps and use every precaution to protect the Company's properties and equipment furnished him."

The purpose of the lease, as it states on its face, "is to have the lessee to furnish the domestic coal requirements of the Company's employees at Republic," and "for all coal acceptable to the Company furnished on domestic orders the Company agrees to pay the lessor (lessee) the sum of $3.00 per ton. For all coal acceptable to the Company" (other than domestic orders) delivered at designated points, "the company agrees to pay the Lessee $2.30 per ton on the Company's tipple weights," and "for all coal mined and delivered as domestic coal or otherwise, the Lessee agrees to pay the Company a royalty of ten (10¢) cents per ton, such royalty sums to be deducted from balance due and payable to Lessee."

The lease also provides that--

"The lessee shall save the Company harmless against any *** and pay any claims of any owners of the surface of the land in which the mining is prosecuted growing out of cracking or subsidence of the surface *** and until such claims are satisfied the Company may withhold payments of sums otherwise due by it to the lessee."

The evidence further shows that Blackwell, operating under this lease, confined his operation to robbing the pillars. Blackwell testified:

The subsidence of the surface "was caused to fall in by taking the coal from under it. The coal was taken out and the rock was not sufficient for the property to hold it. *** The taking out of the coal was covered by my contract. My contract did not specify any particular part of coal to take out. I could rob all of it. As a result of my mining this surface fell in. *** I was just robbing blocks of coal that had been left by the Company. *** All the portion I mined was pillars. *** This surface fell in right there. It was caused by our operations. *** When I took out the pillars it didn't leave sufficient support for the surface."

Appellant's contention on the trial and now is that, on the case as presented, Blackwell, the lessee, and not the lessor, is liable for the damage suffered by the plaintiff.

It may be conceded, for the purpose in hand, that as a general rule, where the lease contemplates ordinary mining operations, the lessee and not the lessor is liable for damages resulting from subsidence. Such is the effect of a dictum in Alabama Clay Products Co. v. Black, 215 Ala. 170, 110 So. 151, following a like holding, also dictum, in Kistler v. Thompson, 158 Pa. 139, 27 A. 874; 68 L.R.A. note 695; and as was held in Offerman v. Starr, 2 Pa. 394, 44 Am.Dec. 211.

Yet where, as here, the lease contemplates and...