Southwest Missouri Railroad Company v. Morning Hour Mining Company

• Decision Date: 03 May 1909
• Citation: 119 S.W. 982,138 Mo.App. 129
• Parties: SOUTHWEST MISSOURI RAILROAD COMPANY, Respondent, v. MORNING HOUR MINING COMPANY, Appellant
• Court: Kansas Court of Appeals

119 S.W. 982

138 Mo.App. 129

SOUTHWEST MISSOURI RAILROAD COMPANY, Respondent, v. MORNING HOUR MINING COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

May 3, 1909

Appeal from Jasper Circuit Court.--Hon. Hugh Dabbs, Judge.

AFFIRMED.

Judgment affirmed.

Cole Burnett & Williams for appellant.

Where there was no evidence introduced which tends to prove that the defendant intended to continue their mining operations in such a way as to endanger the plaintiff's railway track the plaintiff cannot recover. Railroad v. Brandau, 81 Mo.App. 8.

The court cannot grant an injunction to allay the fear and apprehensions of individuals. They must show the court that the actions against which they ask protection are not only threatened, but will in all probability be committed to their injury. Lester v. City of St. Louis, 169 Mo. 234. Defendant's motion to dismiss plaintiff's bill and dissolve temporary injunction, offered at the close of all the testimony in the case, should be given. There was no evidence showing that defendant, at the time of the institution of the suit, was doing or threatening to do or about to do or in all probability would do any act or thing under plaintiff's right of way that would injure the support to the surface thereof. Owen v. Ford, 49 Mo 436. Under the evidence in this case, plaintiff is not entitled to any relief in equity. All the evidence conclusively shows that the action complained of were past acts and that plaintiff's remedy, if any, would be an action at law for damages. Carlin v. Wolff, 154 Mo 543; Davis v. Hartwig, 195 Mo. 398; Verdin v. City of St. Louis, 131 Mo. 117; 1 High on Injunction (3 Ed.), secs. 18, 23; Beach on Injunctions, secs. 428, 34, 17, 1198.

McReynolds & Halliburton for respondent.

It is the absolute duty of the mine operator to protect the surface of the ground being mined, and it is the absolute right of the surface owner to have his surface supported precisely as it was in its natural state. White on Mines and Mining Remedies, sec. 139; Shearman & Redfield on Negligence (5 Ed.), sec. 716; Haines v. Roberts, 7 El. & Bl. 325; Humphries v. Brogden, 12 Q. V. 739; Harris v. Ryding, 5 Mees. & W. 60; Kistler v. Thompson, 158 Pa. 139, 27 A. 874; Iron Co. v. Baker, 28 N.J.Eq. 77; Consolidated Coal Co. v. Schaefer, 135 Ill. 210; Wilms v. Jess, 94 Ill. 464; Penn v. Taylor, 24 Ill.App. 292; Yandes v. Wright, 66 Ind. 319; Mickle v. Douglas, 75 Iowa 78; Erickson v. Iron Co., 50 Mich. 604; Marvin v. Iron Co., 55 N.Y. 538. If the facts are as alleged in plaintiff's petition we have no doubt it would be entitled to relief by injunction. Burgess v. Kattleman, 41 Mo. 483; Echelkamp v. Schrader, 45 Mo. 505; Weigel v. Walsh, 45 Mo. 560; Lockwood v. Lunsford, 56 Mo. 68; Bank v. Kercheval, 65 Mo. 688. Where the acts complained of will decrease the value of plaintiff's property and diminish the use for which it is intended he is entitled to maintain an injunction against such acts. Glessner v. Brewing Co., 100 Mo. 508. The defendant in this case had caused the plaintiff's surface right to cave or fall in, had been warned not to remove any more dirt, yet persisted in removing dirt that tended to still weaken the surface more; no adequate remedy could be furnished at law. It is on a parity with those cases on account of the continued trespass, where the courts hold that injunction is the proper remedy, actions at law for damages being inadequate. Land Co. v. Manning, 98 Mo.App. 248; Webster v. Cook, 23 Kan. 637; Harber v. Evans, 101 Mo. 661; Jones v. Williams, 139 Mo. 1.

OPINION

ELLISON, J.

This proceeding is a bill of injunction to restrain defendant from operating a lead and zinc mine in Jasper county in a certain manner. The trial court issued a temporary writ which was afterwards made perpetual and defendant has brought the case here.

It appears that defendant is the owner of a mining lease on certain lands and that it was engaged in taking out ore from beneath the surface at a depth of near one hundred and forty feet. That in prosecuting this work it had cars and car tracks in use in the mine; that drifts and rooms were cut out and that pillars were left for the purpose of support of the earth above.

It also appears that plaintiff is an electric railway company operating trains of cars for the carriage of passengers and that the right of way of which it was the owner passed over a part of the mine worked by defendant underneath.

It likewise appears that whatever structures in the way of pillars or other supports of the earth above the mine, gave way, whereby there was an extended falling in of the earth, including large parts of the surface over which plaintiff's tracks were laid on its right of way. This, for a time, caused a cessation of traffic and, as alleged and contended by plaintiff, the mining, as carried on by defendant, jeopardizes the lives of the people it carries in its business in that it threatens to cause, at any unknown time, a further caving in of the earth and letting down of its tracks and cars.

The right of the mine owner to mine underneath the surface of the earth is subordinate to the right of the owner of the surface that it shall be supported in its natural position. The right of the mine owner is on a level with the rights of persons in general and such rights are confined within a natural and just limitation, which is to say that persons must so exercise their rights as not to prevent others from exercising theirs. This principle is said to lie "at the foundation of all systems." [White on Mines and Mining, sec. 212.] So it is said to be now established as a rule of law that "the owner of the surface is entitled to absolute support, not as an easement of right depending on a supposed grant, but as a proprietary right at common law. . . . The right of the surface owner has been likened to that of the owner of an upper story of a house, who holds his tenement with an implied right to support from the owner of the lower story." [Snyder on Mines, sec. 1020.]

And a custom among miners is not allowed to destroy the surface support by removing pillars. Such custom would be void. [Randolph v. Halden, 44 Iowa 327.] In Burgner v. Humphrey, 41 Ohio St. 340, it is said that: "This obligation to protect the superincumbent soil, exists whether there is a conveyance of the surface reserving the minerals, or a grant of the minerals, without a conveyance of the surface. In either case, the presumption arises that the owner of the minerals is not, by removing them wholly or in part, to injure the owner of the soil above. According to the doctrines held by the courts, as summarized by an approved text writer, the right which the surface has to support, is a part of the freehold and not an easement. It is the right independent of the nature of the strata, and the mine owner can only work so far as is consistent with this right, and is liable if he violates it. The highest care and skill in the working of the mine, is no...