Southwest Missouri Ry. Co. v. Big Three Mining Co.

• Decision Date: 03 May 1909
• Citation: 119 S.W. 982,138 Mo. App. 129
• Parties: SOUTHWEST MISSOURI RY. CO. v. BIG THREE MINING CO.
• Court: Missouri Court of Appeals

119 S.W. 982

138 Mo. App. 129

SOUTHWEST MISSOURI RY. CO. v. BIG THREE MINING CO.

Kansas City Court of Appeals. Missouri.

May 3, 1909.

Rehearing Denied June 14, 1909.

1. MINES AND MINERALS (§ 122)—LIABILITIES OF WORKING—SURFACE SOIL.

The right of a mineowner to mine underneath the surface is subordinate to the right of the owner to have it supported in its natural position, which right is a part of the freehold, and the right to mine must be exercised in such a way as not to prevent others from exercising their rights.

2. CUSTOMS AND USAGES (§ 3)—VALIDITY—REMOVAL OF SUPPORT OF SURFACE SOIL.

A custom allowing miners to destroy surface support by removing pillars is void.

3. INJUNCTION (§ 22)—NATURE OF REMEDY.

Injunction will not issue to prevent a thing already accomplished, and the relief in such instances is an action for damages.

4. MINES AND MINERALS (§ 125)—LIABILITIES INCIDENT TO WORKING—INJURIES TO SURFACE—INJUNCTION.

Under Rev. St. 1899, § 3649 (Ann. St. 1906, p. 2055), providing that injunction lies to prevent a threatened irreparable injury to real property, injunction lies to prevent a mineowner from persisting in a mode of mining which endangers the support of the surface, thereby endangering the safety of railroad tracks on the surface.

5. APPEAL AND ERROR (§ 1009)—FINDINGS—CONCLUSIVENESS.

While, in a suit in equity, the appellate court must pass on the evidence and its weight, yet it is influenced by the findings of the trial court rendered on oral and contradictory evidence.

Appeal from Circuit Court, Jasper County; Hugh Dabbs, Judge.

Action by the Southwest Missouri Railway Company against the Big Three Mining Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Cole, Burnett & Williams, for appellant. McReynolds & Halliburton, for respondent.

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; that it was engaged in taking out ore from beneath the surface at a depth of near 140 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 there were 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 on its tracks and cars.

The right of the mineowner 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 mineowner 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 & Mining, § 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, § 1020.

And a custom among miners is not allowed to destroy the surface support by removing pillars. Such custom would be void. Randolph v....