Tredway v. New River &. Pocahontas Consol. Coal Co

• Decision Date: 14 September 1926
• Docket Number: (No. 5545.)
• Citation: 135 S.E. 253
• Court: West Virginia Supreme Court
• Parties: TREDWAY et al. v. NEW RIVER &. POCAHONTAS CONSOL. COAL CO.

135 S.E. 253

TREDWAY et al.

v.NEW RIVER &. POCAHONTAS CONSOL. COAL CO.

(No. 5545.)

Supreme Court of Appeals of West Virginia.

Sept. 14, 1926.

Rehearing Denied Nov. 12, 1926.

(Syllabus by the Court.)

Error to Circuit Court, Payette County.

Action by Henry Tredway and others against the New River & Pocahontas Consolidated Coal Company. Judgment for plaintiffs, and defendant brings error. Affirmed.

Dillon & Mahan, of Fayetteville, for plaintiff in error.

John L Ryan, of Fayetteville, for defendants in error.

LITZ, P. Suing in trespass on the case, the plaintiff recovered verdict and judgment of $650 against the defendant for its alleged negligent mining and removal of coal underlying a tract of 18 acres of land, the surface of which he owns, causing the sinking or drying up of 2 valuable springs thereon. The defendant assigns as grounds of error to the judgment: (1) The introduction on behalf of plaintiff of alleged illegal evidence; (2) the refusal of the trial court to strike out the evidence of the plaintiff and direct a verdict for the defendant; (3) the argument of counsel for the plaintiff that special pleas filed by the defendant admitted the mining and removal of coal under plaintiff's land; (4) the giving of plaintiff's instruction No. 1; and (5) refusal of defendant's instruction No. 3.

As the defendant did not take any special bills of exception to the rulings of the court on the admission of the alleged improper evidence, nor particularly point them out as grounds of motion for new trial, the first error must be overruled. Proudfoot v. Pocahontas Transportation Co., 100 W. Va. 733, 132 S. E. 746.

Under the second assignment the defendant argues that the evidence is insufficient to show that it had in the operation of its coal mine removed any coal underlying plaintiff's property. It is true, as pointed out, that the fact was not shown by engineers or map of the mine, but it does sufficiently appear from the opinions of practical miners, who had worked in the defendant's mine, and admitted physical facts in evidence. Within 200 or 300 feet of plaintiff's land is a break or rent in the earth several feet in length and width and of unknown depth. The 2 springs of plaintiff, which are shown to the knowledge of witnesses to have flowed continuously for 60 years or more, suddenly dried up (several years ago) about the time of completing operations, by pulling the pillars, in a certain entry of defendant's mine in the region of plaintiff's property....