West Pratt Coal Co. v. Dorman

• Decision Date: 20 May 1909
• Citation: 161 Ala. 389,49 So. 849
• Parties: WEST PRATT COAL CO. v. DORMAN ET AL.
• Court: Alabama Supreme Court

49 So. 849

161 Ala. 389

WEST PRATT COAL CO. v. DORMAN ET AL.

Supreme Court of Alabama

May 20, 1909

Appeal from Circuit Court, Walker County; J. J. Ray, Judge.

Action by N. P. Dorman and others against the West Pratt Coal Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

Bankhead & Bankhead, for appellant.

L. D Gray, for appellees.

SAYRE J.

Appellees recovered judgment against the appellant in an action on the case for damages alleged to have been caused by the appellant (defendant) in mining coal beneath the surface of appellees' (plaintiffs') lot at Horse Creek in such manner that the subjacent support of the same was impaired and the upper soil caused to crack open and settle down. There was evidence tending to show that coal had been mined under the lot by a former owner of the underlying minerals several years before suit brought, and that, both before and after the point of time one year before suit brought, defendant had mined coal there. The settling down of plaintiffs' lot occurred less than one year before the commencement of the suit. The single question raised by the record and argument of counsel is whether the trial court erred in refusing to defendant charges which put forward the proposition that if the coal, the removal of which left the upper soil without proper support, and so caused its subsidence, was removed more than one year before the commencement of the suit, the plaintiffs could not recover.

The plaintiffs owned the surface; the defendant, the underlying minerals. The right to mine is servient to the right of the owner of the surface to have it perpetually sustained in its natural state--no question as to the right to have buildings sustained is involved--by adequate supports. Williams v Gibson, 84 Ala. 228, 4 So. 350, 5 Am. St. Rep. 368. The owner of the upper soil is entitled as of common right to support from subjacent strata, independent of the negligence of the owner of the minerals in working his mine. Humphries v. Brogden, 12 Q. B. 739. So that the charge of negligence to be found in some of the counts neither added to nor detracted from the cause of action stated. Under the evidence it was open, perhaps, to the jury to find that the mining which caused the cracking and settling down of plaintiffs' lot had been done by the defendant more than one year before suit brought. If such was the case, when did the statute of limitations begin to run? In Rountree v. Brantley, 34 Ala. 544, 73 Am. Dec 470, Polly v. McCall, 37 Ala. 20, and Savannah, etc., v. Buford, 106 Ala. 303, 17 So. 395, after recognizing the principle of a class of cases in which parties are allowed to maintain suit before any actual injury is done, for the reason that wherever there is a wrong there must be a remedy, and plaintiff must at least be entitled to nominal damages, and that otherwise the adverse user might ripen into a title by lapse of time before there was any actual damage, it was determined that an interference with the natural flow of water by a structure on the land of an adjoining owner, causing an injurious reflux of water, confers a right of action whenever the injury actually occurs; and in the last-named case it was said: "The roadbed and embankment are permanent and continuous structures; and if their erection had given the plaintiff a cause of action, and then all the damage which could have resulted had resulted, the statute of limitations would have commenced to run from the time of their completion. But if the thing complained of is not necessarily injurious, or is not an invasion of the rights of another, of itself affording no cause of action, then whatever of legal injury may result from it furnishes a cause of action accruing when the injury occurs, and then the statute of limitations commences to run."

These cases went upon the theory that the injuries complained of had causal origin in the maintenance of a nuisance, and it was considered by them that the injurious consequences resulting from the nuisance, rather than the act which produced the nuisance, was the cause of action. "Nuisance, nocumentum, or annoyance, signifies anything that worketh hurt, inconvenience, or damage, * * * and private nuisances, which are the subject of our present consideration, may be defined: Anything done to the hurt or annoyance of the lands, tenements, or hereditaments of another." 3 Black. Com. 216. "The remedies by suit are: (1) By action on the case for damages, in which the party injured shall only recover satisfaction for the injury sustained, but cannot thereby remove the nuisance. Indeed every continuance of a nuisance is held to be a fresh one." Id. 220. "Anything constructed on a person's premises, which of itself, or by its intended use, directly...