Woodward Iron Co. v. Mumpower

• Decision Date: 19 December 1946
• Docket Number: 6 Div. 436.
• Parties: WOODWARD IRON CO. v. MUMPOWER.
• Court: Alabama Supreme Court

28 So.2d 625

248 Ala. 502

WOODWARD IRON CO. v. MUMPOWER.

6 Div. 436.

Supreme Court of Alabama

December 19, 1946

Rehearing Denied Jan. 16, 1947.

Dryer & Dryer, of Birmingham, for appellant.

Ross Ross & Ross, of Bessemer, for appellee.

GARDNER, Chief Justice.

Plaintiff B. H. Mumpower, was the owner in fee simple of the surface rights of a tract of land consisting of a fraction over sixteen acres in Jefferson County, Alabama, upon which he conducted a dairy with about 80 cows. The defendant, Woodward Iron Company, owned the mineral rights to the property, and has mined coal thereunder, the general location being known as the 'Mulga Mine.'

Mumpower purchased this property in 1927 for the sum of $3282, and at a time when the land was without improvements. It had upon it a good spring from which there flowed through much of the property a branch, all of which lent itself to the dairy business, furnishing pasturage and water for the cows. Plaintiff immediately began construction of improvements consisting of a barn with concrete walls some 3 feet in height around the sides, and with a cement floor with drains and stalls for 40 cows, and troughs and walkways on the floor. He, also, constructed a milk house; a hay house; a five-room dwelling which was weatherboarded, ceiled and papered, with a composition roof and two porches; a four-room house, and another smaller house with three rooms. These improvements were many times painted and the underpinnings and pillars were of brick. Plaintiff drilled a well on the property, referred to as well No. 1, 85 feet in depth, operated by an electric pump and, indeed, in all his improvements electricity was installed.

Plaintiff's testimony is to the effect that in September, 1941, his well referred to as well No. 1, went dry over night, although previously it had furnished an ample supply of water; and that during the previous summer numerous breaks had appeared in the surface of his land. He, also, stated that he had heard blastings or explosions that appeared to be under or near his property sufficient to shake the glass in the buildings. His testimony is further to the effect that in December, 1943, the spring went dry, and that it now furnishes no water of any consequence. Within a month after well No. 1 went dry another well was drilled, with an electric pump installed therein; the well being drilled at a place designated by the agent for defendant, the cost therefor being paid by the defendant. Well No. 2 at first furnished an ample supply of water, but failed in December, 1943, when the spring and branch leading therefrom also went dry. The well would have water sufficient for dairy purposes only when there was a hard rain; and the plaintiff's evidence tends to show that the spring was only a mudhole after this time. There were times when there was some water in the well, and at other times it furnished no water at all. Well No. 2 was about 100 feet from the spring. There were cracks in the surface for three or four years which had been advancing toward the property of plaintiff. For one year prior to the filing of this suit on November 22, 1944, witness Earley saw cracks on plaintiff's land from one inch to one and one-half feet in width. The witness Hogan saw cracks twelve inches wide back of plaintiff's barn some time prior to Christmas, 1944, about 150 feet from this last drilled well. He, also, saw numerous breaks in the land. Witness Williams testified there were breaks in the land about 100 feet in length after well No. 2 failed; that there were breaks around the lower end of the barn, which was 25 feet from the well, after well No. 2 failed. These breaks were observed in 1943 and 1944. Some of the testimony indicated that there were surface breaks around the spring and, indeed, in numerous places over the sixteen acre tract. We may add that in 1942 defendant had its employees to fill in a number of breaks in the surface of plaintiff's land. There was evidence tending to show a break in the concrete barn after December, 1943, a slight sinking at the west end, with the break extending up the concrete wall from the ground. After this date the doors in the house occupied by the witness Williams sagged and would not open and close, and the windows worked only a part of the way up. Plaintiff testified that his barn floor caved and dropped, and that he built the ground up by filling in on several occasions; that the cement came loose at one corner of the milk house in December, 1943, and that he had to have the dwelling houses on his land straightened up, pillars put under them, that they 'swagged,' necessitating raising the floors.

After the failure of well No. 2 plaintiff applied to the land agent of the defendant to drill him a third well, but this request was declined. The nearest commercial water was some eight miles away, and plaintiff was forced to haul water to his dairy two or three days a week, 300 gallons at a time, from December 5, 1943, to July 1, 1945, the water supply of his well being about the same, if not worse.

He sanitary milk inspector for Jefferson County informed plaintiff that he would either have to obtain an adequate supply of water or discontinue the distribution of milk. Plaintiff's permit expired June 30, 1945, and its renewal was declined on account of the inadequacy of water. He quit the dairy business on July 1, 1945, having previously sold his land on August 16, 1944, for $4,500., and leased the property from the purchaser until he finally had to abandon the business July 1, 1945. The property is not now used for dairy purposes, though there is evidence tending to show well No. 2 furnishes water enough for the tenants of the dwellings on the place.

Plaintiff gives an itemized statement of the cost of the improvements, all of which tends to show that he had invested in the property fully $15,000. A disinterested real estate agent in that vicinity stated that in his judgment the property with adequate water supply was worth $15,000. There is ample proof to show that without adequate water supply the valuation was not in excess of $4,500. or $5,000.

The jury returned a verdict in favor of plaintiff in the sum of $10,000. and from the judgment following the defendant prosecuted this appeal.

Though the record is somewhat voluminous and there are 109 assignments of error, yet, reduced to the last analysis, there are in the brief for appellant few questions presented for consideration here.

The law of the case is well understood and needs no repetition. The principles were stated in Woodward Iron Co. v. Earley, 247 Ala. 556, 25 So.2d 267, and Republic Steel Corp. v. Stracner, 246 Ala. 620, 21 So.2d 690. The Earley case bears much resemblance as to the facts to the case here involved, plaintiff's property adjoining that of Earley, the road being the line. There is, however, one distinction. In the Earley case there was shown no damage to the land surface. Here, the jury could well infer such damage not only to the land surface, but to the buildings located on the property. There is ample proof to show damage to the barn and to the houses. For the mining operations under plaintiff's land resulting in damages of this character liability is absolute, regardless of the question of exercise of due care by the miner. And, as to the loss of water from the wells and spring, we think it clear enough a jury question was presented as to whether or not there was negligence in the mining operations in such a manner as that it should have been anticipated plaintiff might suffer injury therefrom, and that the resulting damages were the proximate result thereof.

We have not only carefully read the proof in the record, but examined the maps offered by the defendant. Map marked Exhibit 'C' gives a clear blueprint outline of plaintiff's property and of defendant's mining operations. Just under that part of the property of plaintiff where the wells, barns and spring were located the defendant in its mining had left what appears to be substantial pillars of coal. But to the west of this property, and 300 feet away they had done what is called a 'robbing operation,' that is, gone back and taken the remaining coal which constituted pillars and support for the roof so as to get all the available coal. In this area quite a large amount of coal has been removed in this 'robbing operation.' Defendant's superintendant admits that in taking the pillars of coal, leaving nothing in their place, it is expected that the roof will cave in. The jury was held justified in concluding from the proof that the numerous cracks found in the surface of plaintiff's land emanated from this 'robbed' area, and that though the proof may show that this was done as far back as 1940 or 1941, yet, it often takes time for such an...