Alwine v. Valley Smokeless Coal Co.
Alwine v. Valley Smokeless Coal Co.
Opinion of the Court
Opinion by
This is an action by the surface owner for damages caused by the removal of underlying coal. Plaintiff owned a farm of forty-seven acres in Cambria County, in which defendant owned the C-Prime seam of coal, without the right to let down the surface. The farm was used largely for truck gardening and plaintiff also had greenhouses thereon. Its value was largely enhanced by springs which came out along a ravine, forming a small creek and furnishing a convenient supply of water for irrigation and domestic use. What we will call the north spring was at the north line of the farm and was the one principally involved in this litigation. About 1912 defendant began removing the pillars, which the first mining had left in this'tract, and continued the same to exhaustion. This caused cracks and holes in the surface and the springs to become dry. The spring water was held up by impervious strata over the coal and, as the latter was removed, the strata broke and the water disappeared in the mines.
Defendant owned the same seam of coal in adjoining lands and was engaged in removing pillars therefrom at the same time and its contention is that the latter caused the loss of the plaintiff’s springs, especially the north spring; if so, admittedly no recovery could be had therefor in this suit. The verdict as rendered for plaintiff implied a finding that all the springs were lost by the second mining done in his land; and from judgment entered thereon defendant brought this appeal.
The cause of the loss of a spring is one of fact and here was for the jury. True, the burden was on plaintiff to show such facts as justify a finding that the loss of the spring resulted from the removal of the coal under his land. He met this burden by the opinion of Gardner M. Stoker, an expert mining engineer, also by proving the fact that the spring ceased to flow when the near-by pillars in his land were removed, and by evidence that the dip of the strata was such as to render
A large stream of water called Stony Creek ran along the southerly side of plaintiff’s farm, the waters from which were appropriated by watef companies about 1912; and, as it was brought out by defendant in this trial that plaintiff had submitted claims against such companies for damages, it was not cause for the withdrawal of a juror for his counsel to say to the jury that so far his client had recovered nothing from the water
The assignments of error are overruled and the judgment is affirmed.
Reference
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- Mines and mining — Surface support — Waters—Evidence—Case for jury. 1. In an action to recover damages for the destruction of a spring alleged to have been caused by mining operations, the case is for the jury where plaintiff’s evidence, although contradicted, tends to show that the loss of the spring was caused by the removal of the coal under his land, and not from under adjoining land. Practice, G. P. — Trial—Evidence—Improper remarks of 'counsel —Withdrawal of juror — Appeal—Record. 2. In an action for the destruction of water supply by mining operations, where defendant brings out that plaintiff had submitted claims against water companies for loss of water, it was not ■cause for withdrawal of a juror for plaintiff’s counsel to say to the jury that so far his client had recovered nothing from the water companies. 3. Where an alleged statement of counsel is not brought upon the record and the trial judge has instructed the jury to disregard it, the appellate court cannot say that there was error in the trial judge refusing a request to withdraw a juror.