March 13, 1956
SOLLEY (ET AL., APPELLANT).
Appeal, No. 219, Jan. T., 1955, from judgment of Court of Common Pleas of Clearfield County, Nov. T., 1953, No. 599, in case of Commonwealth of Pennsylvania v. Roscoe F. Solley et al. Judgment affirmed.
F. Cortez Bell, with him Walter M. Swoope, John B. Gates and Bell, Silberblatt & Swoope, for appellants.
Harry F. Stambaugh, Special Counsel, with him Phil H. Lewis and Joseph L Donnelly, Deputies Attorney General, W. Albert Ramey, Special Counsel, and Herbert B. Cohen, Attorney General, for appellee.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
[ 384 Pa. Page 406]
OPINION BY MR. JUSTICE CHIDSEY
This is an appeal by Anthony Hile, Hubert H. Hile, Mary Katherine Hile and Rebecca J. Hile Morley, defendants in one group hereinafter called the Hiles, and defendant Cresson Hills, Inc., a Pennsylvania corporation, from a judgment entered on a jury verdict in favor of the Commonwealth of Pennsylvania against all of the above named defendants and defendants Roscoe F. Solley and D. G. Arnold*fn1 holding them jointly and severally liable in the amount of $3,792.52, representing cost to the Commonwealth of repairing a portion of a State highway which had subsided due to a strip mining operation.
The Hiles, who are the owners of a parcel of land in Ferguson Township, Clearfield County, through which runs State Highway Route 857, on March 4, 1952 entered into a "lease" agreement with J. H. Lasher granting to the latter an exclusive right to strip mine the flint clay on the land, which "lease" was assigned by J. H. Lasher to defendant Cresson Hills, Inc. J. H. Lasher is the president of Cresson Hills, Inc. and his son, Humes T. Lasher, is the secretary and treasurer. Cresson Hills, Inc. contracted with defendants Solley and Arnold to remove the overburden and actually mine the clay. At the point where Solley and Arnold began to remove the overburden on the Hiles' land,
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there is a steep hill and the highway cuts across the side of this hill. Operating on the lower side of the highway, Solley and Arnold pushed the strata over the clay down the hill and away from the highway by means of bulldozers. After a few days' work, cracks appeared in the highway and it subsided about two feet. The berm and guard rail subsided also and slid partway down the hill. The stripping was stopped before any clay had been removed from the tract.
It is not disputed that the cause of the damage to the highway was the removal of the strata over the clay. The Commonwealth gave written notice to the Hiles, Humes T. Lasher, and Solley and Arnold, in accordance with the Act of June 1, 1945, P.L. 1242, 36 PS § 670-419, known as and hereinafter referred to as the State Highway Law, to repair the highway, and no repairs being made, the Highway Department restored the highway to its original condition at a labor, equipment and material cost of $3,792.52, the amount of the jury's verdict.
The doctrine of lateral support is a very old one. It is the right to have land in its natural state supported by adjoining land. It is well settled that in so far as individual owners of land are concerned, the right ordinarily extends only to land in its natural state, not to artificial improvements erected thereon. "... Before the right can be extended to buildings or other improvements imposed thereon, negligence, malice or wantonness must be shown ... with the exception of those instances where the building is erected on the premises before a part of the land contiguous thereto is sold, as in the case of Durante v. Alba, 266 Pa. 444, 447 ...": Pollock v. Pittsburgh, Bessemer & Lake Erie R. R. Co., 275 Pa. 467, 470, 119 A. 547. The right of the Commonwealth to lateral and subjacent support of the public highways is superior to that of an ordinary
[ 384 Pa. Page 408]
land owner. An abutting land owner is charged with the duty of furnishing vertical and lateral support to a public highway in its improved condition: Scranton v. Peoples Coal Company, 256 Pa. 332, 100 A. 818; Breisch et al. v. Locust Mountain Coal Co. et al., 267 Pa. 546, 110 A. 242; Pollock v. Pittsburgh, Bessemer & Lake Erie R. R. Co., supra. The Act of June 25, 1937, P. L. 2275 was repealed by the State Highway Law of 1945, supra, but Section 419 of the latter reenacted practically verbatim Sections 1, 2, 3, 4, 5 and 6 of the earlier Act. This section provides that whenever a State highway subsides by reason of failure of lateral support, the person or corporation then owning the subjacent or adjacent strata must restore the highway to its original condition upon notice from the Department of Highways to do so. If the owner fails to restore the highway, the subsidence is declared a public nuisance which can be abated by appropriate proceedings in law or equity. Section 419 of the Act then goes on to say: "If such owner fails or refuses to provide for the restoration and replacement of the highway, then the department may proceed with such restoration and replacement, and the underlying owners of the subjacent or adjacent strata, both at the time the vertical or lateral support was removed and at the time the subsidence occurred, and their respective assignees, lessees or grantees shall be jointly and severally liable for the cost of restoration.".
In the absence of this legislation, there is no doubt that the Hiles would not be liable to the plaintiff. The Hiles did not themselves remove the overburden causing the subsidence, nor did they exercise any control or supervision whatsoever over defendants Solley and Arnold who actually did the stripping. It was the settled law of this Commonwealth that the lessor of a mine is not responsible for mining done by his lessee
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which results in the withdrawal of lateral or subjacent support to adjoining land: Offerman v. Starr, 2 Pa. 394; S. W. Hill et al. v. Ario Pardee et al., 143 Pa. 98, 22 A. 815; Shenandoah Borough v. Philadelphia, 367 Pa. 180, 79 A.2d 433. It was also consistently held in cases involving withdrawal of lateral or subjacent support, that the owner or possessor of the supporting land was not liable if he was not the actor in the withdrawal: Noonan v. Pardee, 200 Pa. 474, 50 A. 255; and this was true even in cases involving failure of lateral support to a public highway: Commonwealth v. Panhandle Mining Company, 315 Pa. 16, 172 A. 106. In the Panhandle Mining Company case, the Commonwealth sued to recover the cost of repairing a portion of a State highway which subsided due to mining operations performed by defendant's predecessor in title. We held the defendant not liable, quoting, at p. 19, the following rule from the lower court's opinion: "'... Before the Commonwealth could recover in a case of this kind, it must aver and prove that the owner whose premises abutted on the highway has actually mined the coal that caused the damage complained of, and that such mining was the proximate cause of the subsidence of the surface...'". However, subsequent legislation now before us for consideration changed the law as above pronounced.
In determining the application of Section 419 of the State Highway Law, now controlling, we must consider the effect of the lease agreement between the Hiles and J. H. Lasher, which agreement was subsequently assigned to defendant Cresson Hills, Inc. This agreement provided that the Hiles, as lessor did "... hereby let, lease and demise unto the Lessee the exclusive right and privilege of mining and removing all of the minable and merchantable Flint Clay that can be mined and removed by the strip mine method at reasonable cost and
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safety ... Together with all the mining rights, the exercise of which are necessary and proper to the mining and removing of the said Flint Clay by the strip mine method, including the right to strip the surface, pile overburden from this and other lands upon the leased premises, ...". The lease was for a term of one year with an option on the part of the lessee to renew for a like term. It cannot be seriously contested that this lease agreement was an actual sale of the clay, a grant of interest in the land itself, so that the lessee and consequently Cresson Hills, Inc., became the real owner of the underlying clay.*fn2 The Hiles, however, still retained their title and interest in the strata over the clay, and also the earth underneath.