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.
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,
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 ...