Appeal, No. 236, March T., 1958, from judgment of Court of Common Pleas of Allegheny County, Oct. T., 1953, No. 1323, in case of W. O. Cramer et al. v. Cecil G. Alberts et ux. Judgment affirmed.
Harry Alan Sherman, for appellants.
John A. Metz, Jr., with him Robert Palkovitz, Joseph B. Mitinger, and Metz, Cook, Hanna & Kelly, for appellees.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Mcbride, JJ.
Judgment affirmed on the following excerpts from the opinion of Judge JOHN J. KENNEDY:
"The above captioned proceeding is a trespass quare clausum fregit suit in which the plaintiffs claimed their coal mine became contaminated and unworkable after the defendants caused sanitary sewers to empty into an air ventilating shaft which led from the surface above into the coal mine. The jury returned a verdict in favor of the plaintiffs in the sum of $15,000. Defendants, by counsel, have filed motions for a new trial and also for judgment n.o.v. for the wife defendant. It is the disposition of these motions that is now before us.
"In January 1947, the plaintiffs (father and son) purchased and received a deed for all of the unmined coal under a tract of land located in Mifflin Boro., Allegheny County. The area, described in the deed, was about 117 acres and granted to the plaintiffs certain surface entry and other mining rights. Nearly a half century earlier the breast coal of the Pittsburgh bituminous vein only had been removed from this mine. It was estimated, after measurements made by the plaintiffs, and an earlier survey made by a civil and mining engineer, that more than 50% of merchantable coal had been allowed to remain in the mine by former owners. This coal consisted of 24 inches of floor coal and numerous pillars, ribs and stumps, most of which, by careful mining, could be removed. It was estimated that this mineable coal was located in a 70 acre area. In 1948 one Andrew DeBaldo purchased the surface
overlying the coal mine. Sometime later he sold part of this surface to the defendants. The defendants erected on this tract, sometime before 1953, forty-five dwelling houses. In 1953, on a contiguous tract of land, the defendants caused forty-two dwelling houses to be erected. There was an air shaft cylindrical in shape and 8 to 10 feet in diameter, and stone or brick lined, that ran from the roof of an entry in the mine up to the surface with a four foot wall or coping above the surface to keep out surface drainage water and was located on surface land still owned by DeBaldo in 1952 and early in 1953. The plaintiffs, under the mining rights in their deed, and also under an agreement with DeBaldo, were entitled to have this air shaft kept open and to be used solely for ventilating purposes in the coal mine below. Sometime in March 1953, the plaintiffs had removed all the merchantable coal through the entry into the mine referred to as the Smith Lane entry. In the mining of pillars, ribs, stumps and floor coal, the procedure is to mine and remove the coal from a substantial distance in the mine from the entry, and then work towards the entry. The plaintiffs had removed coal through this entry above, an area of about six acres. It was decided to close up this entry as required by the State Mining laws and then to locate a new convenient entry into another part of the mine. In seeking such an entry, the younger plaintiff, Calvin Cramer, came to the outlet of the air shaft. It was located in rugged terrain with considerable growth of scrub trees, bushes and weeds. He observed that the wall of the shaft above the surface had been removed and that there was an 8 inch sewer pipe carrying sanitary sewage from one of the developments of the defendants into the mine shaft and flowing into the mine.
"These plaintiffs have travelled a rough road before finally having their case submitted to a jury for a decision.
Through their attorney they first brought a bill in equity at the above number and term seeking to enjoin the defendants from disposing of the sanitary sewage from defendants' first dwelling house development and also for damages for contaminating and making unusable the mine until the contamination would be stopped and the filth cleared out. It is significant, although not part of the record in this proceeding, that the defendants, in their answer to the complaint in equity, did not deny they caused the sewer line to drain into an air shaft leading into plaintiffs' coal mine. They only denied the contamination did any damage because all mineable coal had been removed from the area and that they had a legal right to drain sewage into the shaft. At the hearing, the trial chancellor was of the opinion that in order for the plaintiffs to prevail in their prayer for injunctive relief that the owners of the dwelling houses ...