Appeal, No. 129, March T., 1963, from judgment of Court of Common Pleas of Washington County, May T., 1959, No. 255, in case of Mike Sustrik and Katie Sustrik, his wife, v. Jones & Laughlin Steel Corporation. Judgment affirmed; reargument refused February 13, 1964.
Paul A. Simmons, with him Tempest & Simmons, for appellants.
H. Gilmore Schmidt, with him Schmidt & Allison, for appellee.
Before Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.
OPINION BY MR. JUSTICE EAGEN
This is an action of trespass, in the nature of quare clausum fregit wherein the lower court entered a compulsory non-suit. Plaintiffs appeal.
The plaintiffs are the owners by the entireties of a tract of coal-bearing land in Washington County, Pennsylvania. The defendant-corporation is the owner of adjoining lands upon which is conducted a coal mining operation.
The plaintiffs charge the defendant with and seek recovery of damages, for the unlawful removal of a quantity of coal from underneath the surface of their land; in causing damage to buildings thereon due to a subsidence allegedly resulting from the removal of the coal, and, also for an unlawful trespass consisting of the installation of an underground sewer line which drains water from the defendant's mine across plaintiffs' property to a nearby creek. The present action was begun on June 12, 1959.
It appears that the plaintiffs instituted a similar action in February 1957, wherein they sought the recovery of damages from the same defendant for the removal and retention of the same coal involved herein. After several days of trial, that issue was settled and discontinued by agreement of the parties and approval of the court, conditioned upon the payment of a stipulated sum of money from the defendant to the plaintiffs. A draft in the sum agreed upon was delivered.
Subsequently, the plaintiffs attempted to disaffirm the settlement agreement and have the case reopened. The trial court refused the request. Its action was affirmed on appeal: Sustrick v. Jones & Laughlin Steel Corp., 189 Pa. Superior Ct. 47, 149 A.2d 498 (1959).
The present claim in so far as it involves the recovery of damages for the removal of the coal and damage to the buildings on plaintiffs' land is barred by the settlement and discontinuance of the 1957 action. As between the parties involved, the settlement and discontinuance had the same effect as the entry of a judgment for the ...