decided: March 16, 1965.
HAZLETON CITY AUTHORITY
Appeal from judgment of Court of Common Pleas of Luzerne County, Jan. T., 1961, No. 540, in case of Daniel M. Coxe et al. v. Hazleton City Authority and Municipal Management Company.
Henry Thalenfeld, for appellants.
Benjamin M. Quigg, Jr., with him John E. Cotsack, J. Earl Langan, William E. Zeiter, and Morgan, Lewis & Bockius, for appellees.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Cohen. Mr. Justice Jones concurs in the result.
[ 417 Pa. Page 116]
This is an appeal from a judgment for defendants in a trespass action in which plaintiffs claimed damages arising from defendants' alleged interference with their right to mine coal admittedly owned by them.
One of the defendants, Hazleton City Authority, maintains reservoirs, dams, and pipe lines upon a certain tract of land, pursuant to a condemnation effected by its predecessor, Hazleton Water Company.*fn1 Prior to the condemnation the land was owned by plaintiffs' predecessors. An instrument executed in conjunction with the condemnation purported to release to plaintiffs' predecessors the coal rights in the land, in consideration of a reduction in condemnation damages.*fn2
[ 417 Pa. Page 117]
Plaintiffs desire to mine coal on or under the condemned land. They and the Authority recognize that contamination of the Authority's water would probably result. We find it unnecessary to reach the question of whether the release has freed plaintiffs from liability for the supposed contamination. The lower court correctly held that plaintiffs have not made out a cause of action in trespass because defendants have in no way prevented them from commencing mining operations.
The lower court found as a fact that "no water facilities of the Authority overlay the coal" and that the coal in question "is located at least one mile away from the nearest reservoir." Plaintiffs do not dispute this finding. Accordingly, this case is not within the rule of Cochran Coal Company v. Municipal Management Company, 380 Pa. 397, 110 A.2d 345 (1955), where a trespass action was permitted against a water authority because its dam and other facilities were constructed on top of plaintiffs' coal and its water was seeping into plaintiffs' mines.*fn3
[ 417 Pa. Page 118]
The lower court further found, and was sustained by the court en banc, that "[a]t no time have defendants, or either of them, erected any physical barriers upon the condemned property, nor have they by any force or threat sought to bar plaintiffs or plaintiffs' predecessors in title from access to the land for any purpose." Plaintiffs contest this finding solely on the basis of the following letter received by them from defendant Authority:
"In your letter of October 24, 1958 you suggested that a meeting of the various parties, concerned in the question of the coal under the surface of the Dreck Creek Watershed be held.
"This meeting was held on March 16th, 1959 and as a result our attorneys have presented their opinion as to the position of the Authority in this matter.
"Their opinion is: 'The Coxe Estate and the Lehigh Valley Coal Company have advised the Authority that they desire to commence mining operations, both deep and strip mining, on the water shed in the vicinity of our Dreck Creek Reservoir. They have stated that they will be unable to carry on such operations in a way which will not pollute the Authority's water supply. No plan for this operation has been submitted to the Sanitary Water Board as required by law.
"'Dreck Creek and its reservoir is one of the principal sources of the Authority's water supply, and if this is to be destroyed our engineers advise us that it will not be possible for the Authority to continue to serve its present customers.
"'Under these circumstances we believe that the Authority should not agree to permit the Coxe Estate and the Lehigh Valley Coal Company to mine this area.'
"The Board reviewed the opinion and by proper action adopted it as the position of the Authority."
[ 417 Pa. Page 119]
Plaintiffs have not cited any authority for the proposition that a letter containing veiled threats of interference could constitute a trespass upon the type of property rights plaintiffs are asserting in this case. Even if such authority were found, it would not be applicable here; in our opinion, this letter is nothing more than a refusal by the Authority to acquiesce in the proposed contamination of its waters. As such, it does not prevent the plaintiffs from mining and, therefore, is not actionable. See Downing v. Baldwin, 1 S. & R. 298, 303-304 (1815). Actually, the Authority has maintained all along that, if plaintiffs begin mining, the enforcement by the Commonwealth of its statutory laws, to which the letter alludes, will make it unnecessary for the Authority itself to take any action against plaintiffs to protect its waters from contamination. See especially §§ 310-313 of the Act of June 22, 1937, P. L. 1987, added by Act of May 8, 1945, P. L. 435, §§ 6-7, 35 P.S. §§ 691.310-691.313. Of course, we express no opinion as to the applicability of this statute.
Because defendants have not interfered with any right plaintiffs may have to commence mining, plaintiffs have no cause of action in trespass.*fn4 Accordingly, and for this reason alone, the judgment of the lower court is affirmed.