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.
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
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
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 ...