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KUTSCH ET AL. v. MILLER (ET AL. (01/09/70)

decided: January 9, 1970.

KUTSCH ET AL., APPELLANTS,
v.
MILLER (ET AL., APPELLANT)



Appeals from decree of Court of Common Pleas of Butler County, June T., 1964, No. 7, in case of Richard Kutsch et al. v. William E. Miller, Jr. et al.

COUNSEL

Lee C. McCandless, for plaintiff.

G. Donald Gerlach, with him John L. Wilson, and Reed, Smith, Shaw & McClay, for defendant.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Jones.

Author: Jones

[ 436 Pa. Page 394]

The first of these two appeals*fn1 presents the question of whether the owner of a deep bituminous mine, Bessemer and Lake Erie Railroad (Bessemer), may be held liable for the alleged negligent acts of its lessees, Sterling Coal Company (Sterling) and Clinton Coal Company (Clinton), which supposedly caused the flooding of an adjacent deep mine owned by Richard and Albert Kutsch (Kutsch). In an equity action instituted in the Court of Common Pleas of Butler County, the court, after hearings, imposed liability on Bessemer on the theory that "accumulations of water on [Kutsch'] property were produced, diverted and maintained artificially by and for the benefit of [Bessemer]" and that "Bessemer and its tenants had no right to collect water on the property of [Kutsch] and thereafter create a hazard to [Kutsch] and any employees [Kutsch] might have extracting coal from their own mine." We do not agree.

On March 29, 1961, Bessemer purchased a bituminous coal mine in Clinton Township, Butler County, known as the "Riddle Mine." Adjacent to the "Riddle Mine" was another mine which had been owned and operated by Kutsch since 1945. Both mines worked the same vein of coal, but, because of the topographical pattern of the vein, the vein worked in "Riddle Mine" was at a higher level than that worked in the Kutsch mine.

[ 436 Pa. Page 395]

Some time prior to March, 1956, a predecessor in title of Bessemer, conducting mining operations in the "Riddle Mine," crossed the boundary line between the "Riddle Mine" and the Kutsch property, intruded therein for approximately 30 feet for a distance of 700 feet and removed virgin coal from the Kutsch property. This encroachment into the Kutsch property took place at the southeast corner of the "Riddle Mine."*fn2

On April 1, 1961, Bessemer leased to Sterling the exclusive right to mine the Upper Freeport seam of the "Riddle Mine." This lease provided that: (1) Sterling was to do all the work and pay Bessemer a royalty of 20 cent per ton of coal mined; (2) Sterling was to keep accurate books to which Bessemer was to have reasonable access; (3) Sterling was to carry out its operations in a workmanlike and efficient manner, obeying the mining laws; (4) Bessemer retained the right to make reasonable inspections of Sterling's operations; (5) Sterling was to submit its mining plans to Bessemer six months prior to mining; and (6) in the event of unforeseen difficulties, the parties agreed to meet in order to draw up a revised mining plan. The last paragraph of the lease recited that Sterling was to be an independent contractor, with Bessemer having no supervision or control over the specific activities of Sterling in its mining operations.*fn3

[ 436 Pa. Page 396]

Sterling's mining operations progressed to the north, away from the Kutsch property and followed the naturally ascending pattern of the coal seam. Because the natural drainage pattern of the "Riddle Mine" was from the northwest to the southeast, any water released by Sterling's operations tended to flow by gravity toward the point at which there had been a wrongful intrusion into the Kutsch property by Bessemer's predecessor in title. Accordingly, as part of its operations, Sterling pumped the water from this low point in the "Riddle Mine" to the surface through a bore hole.

The Upper Freeport seam was also marked by small (five to seven feet) local dips and rises. In order to mine these areas, Sterling also pumped water out of the dips and over the rises, from where the water then flowed ...


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