Appeals from judgments of Court of Common Pleas, Civil Division, of Allegheny County, July T., 1966, No. 3473, and Oct. T., 1967, No. 3444, in cases of Curry Coal Company v. M. C. Arnoni Company et al., and John W. Daugherty et al. v. Same.
Robert L. Zeman, with him Adolph L. Zeman, and Zeman and Zeman, for appellants.
Bernard J. McAuley, with him Wayman, Irvin, Trushel & McAuley, for defendant, appellee.
Frederick N. Egler, with him Theodore E. Breault, and Egler, McGregor & Reinstadtler, for defendant, appellee.
James P. McKenna, Jr., with him Daniel P. Stefko, and Dickie, McCamey & Chilcote, for defendant, appellee.
Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice O'Brien.
These appeals are from the refusal of the Court of Common Pleas of Allegheny County to take off judgments of compulsory non-suit in two separate trespass actions filed in that court and consolidated for trial. The actions were instituted by different plaintiffs, Curry Coal Company as lessee and Daugherty Coal Company as lessor of a coal mine located in South Park Township.
Since December 1, 1939, the Daugherty Coal Company, or its predecessors in title, had owned several contiguous tracts of coal known as the Piney Fork Mine, with mining rights and waivers of surface damage. By a written lease dated June 6, 1961, Daugherty demised a part of the mine to Curry Coal as lessee for a period of fifteen years with the rent payable in the form of a tonnage royalty. Daugherty also leased the tipple, which is outside of the mine, to a firm known as Brushton Coal Company and charged as rent a tonnage royalty for the coal which passed through the tipple.
In the course of mining and as a natural consequence thereof, portions of the "roof" of the mine had fallen, and cracks, fissures or fractures ascended from the mine roof into the overburden above the mine.
The surface land overlying the Piney Fork Mine was owned by the M. C. Arnoni Company, one of the appellees, which operated a sanitary landfill or garbage dump on the surface. In the course of operating its dump, Arnoni excavated a sump or pond area sixty feet long, forty feet wide and three to four feet deep. The base of the sump was about thirty feet above the roof of the mine. A ditch led from the pond to the dumping location.
Beginning in the year 1964, Jones & Laughlin Steel Corporation contracted with Michael Brothers, Inc., to haul away a noxious industrial waste substance known inelegantly, but descriptively as "sludge." The sludge was a black, oily liquid which was highly inflammable and had a pronounced odor. The contract with Michael Brothers was on a yearly basis. Jones & Laughlin exercised no supervision or control over, nor did it put any restriction on Michael Brothers as to the place or manner of disposing of the sludge. Michael Brothers contracted with Arnoni to dump the sludge, with Arnoni specifying the place of disposal.
Michael Brothers was in the rubbish removal business. Its drivers made frequent trips to the Arnoni dump, where they disposed of as many as eight or nine loads of rubbish per day. Although the dumping of sludge began in February of 1964, no sludge was found in the mine until January 8, 1965, when it first appeared on the floor of the mine. The odor of the sludge within the confines of the mine was so strong that it forced the miners to leave their places of work in the mine as often as five to six times during a work shift to go to the pitmouth to get fresh air in order to rid themselves of the oppressive effects of the sludge. By January 28, 1965, the sludge had seeped and ...