Opinion
6 Div. 725.
November 4, 1926.
Appeal from Circuit Court, Jefferson County; Roger Snyder, Judge.
Stokely, Scrivner, Dominick Smith and E. N. Hamill, all of Birmingham, for appellant.
The allegation that defendant owned minerals under land near to plaintiff's property is too vague and indefinite. B. R., L. P. Co. v. Nicholas, 181 Ala. 491, 61 So. 361; Sloss-Sheffield Steel Iron Co. v. Sampson, 158 Ala. 590, 48 So. 493. The negligent act of the lessee cannot be imputed to the lessor, in the absence of allegation that the lessor authorized or actively participated in the alleged negligent act of the lessee. Offerman v. Starr, 2 Pa. 394, 44 Am. Dec. 211. Unless the lessor knowingly permits the lessee to remove coal, the owner is not liable. Nisbit v. Lofton, 211 Ky. 487, 277 S.W. 828. Count E is deficient; it shows no relation between the plaintiff and defendant — no duty and breach of duty. Sloss-Sheffield Steel Iron Co. v. Sampson, supra.
Altman, Taylor Koenig, of Birmingham, for appellee.
Where lessee removes coal, leaving insufficient support, and the lessor with knowledge of this fact takes no steps to avoid injury to surface soil, but receives royalties on all coal mined, the lessor is liable to the owner of the surface for injuries by reason of the sinking of the surface soil. Campbell v. Louisville Coal Min. Co., 39 Colo. 379, 89 P. 767, 10 L.R.A. (N.S.) 822. The right to mine is subservient to the right of the owner to have the surface maintained in its natural state, from subsidence or parting of the soil. The right of subjacent support is absolute. Corona Coal Co. v. Thomas, 212 Ala. 56, 101 So. 673; Humphries v. Brogden, 12 Q. B. 739. Charges of negligence found in some of the counts neither added to nor detracted from the cause of action stated. West Pratt Coal Co. v. Dorman, 161 Ala. 389, 49 So. 850, 23 L.R.A. (N.S.) 805, 135 Am. St. Rep. 127.
It is a well-settled proposition of law that the right to subjacent support is absolute, and it is no defense to an action to recover for an injury to the surface that the mining operations were conducted with due skill and care or even in the most approved manner. 40 C. J. 1196; Williams v. Gibson, 84 Ala. 228, 4 So. 350, 5 Am. St. Rep. 368; Lindley on Mines (3d Ed.) § 831. Indeed, this proposition is not questioned by counsel on either side, the question being the liability of the owner of the mine for the act of his lessee in injuring the surface right of a third person in conducting mining operations.
Ordinarily the lessee of the minerals, and not the lessor, is liable for a subsidence of the surface caused by mining operations over which the lessee is in full control. On the other hand, if the lessor reserves the right in the lease to direct or control the mining operations of the lessee and gives directions as to taking coal from the pillows or supports of the mine and in consequence of such directions the surface caves in, he is liable to the owner of the surface for the resulting injury. Kistler v. Thompson, 158 Pa. 139, 27 A. 874. Or if he assumes control over the operation, whether the right to do so was reserved in the lease or not, and injury results from his control or direction, he would be liable. In the case of Campbell v. Louisville Coal Co., 39 Colo. 379, 89 P. 767, 10 L.R.A. (N.S.) 822, the Colorado court seems to hold that the lessor would be liable if he received a benefit from the mining operations, with knowledge of the facts, whether he did or did not reserve in the lease a control or direction over the mining operation, or whether or not he was exercising any control whatever over same, proceeding upon the theory that there was an implied duty upon him, which should be read into the lease, of seeing that the lessee so conducted the mining operations as not to injure the surface. As to this, we cannot subscribe, as the mere receipt of a royalty for the mineral even if he knows of the mining operations would not authorize or require him to interfere and control simply because he may have been the owner of the mineral, in the absence of the reservation of the right to do so under the terms of the lease.
Count D of the complaint is not only involved and confusing, but, as we understand, it fails to charge a state of facts which would render this defendant legally responsible for the injury done the plaintiff. It nowhere charges that the defendant owned the mineral under the plaintiff's lot, or that the mineral under the plaintiff's lot was included in the lease. It charges that the defendant was the "owner of the mineral right in said property adjacent or near thereto." It then sets up the leasing of property and a copy of the lease which has no description of the property except by reference to a deed. It then avers that under its agreement or "otherwise" the defendant caused or allowed the Consumers' Clay Company to engage in and perform mining operations under or subjacent to plaintiff's said property as aforesaid, and that the Consumers' Company negligently removed minerals or coal or other natural formation "under plaintiff's said property." In other words, in order to hold the defendant responsible under the lease, pretermitting other questions, the Consumers' Company must have been mining on land embraced in the lease, and if the lease did not include the coal under plaintiff's lot, the defendant would not be liable for the act of said company in going beyond and mining coal on the plaintiff's lot which had not been leased to said company. From aught appearing, the Consumers' Company mined coal under the plaintiff's property, and yet there is no specific averment that while doing this it operated on lands embraced in the lease. On the other hand, if the Consumers' Company was not mining under the lease but was "otherwise" caused or allowed by the defendant to mine coal under the plaintiff's property, there are no facts charged showing any breach of duty upon the defendant in allowing this to be done. The trial court erred in not sustaining the defendant's demurrer to count D.
Count E was not subject to any of the defendant's grounds of demurrer.
For the error above pointed out, the judgment of the circuit court is reversed and the cause is remanded.
Reversed and remanded.
SOMERVILLE, THOMAS, and BOULDIN, JJ., concur.