Penn Gas Coal Co. v. Versailles Fuel Gas Co.

[To be reported.] 1. While a release from the owner of surface land, exempting the owners of underlying minerals and their estates from the obligation of surface support, will be binding iipon all persons subsequently taking title from the releasors, the state, or its grantee, entering upon the surface under the power of eminent domain, will not be bound or restricted thereby. 2. Such an entry upon the surface is an entry upon and an appropriation of the subjacent strata, so far as they are necessary to support the surface for the purposes of the highway or other structure to be built thereon, notwithstanding the underlying minerals may previously have been severed in their ownership from the surface, and released from the servitude of surface support. 3. Wherefore, an owner of coal in situ, to whom the surface owner has granted the right to remove the whole of it, without liability for any resulting subsidence of the surface, is entitled to an injunction restraining a corporation from entering upon the overlying surface to construct a pipe line, until payment or security for compensation for the easement of support, acquired as matter of law by such entry. 4. Such corporation may, however, agree to be bound by the release granted by the owner of the surface, and to accept the risk of subsidence which such release involves, excluding from its appropriation the coal underlying its line, and upon the filing of a stipulation to this effect, a prayer by the owner of the coal for an injunction against its entry upon the surface will be refused.

APPEALS BY PLAINTIFFS FROM' THE COURT OF COMMON PLEAS OF WESTMORELAND COUNTY, IN EQUITY. Nos. 20, 21 October Term 1890, Sup. Ct.; * court below, numbers and term not given. On November 18, 1889, the Penn Gas Coal Company filed its bill in equity against the Versailles Fuel Gas Company in substance averring: That the plaintiff was the owner in fee of the coal underlying certain tracts of land in Westmoreland county ; that the acquisition of its title to the coal was accompanied with the privilege to make drains on the surface and air holes, and from time to time to change the drains and air holes, or either of them, as the convenience of mining might require, together with all mining privileges, on the surface or under it, necessary to the removal of the coal, and without responsibility for damages for the sinking or falling in of the surface by reason of the removal of the coal; that the defendant proposed to enter upon and occupy said tracts of land for the purpose of constructing and operating a pipe line for the transportation of natural gas, in the exercise of the power of eminent domain alleged to have been conferred upon it by the act of May 29, 1885, P. L. 29, and threatened so to enter and occupy without tendering to the plaintiff a bond securing the payment of the damages to the plaintiff’s underlying coal; that the defendant had not taken any steps to obtain a decree from the Court of Common Pleas of Westmoreland county defining the precautions which should be taken in laying its pipes, but was proceeding to construct its pipe lino in a manner prejudicial to the rights of the plaintiff, and dangerous to those of the community, because it was laying its pipes at the depth of about two feet below the surface, and there was imminent risk that in mining the coal in the usual and customary manner, and in accordance with the plaintiff’s mining rights, the surface whereon the pipe is laid would sink or fall in, and should this occur damage of the gravest character by the breaking or disjointing of the pipes and the escape of explosive gas therefrom into the mine, would inevitably ensue; that the risk of this sinking of the surface could not be avoided without to a large extent abandoning the ordinary and customary development of the plaintiff’s mine and leaving large bodies of coal in place; that the pipes proposed to be laid were cast-iron pipes, which were not so durable as wrought-iron pipes, and the danger aforesaid might be measurably avoided if the defendant would use pipes of wrought-iron, elevating them above the ground, or inclosing them in adequately strong boxes, open at the top. The bill prayed for an injunction restraining the defendant from entering upon and occupying any portion of the surface of said tracts until the filing and approval of an adequate bond to the plaintiff, securing the payment to it of compensation, and until the defendant should take such precautions, in regard to the erection and construction of its pipe line, as might be prescribed by the court; for a decree declaring what method of construction should be followed by the defendant with reference to safety and a due regard to the rights of the plaintiff; and for general relief. The Westmoreland Coal Company also filed a bill against the same defendant, averring ownership in the plaintiff to the coal underlying certain other tracts of land in said county, with mining rights therein substantially identical with those specified in the bill of the Penn Gas Coal Company, and making substantially the same charges against the defendant and the same prayers for relief. Upon the allegations contained in their bills the plaintiffs moved the court for preliminary injunctions. The motions in the two cases were heard together. Upon the hearing, the plaintiffs presented a number of affidavits tending to prove that the allegations of their bills were true; that the line which the defendant proposed to lay would in some places pass' over workings in the mines of the plaintiffs, and in other places would pass over or through the crop line of the plaintiffs’ coals; that large portions of it, to be laid over coal yet unworked, would not be far enough above the level of the coal to avoid danger to the mines in case of a subsidence of the surface ; that in at least one instance an accident had occurred in a mine by the explosion of gas escaping from a pipe line laid below the surface of the land, and that to make this line safe it should be laid upon the surface. The plaintiffs put in evidence also, an exemplification of certain proceedings in the Court of Common Pleas No. 1 of Allegheny county, wherein the owners of a mine in that county, on complaint of the mine inspectors, were restrained from operating it until certain changes were made in a pipe line laid thereon by the Chartiers Valley Gas Company. The defendant company presented at the hearing specifications which set forth minutely the manner in which it proposed to lay the portions of its line passing over the coal properties of the plaintiffs, and the precautions it proposed to take to guard against accidents. An extract therefrom was appended to and made a part of the decree of the court below, infra. The defendant further presented affidavits tending to prove that its line, as it was designed to be laid, would be reasonably safe and free from danger. The court, Htjntek, P. J., after argument, filed the following opinion and decree: These cases came on to bo heard while we had on hand a heavy criminal calendar, and we have not had time to give the questions raised that thorough research that their importance demands, nor have we time now to hand down or prepare an exhaustive opinion, while the nature of the case and the direction of the act of 1885 requires that “ a decree be made with all convenient speed and promptness.” The facts all appear of record, and we need not, therefore, now repeat them. If the surface land be servient to the coal land, it is only because of a contract by which the latter procured its mining rights, and are relieved from damages to the surface in mining and taking away the coal. In the absence of such contract, the owners of the coal would be answerable to the owners of the surface for any injury thereto or trespass committed thereon in taking out the coal, and thus the coal land would be, in a sense, servient to the surface land. It is not a casepwhere, owing to the natural location of the premises, the common and ordinary use and occupation of the one, necessarily makes another tenement servient. The defendant company is clothed with the right of eminent domain by virtue of its charter and the law that gave it birth, and has the right to enter and lay its pipes on the lands of others, subject, however, to the provisions of § 8, article XVI., of the constitution, and must make compensation for property “ taken, injured, or destroyed ” in the construction of its works. These words have received a judicial construction by our Supreme Court in the case of Penna. R. Co. v. Marchant, 119 Pa. 541. Let me quote from the syllabus: “ The remedy provided by said constitutional provision, to secure just compensation by corporations for property injured or destroyed, has relation to injuries which, though popularly termed consequential, are yet to be understood as confined to such injuries to one’s property as are actual, positive, and visible, the natural and necessary results of the original construction or enlargement of its works by a corporation, and, of such certain character, that compensation therefor may be ascertained at the time the works are being constructed or enlarged, and paid or secured, as provided in the constitution, in advance.” The opinion in this case is exceedingly exhaustive, but fully bears out the syllabus we have quoted. Now then, taking these bills and ex parte affidavits, it is impossible for us to say what, if any, the damage might be to the plaintiff’s coal mines, or that they are actual, positive, and visible, and the necessary results of the original construction of the defendant’s works. Nor do I think that the cases shown by the exemplification of the records of the courts of Allegheny county would establish this fact; nor do they establish the rights of these plaintiffs under the constitution as contended for. The coal companies there were restrained at the instances of the mine inspector from taking out the coal and endangering the mines from breaking of pipes and leakage of the gas, until the gas pipes were constructed in a different or sufficient manner, but of this further on. While the bills in both cases here are precisely similar, yet they both aver an easement in the surface, namely, the right to enter thereon in' the exercise of their mining rights, privileges to make drains with air holes, etc., and this averment is not denied. So then, while we cannot hold that the defendant company is compelled to give a bond for going over the surface which does not belong to the plaintiffs, we have power to direct how or in what manner the pipes are to be laid over land in which there is an easement, under the twelfth section of the act of May 20, 1885, where anj*- dispute arises; and that there is a dispute here, these bills and affidavits and the contention of he parties as to their respective rights clearly aver. And this question is independent of any constitutional provision, because it is in defendant company’s charter privileges and obligations. And here we may remark that this statute would seem to be precautionary only, and, although it does give the court restraining power, yet we think that the well-known principle of equity, that only in clear cases an injunction will be granted, does not for the reason given apply; at least, we shall give the statute a more liberal construction and determine the question from the weight of the proofs offered at the hearing. Turning to the Chartiers Valley Gas Company cases, where there was a restraining order against the coal companies, as shown by the records brought here from Allegheny county, we are not informed as to whether the pipes had been laid as they are here about to be laid, if the specifications are followed. It is true that the pipes there were afterwards laid above the surface, but is this the only safe way ? At the hearing in these cases, the defendant company offered its specifications, and the fair presumption is that the intention is to have the pipes laid in the manner specified therein; and the weight of the proofs offered at the hearing convinces us that if the pipes be laid in the manner as specified on page 3 of the specifications, under the caption of “ Cinder and Coal,” there will be no danger. We find the words “through coal,” quoted, to apply here to cases like the ones before us. These specifications we now direct to be filed with this opinion. And now, November 25, 1889, upon due consideration thereof, it is ordered, adjudged, and decreed, that the Versailles Fuel Gas Company, the defendant in the afore-named bills in equity, shall lay its gas pipes over the plaintiff companies’ coal land, and such surface land as they, or either of them, may own, in the manner prescribed in the Versailles Fuel Gas Company’s specifications on page 3, under the caption of “ Cinder and Coal,” hereunto attached and ordered to be filed; and it is further ordered, adjudged, and decreed that the Versailles Fuel Gas Company, the defendant, its officers, agents, servants, and employees be and they are hereby enjoined from laying their pipes over the premises of the respective plaintiffs aforesaid in any other way.3 —Extract from specifications : “ CINDER AND COAL.” “ Where the ditch runs through cinder or coal, the ditch shall be dug twelve inches extra depth and twenty-three inches extra width. Clay shall be tamped in at the bottom of the ditch for twelve inches, and, after the pipe is laid and tested, clay shall be tamped twelve inches wide on each side of the pipe, and on top of the pipe to the surface of the ground. Where the ditch passes through coal, or close to houses, and at such other places as the engineer may direct, in addition to the clay a broken-stone escape system, consisting of six inches of broken stone on top of the pipes, a layer of tar paper, and escape posts every one hundred feet shall be put in.” Thereupon the plaintiffs took these appeals, assigning for error: 2. The refusal of the plaintiffs’ motions for preliminary in-. junctions. 3. The decree of November 25, 1889.3