Faught v. Leith

GARDNER, J. [1] The equity of the bill in this cause is not questioned, and rests upon the principle, well recognized in this state, that the right to mine is servient to the right of the owner of the surface to have it perpetually sustained in its natural state. Bibby v. Bunch, 176 Ala. 585, 58 South. 916. [2] Numerous affidavits were introduced in evidence by the respective parties, and, in addition thereto, the trial court visited the property and made a personal examination and investigation of same, as well as of the respondent’s mining operations. The decree of, the court discloses that the conclusion reached was based upon the affidavits, and also upon this personal investigation of the property thus visited. Clearly, therefore, this court has not before it the full evidentiary data the trial court had, and his conclusion upon the facts will not therefore be here disturbed. Warble v. Sulzberger, 185 Ala. 603, 64 South. 361; Dancy v. Ratliff, 77 South. 688; 1 Western Union. Tel. Co. v. Jones, 190 Ala. 70, 66 South. 691. By what is here said we do not mean to indicate that a like result would not have been reached had the record not shown such personal investigation by the trial court. Indeed, after a careful examination of the affidavits, we are strongly inclined to the view that the preponderance of the evidence thus offered supports the conclusion of the trial court in favor of the respondent’s insistence. We need not, however, enter into a consideration of that phase of the case. It results that the decree appealed from will be here affirmed. Affirmed. ANDERSON, C. J., and MeCLELLAN and SAYRE, JJ., concur. Footnotes [1] Ante, p. 162.