Town of Carbon Hill v. Leith

SAYRE, J. Appellant, town of Carbon Hill, filed the bill in this cause to enjoin ap *634 pedees from mining and removing coal from under the streets, avenues, or alleys of the town. Confessedly, the proof is the same as it was in the case of Faught v. Leith, 78 South. 830, 1 recently decided, except that appellants say in their brief that at one place a street has caved in, and that “the top oyer where the coal is taken gradually sloughs 7>ff until a thin crust of surface is left and that finally breaks and falls in.” We do not find this contention to be sustained by the record as to any places mined by appellees. Moreover, the decree rendered in the court below, dissolving the temporary injunction, shows that it was based upon “the affidavits offered by the respective parties and upon personal examination and investigation by the court of the property of the complainant and mines and operations of the defendant,” and so it appears that the finding of the trial court upon a personal examination and investigation was in accord with the judgment indicated by the record. In these circumstances the decree dissolving the injunction is affirmed upon the authority of Paught v. Leith, supra. Affirmed. ANDERSON, C. J., and McCLELLAN and GARDNER, JJ., concur. Footnotes [1] Ante, p. 452.