Davis v. Jefferson Gas Co.

Opinion by Mb. Justice Stebbett, In the exercise of its right of eminent domain, defendant company entered upon plaintiff’s land, and appropriated a strip thereof ten feet wide and 710 feet long, running diagonally across a portion of the farm. In that strip, at the depth of about three feet from the surface, defendant’s pipe line for the transportation of gas was laid. An appeal having been taken from the award of viewers appointed to assess damages, the issue was tried in due course by a jury, and on their verdict in favor of plaintiff for $175, judgment was entered. From that judgment this appeal was taken. One of the errors assigned to the rulings of the trial judge is the refusal of plaintiff’s offer “ to prove the character of the soil through which defendant’s pipe line runs, the depth of the line below the surface of the ground, the proximity of defendant’s line to the surface of the underlying coal, the danger of the surface falling in when the coal is removed, the probable breaking of defendant’s pipes, the danger of gas escaping into plaintiff’s mine; and that, for the purpose of showing the general depreciation in the market value of plaintiff’s property.” In view of the distinctly stated purpose of the offer, the testimony therein referred to appears to be both competent and relevant. The market value of plaintiff’s land, as affected by defendant’s entry thereon and specific appropriation of a por [137] tion thereof, and also by the use to which the portion thus appropriated was applied, etc., was clearly proper for the consideration of the jury in determining the extent of plaintiff’s damages. The market value of the, land, as a whole, was doubtless affected, not merely by the entry and appropriation of the ten-feet wide strip of surface for the purpose of laying therein, maintaining and operating the defendant’s pipe line, but also by the necessary and unavoidable consequences of such appropriation and use. The servitude thus fastened upon the land includes, among other things, the right of subjacent support with all its incidents: Penn Coal Co. v. Gas Co., 131 Pa. 522. It was there held that such an entry upon the surface, is an entry upon and appropriation of the subjacent strata, so far as they are necessary to support the surface for the purposes .of' the highway, pipe line or other structure to be built thereon. Our brother Williams, speaking for this court, said: “ If an entry had been made on these lands under the right of eminent domain, before the coal had been separated from the surface by sale, the corporation making such entry would have acquired a right both to the surface and to the support of the surface by the underlying coal, or so much thereof as would be needed for that purpose. The loss in value to the tract by reason of the appropriation of part of the coal to the support of the surface, is a proper subject for compensation by the viewers appointed to assess damages: Searle v. Railroad Co., 33 Pa. 57; Reading R. Co. v. Balthasar, 119 Pa. 472. This is to be ascertained, not by a calculation of the quantity of the coal, but by the effect of the appropriation on the tract as a whole. The railroad company, as was said by Lowrxe, C. J., ‘ gets no title to the coal further than it is needed to support the surface; ’ but they did acquire, beyond, all question, the right to such support, without which the right to the surface would have possessed but little value. It was, so to speak, appurtenant to the surface, and was acquired with it.” In the case now under consideration there has never been any severance of the coal in place from the land, by conveyance or otherwise. The land and all that is contained therein belongs to the plaintiff. The coal mine, opened ten or twelve years ago, appears to have been worked more or less ever since. The mining has progressed in the direction of the strip appro [138] priated by defendant, until, at one or two points, it is quite near tlie right of way. If plaintiff can show that the servitude imposed on her land does or will, for any of the reasons suggested in the offer, so interfere with the successful mining and taking out the coal underlying the pipe line, or beyond it, that the market value of the land, as a whole, has been materially depreciated, there is no good reason why she should not be permitted to do so. In circumstances such as are alleged to exist in this case it would be difficult, if not impossible, for a jury to arrive at a just conclusion as to the amount of damages that should be awarded, unless they are aided by evidence such as appears to be contemplated by the offer in question. As was said in Penn Coal Co. v. Gas Co., supra. “ The character of the structure to be put upon the surface, the use to which it is devoted, the depth below the surface at which the vein of coal is found, and the regularity of the geological formation, are circumstances to be taken into account in determining the amount of support needed. . . . Support is acquired, as matter of law, by an entry under the right of eminent domain, and is a proper subject for compensation, not by estimating the value of the coal in place that may be needed for support, but by the effect of the appropriation on the price or value of the underlying estate.” In that case, the land was owned by one person, and the coal by another; but that severance in title cannot affect the principle. On the argument here, it was claimed by defendant company that it can even now release all claim to plaintiff’s coal as a means of subjacent support for its pipe line, and accept the risk of subsidence, etc., which may result from the removal of that support; and, on its application, permission was given to file such release. Conceding, for the purpose of argument, that the company has the power to release the right of support which, as locum tenens of the commonwealth, it acquired under the right of eminent domain, and take upon itself the risk of subsidence with all its consequences, what effect has the release on the question of damages? As against its releasee, the company would doubtless be estopped by its release from claiming any damage resulting to it from the removal of the coal; but that would be no compensation to her for the risk [139] she would encounter from subsidence, breaking of the pipe line, flooding the mine with gas, etc., in case she undertook to mine out the coal. It would be giving a novel effect to the company’s release, to hold that it eliminates from the case the element of risk and consequent damage, not only to the company itself, but also to the mine owner, arising from the removal of such support. The constitution recognizes no such mode of making “just compensation for property taken, injured, or destroyed ” in the exercise of the right of eminent domain. While the defendant may release its claim to what is properly its own to dispose of, it cannot, by release or otherwise, barter away the rights of others. Neither corporations nor individuals can release that which does not belong to them. It is unnecessary, at present, to further consider the effect of the release in question. It was not in the case while it was pending in the court below. It was hot even tendered until long after the record was brought into this court. If it becomes a factor in the next trial, its effect can then be fully considered. In one of the points submitted by plaintiff, the learned judge was requested to charge “ that the easement of the defendant company, obtained under the right of eminent domain, carries with it the right of support for its lines ; and the owner of the land has no right to remove coal or other minerals under said lines, to their injury or detriment.” In another point, he was requested to charge “ that the right of the plaintiff to use the ground appropriated by defendant company, which, in this case, is a strip ten feet in width, and 710 feet in length, is subordinate to the superior rights of the Jefferson Gas Co.; and this superior right to use the ground so appropriated, extends to all the minerals underlying said line, including the coal, the removal of which would endanger the safety of the pipes of defendant company.” As will be seen by reference to the authorities already cited, these propositions are both correct, and should have been affirmed. In the opening sentence of his charge the learned judge says : “ Answering these points is a good deal like .... shooting on the wing.” This may account for these stray shots. The last specification of error is not according to rule, and is therefore dismissed without further comment. Judgment reversed, and a venire facias de novo awarded. C.