OPINION BY MR. JUSTICE BELL, March 19, 1951:
These appeals involve the right of the court below to enter judgment n.o.v. Each plaintiff sought to recover damages in an action of trespass against the City of Philadelphia, Trustee under the Will of Stephen Girard,
Indian Ridge Colliery had not been actively mined for many years prior to March 4, 1940 when the subsidence began. Mining was being conducted in Kehley's Run Colliery since May 3, 1938, not by defendant, but by the Morea Coal Company under an agreement of lease or sale with defendant, which agreement had been approved by the Orphans' Court of Schuylkill County. Nevertheless plaintiffs sued, not the Morea Coal Company nor the Indian Ridge Colliery, but the Girard Trust Estate. Moreover, the suits were brought on February 28, 1946, almost six years after the subsidence. The two cases were consolidated and tried together. The plaintiff Borough proved damages to street paving and municipally owned water lines and sewer lines, as well as loss of tax revenue; the School District proved the total destruction of one high school building, the cost of repair of another which was seriously damaged, and a loss of tax revenue. The jury returned a verdict for the plaintiff Borough in the sum of $431,418.57 and for the plaintiff School District in the sum of $430,721.54. The jury also specifically found (1) that the subsidence was caused by the failure of support of Kehley's Run Mine; (2) that the defendant was guilty of negligence in entering into the 1938 lease with the Morea Coal Company; and (3) that after the lease was made in 1938, the defendant was guilty of negligence in permitting the Morea Coal Company to continue with its mining operations in the Kehley's Run Mine.
The court below entered judgment n.o.v. for the defendant alleging more than a half dozen reasons, and
The importance of this case to the coal regions is evidenced by the fact that 41 political subdivisions joined as intervenors in this suit.
From the voluminous record we shall briefly epitomize the most important facts. The plaintiff School District of Shenandoah based its claim against defendant on the ground that on May 3, 1938, defendant leased Kehley's Run Colliery "and the lessee thereof from said date conducted mining operations therein under the supervision, direction, management and control of the Defendant
On May 3, 1938, the City of Philadelphia, Trustee Under the Will of Stephen Girard, denominated "lessor", entered into a written agreement with the Morea Coal Company, denominated "lessee", granting the "exclusive license to mine, dig and carry away coal in and from all the beds or seams of coal upon . . . Kehley's Run Colliery . . . for a term of ten years". The surface subsidence above mentioned, which commenced on March 4, 1940, was entirely above the Indian Ridge Mine and apparently (plaintiffs' testimony on this point was very vague) there was no surface subsidence over the Kehley's Run Mine. Plaintiffs sued the Girard Trust Estate in its capacity as a public charity and did not sue the trustee in its individual capacity, apparently under the authority of Winnemore v. Philadelphia, 18 Pa.Super. 625, which was quoted with approval in Siidekum, Admr. v. Animal Rescue League, 353 Pa. 408, 45 A.2d 59. In the last mentioned case, Mr. Justice STERN said at page 417: "Of course, if, as in Winnemore v. Philadelphia, 18 Pa.Super. 625, a charitable institution conducts a business enterprise
Another important contention of appellants is that the written agreement of May 3, 1938 was a lease and not a sale of coal in place. The parties are denominated lessor and lessee; the lessor grants the lessee exclusive license to mine, take and carry away coal, for the term of ten years; the lessee promises to pay royalty on all coal mined; the lessee shall furnish the lessor statements of sales; the lessor shall have the right to examine all contracts and books of lessee; whenever the workable coal is actually exhausted the lease shall terminate, and lessor shall be entitled to resume possession of the premises; all taxes assessed upon the premises as land, including coal or surface or both, shall be paid by the lessor; the lessee shall open slopes, shafts or tunnels for mining coal in a workmanlike manner and as prescribed by the Mining Laws and Regulations of the State of Pennsylvania; the location and size of the slopes, shafts, tunnels, etc., and of the engines, pumps, breakers and other improvements shall be subject to the approval of the lessor; the lessee shall use the most approved methods of modern mining and shall comply
To a great many people who do not live in coal counties, the aforesaid instrument having the usual terms and attributes of a lease, would seem to be a lease. Nevertheless the law is long and well settled in Pennsylvania that "`The grant of a right to mine coal in the lands of the lessor and remove it therefrom, although the instrument may be called a lease, is a grant of an interest in the land itself, and not a mere license to take the coal.' The transaction . . . constituted a sale of the coal conditioned upon its being removed within the period specified": Lazarus's Estate, 145 Pa. 1, 8, 23 A. 372.
"It is none the less a sale, if the parties called the deed a lease, and styled themselves lessor and lessee, and contracted that in case of non-payment of the `royalty' the grantor should have the right of distress, or at his option the right to forfeit the grant": Delaware, Lackawanna and Western Railroad Company v. Sanderson, 109 Pa. 583, 589, 1 A. 394; ". . . and the fact that the right to take is limited to a term of years, does not make it any the less a sale": Advance Industrial
Whether the written instrument of May 3, 1938 is a sale or a lease, is in our opinion immaterial since neither the vendor nor lessor of a coal mine is responsible in trespass for the negligent mining by his (so-called) lessee which results in damage to the surface: Offerman v. Starr, 2 Pa. 394; Greek Catholic Congregation v. Plummer, 338 Pa. 373, 12 A.2d 435; Hill v. Pardee, 143 Pa. 98, 22 A. 815. In Offerman v. Starr, supra, the owner of a mine demised the right to mine on a royalty basis, reserving the right to view and examine the mine and to re-enter on non-payment, etc. The Court held that the owner was not liable for an injury resulting from the mining by the tenant. Mr. Chief Justice GIBSON said, inter alia, at page 396: "What had these defendants to do with the direction of the business or the coal when it was mined? Lewis covenanted to sink the slope, erect the engine, to take out a certain number of tons each year, according to the most approved method of mining, and carry it to the landing; and to pay a certain sum per ton for it. So far the defendants had nothing to do with the business, but to receive their rent. But they reserved a right to visit and examine the manner in which the business should
In Greek Catholic Congregation v. Plummer, 338 Pa. 373, 12 A.2d 435, plaintiff brought an action in trespass for damages for mining and removal of coal from plaintiff's land by defendants through their agent, the Wilson Coal Company, to which defendants had made a lease dated May 1, 1931. The lease was in form similar to the lease in the present case, but the Court held it was in legal effect a quit-claim deed. The language of the opinion by Mr. Justice MAXEY is particularly pertinent: "It is settled law in this Commonwealth that the lessor of a coal mine is not responsible in trespass of the negligent mining by his lessee which results in damage to the surface. In Hill v. Pardee, 143 Pa. 98, 22 A. 815, this Court held that in such a case the disturbance of a right of surface support is a tort for which the party which did the mining and not the lessor was responsible. In Offerman v. Starr, 2 Pa. 394, this court said in an opinion by Chief Justice GIBSON: `Respondeat superior is inapplicable to an owner of land, for acts of negligence in a business not conducted by him and for his account.' . . . Appellant also contends that because the defendants sent a mining engineer into the mine from time to time to inspect and report to the lessor on the mining operations, they `aided and abetted and participated in the mining and digging out of the said coal as fully and effectually as they individually
The court below correctly held that there was no evidence to prove the averments in plaintiffs' statements of claim, that the lessee conducted mining operations or robbed pillars under the supervision, direction, management and control of the defendant. Faced with this situation each of the plaintiffs, toward the end of the trial of their case, amended each of their statements of claim by adding additional acts of negligence. Briefly stated these amendments charged that defendant failed in the exercise of due care in entering into the "lease" of May 3, 1938, when it knew or should have known that the mine was practically exhausted and the removal of further coal would cause the withdrawal of lateral support and subsidence of plaintiffs' property, and, in permitting or failing to stop the mining of coal by the lessee when defendant knew or should have known damage would be occasioned thereby.
Plaintiffs offered expert testimony to support and prove the allegations of their amendments. The right of surface support and of lateral support and the kind and quantum of negligence required to be proved is set forth in Home Brewing Co. v. Thomas Colliery Co., 274 Pa. 56, 117 A. 542; Matulys v. Coal & Iron Co., 201 Pa. 70, 50 A. 823; McGettigan v. Potts, 149 Pa. 155, 24
In Grier v. Northern Assurance Co., 183 Pa. 334, 39 A. 10, the Court in its opinion, said (p. 343): "The doctrine that a new cause of action cannot be introduced, or new parties brought in, or a new subject-matter presented, or a fatal and material defect in the pleadings be corrected, after the statute of limitations has become a bar, is so familiar to the profession, and has been declared by this Court and by the courts of last resort of many other states of the Union, so frequently, that an extended review of the authorities is quite unnecessary."
In Martin v. Pittsburg Rys. Co., 227 Pa. 18, 75 A. 837, where an action in trespass was brought for the death of a person, an amended statement was not allowed after the statute of limitations had run. What the courts mean by a new cause of action is apparent from the opinion written by Mr. Justice ELKIN in which he said, inter alia (pp. 20, 21): "At the trial every act of negligence charged in the original statement was shown to be untrue and without foundation in fact. There was no evidence to show that proper signals were not given, and the positive testimony of witnesses produced by appellant showed that the car had a headlight; that it was not running at an excessive rate of
In Cox v. Wilkes-Barre Rwy. Corp., 334 Pa. 568, 6 A.2d 538, plaintiff's statement of claim charged that defendant was negligent in operating a car at reckless speed and in failure to have the car under control. Four years after the accident the statement was sought
In Noonan v. Pardee, 200 Pa. 474, 50 A. 255, plaintiff brought an action of trespass for damages to the surface of his land caused by defendant's removal of coal underlying plaintiff's land. The Court held that after six years an amendment alleging that plaintiff's damages were caused by defendant's removal of lateral support in an adjacent mine introduced a new cause of action which was barred by the Statute of Limitations.
These cases control in principle the instant case. It is therefore clear that the court below was correct in holding that plaintiffs' amendments introduced a new cause of action and having been offered at least nine years after the plaintiffs' cause of action arose, were of course barred by the Statute of Limitations.
Plaintiffs having failed to prove the averments in their original statement of claim, namely, that the lessee (vendee) conducted mining operations and was robbing pillars of coal under the supervision, direction, management and control of the defendant, their cases against this defendant must fail.
A number of other important legal questions were