Opinion
October 1, 1954.
November 8, 1954.
Practice — Trespass — Suit pleaded and tried on negligence theory — Adverse verdict — Seeking new trial on absolute liability theory.
In a suit for trespass for damage caused by water flooding a coal mine, in which the plaintiff pleaded and tried his case on a theory of negligence, and there was a verdict for defendant, and on a motion for new trial plaintiff endeavored to change the theory of his case to one of absolute liability and complained that the charge was inadequate with respect to such theory, it was Held that the question of absolute liability was raised too late and that the motion for new trial should be dismissed.
Argued October 1, 1954. Before STERN, C. J., STEARNE, JONES, CHIDSEY, MUSMANNO and ARNOLD, JJ.
Appeal, No. 74, March T., 1954, from judgment of Court of Common Pleas of Butler County, Dec. T., 1951, No. 68, in case of McCormick Coal Company, Inc., v. R. R. Schubert, trading as R. S. Coal Company. Judgment affirmed.
Trespass for property damage. Before GRAFF, P.J., specially presiding.
Verdict for defendant; plaintiff's motion for new trial refused and judgment entered for defendant. Plaintiff appealed.
Plaintiff, the owner of a coal mine, contended that the defendant negligently caused water to come into the entries and workings of plaintiff's mine causing property damage. Adjacent to the plaintiff's property was a tract of land from which coal had been removed, in which there were abandoned workings. In the course of strip-mining another tract, adjacent to the mined-out land, the defendant changed the bed of a small stream. Plaintiff offered evidence that the defendant made cuts into the old headings which connected with the mined-out land and that during an exceedingly great rainfall some of the waters which would ordinarily have gone along the course of the small stream ran into these cuts, through the old workings, and thence into the plaintiff's workings, flooding plaintiff's mine. Defendant offered evidence that it did not expose or cut into any old workings and that no water from the property it was strip-mining went upon the adjacent mined-out tract.
A portion of the opinion of GRAFF, P. J., is as follows:
"The case was submitted to the jury upon two questions relating to the liability of the defendant; first, whether there was any water caused by the defendant's operation to come into the plaintiff's mine, and, secondly, whether the defendant conducted his strip mining operation in a negligent manner. The jury was instructed that the burden rested upon the plaintiff to prove both of these alleged facts.
"The plaintiff now contends that the charge was inadequate and improper and fundamentally wrong, in that the jury was not instructed that when the plaintiff offered evidence to the effect that water had been diverted by the defendant into the plaintiff's mine, that this established a prima facie case, and the burden then shifted to the defendant of coming forward with evidence and establishing that such diversion of water was the result of the natural and proper use and enjoyment of the defendant's property, and that the injury was unavoidable, and could not have been averted by reasonable expenditure. The plaintiff contends that if the defendant had offered such proof it could have then established liability, by proving negligence or malice in the operation.
"It is well-settled law that the right of the upper landowner to discharge water on the lower land of his neighbor is, in general, a right of flowage only, in the natural ways and natural quantities. If he alters the natural condition so as to change the course of the water, or to concentrate it at a particular point, or by artificial means to increase its volume, he becomes liable for any injury caused thereby: Pfeiffer v. Brown et al., 165 Pa. 267.
"An owner of land cannot concentrate the water and by artificial means increase its flow, or divert it by unnatural channels where it is not wont to flow, to the detriment of another landowner: Sweigart v. Burkholder et al., 154 Pa. Super. 424. See also, Beals et ux. v. Robertson et ux., 159 Pa. Super. 325; Welsh v. Kerr Coal Co., 233 Pa. 341.
"One coal mining company has no right to collect the surplus water in its mine and to discharge it through a tunnel or ditch onto another coal mining company's land, causing injury thereby. The maxim, 'Sic utere tuo ut alienum non laedas', applies in such a case: Lehigh W.-B. C. Co. v. Pittston C. M. Co. 289 Pa. 492.
"It appears that if there was a changing of the course of a stream, or the diverting of water from its ordinary course, over and upon the lands of the plaintiff, that an absolute liability would arise. The plaintiff did not so plead his case, nor was it tried upon any basis of absolute liability. The following is contained in the plaintiff's brief: 'The preparation of the pleadings in this case were not without difficulty because of the necessity of deciding whether to declare on absolute liability or negligence. We decided upon an action based on negligence and the case was tried on that basis.'
At the close of the charge the following points were submitted to the Court by the Plaintiff and affirmed:
'1. The general rule is that one must use his own property in such a way as not to injure another's land, and if the plaintiff shows a negligent act done or committed by the defendant, plaintiff may recover.
'2. If the jury find from all the evidence that the defendant by a negligent act altered the natural conditions of the ground so as to change the course of the water, or negligently concentrated it at a particular point, or negligently increased its volume by artificial means, it is liable for any injury caused thereby.'
"The question which now arises is whether the plaintiff, having pleaded his case, and submitted it upon the ground of negligence, and having assumed the burden of proof, can now, in effect, change the action to one of absolute liability, and secure a new trial based upon the inadequacy of the Court's Charge. We conclude that he cannot.
"In the similar case of Kramer, Admr., v. Pittsburgh Coal Co., 341 Pa. 379, it was held that a plaintiff whose action for damages to real property is pleaded and tried upon the theory of the defendant's negligence cannot, after an adverse verdict, ask for a new trial upon the ground that the defendant's conduct amounted to a nuisance, and that the case should have been submitted to the jury on the doctrine of absolute liability for nuisance.
"Plaintiff's position is now raised for the first time, upon oral argument on the motion for a new trial. It is too late to raise this question: Penna. R. R. Co. v. Pittsburgh, 335 Pa. 449, 464; Weiskircher v. Connelly, 256 Pa. 387, 389.
"The plaintiff having pleaded and tried his case solely as one of negligence could not expect to have it passed upon as one of absolute liability generally, irrespective of negligence. We conclude that the motion must be denied."
Carmen V. Marinaro, for appellant.
J. C. Brandon, with him Brandon, Millar, Rockenstein MacFarlane, for appellee.
The judgment of the court below is affirmed on the opinion of Judge GRAFF, specially presiding.