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E. 640; "It is quite probable that the gen- | 74 Md. 36, 47, 28 Am. St. Rep. 219, 21 Atl. eral interests of Buffalo and of the larger 690, 693, says: “And so the condemnation public are promoted by this appropriation of private property for a highway subjects of the street, but it by not means follows the land so taken merely to an easement in that a lot owner whose property is injured favor of the public, and does not devest the should bear the loss for the public benefit. owner of the fee.

Planting teleThe power conferred by the charter of phone or telegraph posts upon a public highBuffalo upon the common council to 'permit way in the country is an appropriation of the track of a railroad to be laid in, along, private property, and unlawful, unless the or across any street or public'ground,' right to do so is acquired by contract or conmust be construed as subject to the qualifi- demnation.” After discussing the rights of cation that no property rights of abutting the public in the street, the court proceeds owners are thereby invaded.” In the same to say: "Subject to these and other like case Gray, J., concurring said: “Here the rights of the municipality and the public object was to subserve the railroad use, and to the use of a street for street purposes, the the appropriation .. of this embank owner of the fee in the bed of the street ment is practically exclusive. The street possesses the same right to demand compenwas subjected to a new use, with conse- sation for additional servitudes placed therequences as direct, in the permanent depri- on that the owner of the bed of a highway vation of the abutting property owners' ap- in the country is entitled to. If, then, the purtenant easement, as though the railroart fee in the bed of the street be in the appellee, was operated in front of his premises upon the planting of the pole was an additional a structure physically incapable of other servitude imposed upon her land, for which uses.” In Eels v. American Teleph. & Teleg. she could claim compensation, and the act Co. 143 N. Y. 133, 25 L. R. A. 640, 38 N. of assembly could not deprive her of it.” E. 202, Peckham, J., says: "We think In Broome v. New York & N. J. Teleph. Co. neither the state nor its corporation can ap- 42 N. J. Eq. 141, 7 Atl. 851, the chancellor propriate any portion of the public high says: “In order to justify the defendants way permanently to its own special, continu in setting up the poles, it is necessary for ous, and exclusive use by setting up poles them to show that they have acquired the therein, although the purpose to which they right to do so, either by consent or condemare to be applied is to string wires thereon, nation, from the owner of the soil. The and thus to transmit messages for all the designation by the city or town authorities public at a reasonable compensation. It of the streets where the poles may be set up may be at once admitted that the purpose is not enough.” The same view is held in is a public one, although for the private Board of Trade Teleg. Co. v. Barnett, 107 gain of a corporation, but the Constitution 11. 507, 47 Am. Rep. 453. That was an provides that private property shall not be action of trespass, as the one before us. taken for public use without compensation it appeared that, in addition to putting to the owner. Where land is dedicated or the poles upon the highway, in which plaintaken for a public highway, the question is, tiff owned the fee, the employees of the com. What are the uses implied in such dedi. pany "cut away the hedge because it was cation or taking? Primarily there can be in their way, and they also cut down two no doubt that the use is for passage over hedge trees.” The court said: "The posithe highway. The title to the fee of the tion taken by defendant is that the state highway generally remains in the adjoining can rightfully, as it has done, authorize the owner, and he retains the ownership of county board to permit defendant to conthe land, subject only to the public ease- struct its line of telegraph upon the highment.” To impose any different or addi- way without the consent of the abutting tional burden without compensation cannot landowner; that it imposes no new or addibe done by the legislature, either directly, tional burden thereon, and that when the or by granting the power to a city. We public acquire an easement over land, for a cannot assume that it was intended to do so. compensation fully made, the public obtain Such intent is not to be gathered from the all the rights the landowner had, and the statute. White v. Northwestern North Car- state may authorize any use of it not inconolina R. Co. 113 N. C. 610, 22 L. R. A. 627, sistent with its use as a highway.” After 37 Am. St. Rep. 639, 18 S. E. 330. The stating the contention of the landowner, the question is exhaustively discussed in Story court says: “The latter position is the one v. New York Elev. R. Co. 90 N. Y. 122, 43 best sustained by authority, and rests on Am. Rep. 146.

sounder principles.

The principle There is some conflict of judicial opinion is, neither the state nor a municipal corpoin respect to what constitutes an additional ration has any rightful authority, under the burden. The supreme court of Maryland, in Constitution, to grant away the private Chesapeake & P. Teleph, Co. v. Mackenzie, property of the citizen; and if corporatione


quasi public, in the exercise of the right i portunity to be heard in defense of his of eminent domain with which they are rights. No person shall be deprived of his clothed by the sovereign power of the state, property, except by the law of the land, or seek to appropriate it so that they may have due process of law, which has been defined a benefit therefrom, every principle of jus to mean the right to be heard before he or tice demands that they should make just his property is condemned.. This sacred compensation, whether the property taken right is binding upon every department of

is of little or great value. But. the government, and all of its agencies, inaside from all considerations of right and cluding municipal and private corporations. justice, the Constitution has so declared, and While it is held in Tate v. Greensboro, 114 its mandate in that respect may not be dis- N. C. 392, 24 L. R. A. 671, 19 S. E. 767, regarded.” Indianapolis, B. & W. R. Co. that the power to remove shade trees, where v. Hartley, 67 Ill. 439, 16 Am. Rep. 624; their removal is necessary for the use of Willis v. Erie Teleg. & Teleph. Co. 37 Minn. the street as a public highway, may be con347, 34 N. W. 337; Stowers v. Postal Teleg. ferred upon the street committee, it would Cable Co. 68 Miss. 559, 12 L. R. A. 864, 24 be more in accordance with due and orderly Am. St. Rep. 290, 9 So. 356; Joyce, Electric procedure to do so only after due notice to Law, 321. That shade trees may not be the owner, and a hearing before the legis. removed, except when necessary for the use lative body of the city. The tree was cut of the street by the public, is well settled. on March 21, 1901. This action Lewis, Em. Dom. § 132. There are some au- brought on July 5, 1901. On September 16, thorities to the contrary, but we think the 1904, the board of aldermen adopted a resview taken by those cited the sound one. olution reciting that the action of three

We have no hesitation in holding that, as- corporations named, “or one or more of suming that the board of aldermen of the them, in cutting down and removing the city of Asheville had met and formally tree in front of the place then owned and granted to the defendants authority to re occupied by B. C. Brown,” etc., "some years move the tree, finding that its removal was ago, in putting a line of street railway and necessary to put up its poles and wires eith- appurtenances upon said street in front of er for the electric light or street railway up. said property, or replacing thereon certain on and along the sidewalk, such action light wires, be and is hereby ratified and would not have justified the act of defend-confirmed, said tree having been so cut and ants. It was not within the power of the removed by direction of the proper authoricity to deprive the plaintiff of his property ties of the said city.” It is evident that at for such purpose without compensation. the time of the passage of this resolution We find, however, no averment or evidence the board were not certain to what corporathat it was necessary to remove the tree. It tion the power was given to cut the tree, or is suggested that it was more convenient to for what purpose it was conferred. It is not place the poles and string the wires with suggested in the resolution that it was necthe tree out of the way. This falls far essary to remove the tree, or that it intershort of the essential conditions upon which fered with the street railway or the light private property may be taken, or burdens wires. Indeed, it is apparent that the imposed upon it. The right of eminent board knew but little about the matter domain has been so freely conferred upon which they “ratified and confirmed.” corporations, upon the mere suggestion that We have discussed the case upon the astheir business is in some way connected with sumption that the tree was on the sidewalk. service to the public, that we are in danger The testimony shows that, while the conof forgetting that it is one of the most del. demnation took place in 1892, the land had icate and dangerous powers conferred by the never been used as a sidewalk. The plainpeople upon their government. Public tiff testified without contradiction that he franchises have been so generously and lav had at the time the tree was cut lived at ishly conferred and so freely used without the place six years, and “there had never compensation that those who wish to enjoy been any sidewalk there.” The tree was rethem forget that one of the chief ends for moved in March, 1901, and the hole out of which government is created and taxes paid which it was taken, "about 10 feet square,” is the protection of private property, and was open at the time of the trial. The tes. then only with compensation. The record in timony further shows that the tree was cut this case shows that a valuable right of by the superintendent of the defendant comproperty, affecting the comfort, health, and nanies while Mr. Brown was away from welfare of the citizen and his family, has home; that, when his wife phoned him, and been taken, upon the suggestion of a pri. he directed her to forbid the removal of the vate corporation to the superintendent of tree, the parties gave no heed to her restreets, without inquiry by the board of quest; and that in some way the wires conaldermen, notice to the plaintiff, or any op- necting the phone were cut.

We are impressed with the wisdom of the can complain. We are of the opinion that words of Judge Peckham in concluding his the allegations were sufficient to entitle the opinion in Eels v. American Teleph. & Teleg. plaintiff to demand exemplary and puniCo. 143 N. Y. 133, 25 L. R. A. 610, 38 N. E. tive damages, and the testimony shows am202. Referring to the argument that cases ple grounu upon which to base the claim. of this character should be decided with ref- In the entire transaction there was on the erence to the wants of an advancing civili. part of the defendants a painful disregard zation, which is doing so much to render of the rights of the plaintiff. While extenlife more comfortable and attractive, he sive powers and wide discretion are given says: “Let the defendant pay the owners municipal authorities for the discharge of for the value of the use it makes of the land their duty to the public, it should always outside and beyond the public easement in be borne in mind by those who serve in the highway, and the necessity of the broad public positions that in our system of gover decision is done away with. It has the ernment there is no room or place for arbipower to take the land upon making compen- trary power. The law which is a rule of sation, and hence the refusal of an owner action for the citizen is equally so for the will not stop the proposed undertaking.” | official. Every man, when his right of per

We have carefully examined the record son or property is invaded, has a right, and and the exceptions to His Honor's rulings. it is his duty, to demand “quo warranto.” We find no error of which the defendants The judgment must be affirmed.


YOUGHIOGHENY RIVER COAL COM- | 27 L. ed. 531, 2 Sup. Ct. Rep. 536; BuchanPANY, Appt.,

an v. Andrew, L. R. 2 H. L. Sc. App. Cas.


The object of the bond was to indemnify

plaintiff against liability for damages, and (211 Pa. 319.)

it should be interpreted so as to give that

indemnity, unless the words prevent such The leaving of surface supports is not construction. within a provision in a sale by the

Jones, Construction of Contracts, pp. 355, owner of coal in place of the vein, which

359. is held subject to the duty of supporting the surface, by which he undertakes to indemnify To enable the court to say that the words the purchaser for any liability for any “skilful and careful mining,” which have damage which may result to the surface “by

a definite, certain meaning of their own, reason of the skilful and careful mining and contemplate surface support, it must have taking away of the coal,” but the words refer evidence of usage giving them such meansolely to the manner of working the vein.

ing. (Broron and Dean, JJ., dissent.)

Lewis v. Fothergill, L. R. 5 Ch. 103;

Buchanan v. Andrew, L. R. 2 H. L. Sc. App. (April 10, 1905.)

Cas. 296.

In construing grants or reservations of A

PPEAL by plaintiff from a judgment of the Court of Common Pleas, No. 2, for face owner is entitled to support for his

lands and minerals, the fact that the surAllegheny County in favor of defendants in lands in their natural state is a controlling an action brought to enforce a contract of

circumstance. indemnity. Reversed.

Coleman v. Chadwick, 80 Pa. 81, 21 Am. The facts are stated in the opinion.

Rep. 93; Jones v. Wagner, 66 Pa. 429, 5 Mr. John O. Petty, for appellant: The words “skilful and careful mining" 172 Pa. 441, 33 Atl. 690; Humphries v.

Am. Rep. 385; Pringle v. Vesta Coal Co. refer only to the manner of working the Brogden, 1 Eng. L. & Eq. 241; Hill v. coal.

Pardee, 143 Pa. 101, 22 Atl. 815; Carlin v. The general rule for the reading of the Chappel, 101 Pa. 351, 47 Am. Rep. 722 ; words of a contract is that they are to be Matulys v. Philadelphia & R. Coal & I. Co. taken in their ordinary and primary sense.

201 Pa. 70, 50 Atl. 823. Jones, Construction of Contracts, $ 16;

Messrs. John D. Brown and Shiras & Merriam v. United States, 107 U. S. 437, Dickey for appellees. NOTE.- As to liability for damages to surface

Mestrezat, J., delivered the opinion of owner from the removal of the support of his land by mining operations, see, in this series, the court: Noonan v. Pardee, 50 L. R. A. 410.

The defendants were the owners of cer

tain coal lands in Westmoreland county, remove said coal in the manner contemplatconveyed to their predecessor in title in ed by said agreement, which mining and re1862, by the following grant: "All the main moval caused a subsidence of certain surworking vein of coal underlying the farm face lands, owned by one Richard Greenon which party of the first part resides, awalt, overlying a part of the same, situate in Sewickley township, Westmore- and by reason of such subsidence certain land county, Pennsylvania, etc.

springs on the surface land of said GreenWith the right to take and curry away said awalt were injured, an upper vein of coal, with the privilege to air and drain his coal damaged, and certain buildings thereon openings while taking out, and for any other cracked;" that the verdict against it purpose that he, or his assigns, may need in favor of Greenawalt was “recovered upon said openings for.” After the conveyance the allegation and proof that the Youghioof the coal, the owner of the land, by deed | gheny River Coal Company had not supdated March 24, 1871, conveyed the tract ported the surface lands of the said Greento one R. G. Greenawalt, with the following awalt in its mining operations.” The dereservation: "The said parties of the first fendants demurred to the statement, on the part reserve all of the now worked 6-foot grounds that the declaration admits the vein of stone coal, also the right and privi. lack of due care and skill in the mining perlege for themselves, their heirs, and as- formed by plaintiff, and that “the admissigns, of digging, mining, and carrying sion in said declaration that there had been away said stone coal.” In 1892 the defend- a recovery against the plaintiff for failing ants sold and conveyed said coal to the to afford support to the overlying surface Youghiogheny River Coal Company, the is an admission that the plaintiff in this plaintiff, and gave to the company an obli- tions in giving proper support to said surgation, dated February 29, 1892, condi- action had not used all ordinary precautioned, inter alia, that they would "well face." The court below sustained the deand truly protect and indemnify said Youg- murrer, and the plaintiff has appealed. hiogheny River Coal Company from any In support of its appeal, the plaintiff comliability for any damage which may re- pany contends that the words "skilful and sult to the surface of the tracts of lands careful mining and taking away of the said overlying the coal land purchased by said coal,” in the obligation or agreement on coal company from said obligors and which this suit was brought, refer to the others, or to improvements thereon, by rea- method and manner of working the coal, son of the skilful and careful mining and and that failure to leave sufficient coal in taking away of the said coal.” Soon after place to support the overlying surface is not the purchase of the coal land, the Youghio. unskilful and careless mining. The defendgheny River Coal Company took possession ants' position is that "skilful and careful of it and began mining operations. Sub- mining and taking away of the said coal,” sequently R. G. Greenawalt, the owner of as used in the obligation of the defendthe tract of land, except the coal conveyed ants, is referable to the support of the surto the coal company, brought an action face, and that “the proper support of the against the coal company for damages, alleg- surface is a part of the skilful and careful ing that it had so carelessly, negligently, mining and taking away of said coal.” and unskilfully conducted its mining oper:

It is therefore claimed by the defendants ations as to cause the surface of his land that the averment in the statment that the to break and subside, resulting in injury plaintiff company had failed to support the to the land, the clay, and upper coal vein surface is an admission of lack of care and therein, and improvements thereon. The

skill in mining and removing the coal un

der the Greenawalt surface. case was tried, and resulted in a verdict and judgment in favor of Greenawalt. land resulting in the ownership of the sur

There may be a horizontal division of Thereupon the present action was brought face by one person and the ownership of the by the Youghiogheny River Coal Company subjacent vein or seam of coal by another on the obligation of the defendants, referred person. When there has been a severance to above, to recover the damages and ex- of ownership of the surface and the coal, penses which the coal company was com

the owners of the respective estates hold pelled to pay by reason of the suit brought them as estates in land, and, of course, the against it by Greenawalt. The statement title and rights of each depend upon his avers that the “Youghiogheny River Coal conveyance. If the owner of the whole fee Company entered into possession of the conveys the coal in the land in general same (coal], and proceeded in a careful and terms, as in this case, retaining the residue skilful manner, according to the usual and of the tract, the purchaser acquires the customary methods of mining practised in coal with the right to mine and remove it, the bituminous coal district, to mine and provided he does so without injury to the

superincumbent estate. His estate in the The defendants being required "to leave coal, like that of the owner of the surface, every pound of coal untouched under the is governed by the maxim, Sio utere tuo land” if necessary to support the surface ut alienum non lædas. The owner of the (Noonan v. Pardee, 200 Pa. 474, 55 L, R. A. surface is entitled to absolute support of his 410, 86 Am. St. Rep. 722, 50 Atl. 255), what land, not as an easement or right depending was the purpose and intention of the parties on a supposed grant, but as a proprietary in giving and receiving the obligation in right at common law. Carlin v. Chappel, question? We must assume—what the ex101 Pa. 348, 47 Am. Rep. 722; 2 Snyder, perience of everybody teaches--that the parMines, g 1020. Support for the superincum- ties were prompted by the motive of self-inbent estate is of natural right, and is part terest in this transaction. The price which of the estate reserved to the owner of the the defendants would demand and the plainsurface. Coleman v. Chadwick, 80 Pa. 81, tiff would agree to pay would necessarily de21 Am. Rep. 93. And this right which pend upon the amount of coal which could the servient estate owes to the dominant be mined and removed from the land. estate does not depend upon whether the When, therefore, the defendants agreed to mining operations are conducted skilfully sell and convey the coal, the basis upon or negligently and carelessly. Pringle v. which they fixed the selling price was the Vesta Coal Co. 172 Pa. 438, 33 Atl. 690; quantum of workable coal. This, in turn, Noonan v. Pardee, 200 Pa. 474, 55 L. R. A. would depend upon the depth of the coal un410, 86 Am. St. Rep. 722, 50 Atl. 255. In der the surface, and the character of the the Pringle Case it is said: “If the owner strata of stone and earth overlying it. It of the coal undertakes to mine and remove was under these circumstances that the deit, -as he has an undoubted right to do, – fendants executed and delivered to the plainand damage results to the surface, either tiff the obligation in question at or about (a) from negligence in conducting his min- the time of the delivery of the deeds. The ing operations, or (b) from failure to prop- defendants, believing and relying upon the erly and sufficiently support the surface, or sufficiency of the superincumbent strata to (c) from both these causes combined, the afford absolute support to the surface, were surface owner is entitled to recover compen- willing to assume responsibility for the sation for such injury as he may show he breakage of the surface in mining and rehas sustained.” And this is the law of moving all the coal. This made certain the England, whose decisions we have followed amount of coal accessible for mining and in holding the surface owner entitled to ab- necessarily greatly enhanced the value of solute support for his estate. Harris v. the tract to the purchaser. By their deeds Ryding, 5 Mees. & W. 60; Humphries v. the defendants conveyed to the plaintiff comBrogden, 1 Eng. L. & Eq. 241. In this pany the coal but, under the servitude imlast case, Lord Campbell, Ch. J., delivering posed on their title by the laws of the state, the opinion of the Queen's bench, remarks: the purchaser was restricted as to the quan“It seems to have been the unanimous opin-tity he could mine and remove to an union of the court (in Harris v. Ryding] that certain amount, or possibly, to no part of there existed the natural easement of sup- the entire body of the mineral. To remove port for the upper soil from the soil beneath, this uncertainty and contingency, and to and that the entire removal of the inferior secure to the purchaser "all the main strata, however skilfully done, would be ac- working vein of coal underlying the tionable if productive of damage by with farm,” the defendants executed and dedrawing that degree of support to which the livered the obligation in question, and owner of the surface was entitled; the duty thereby obligated themselves to protect and of the owner of the servient tenement for- indemnify the plaintiff company “from any bidding him to do any act whereby the en- liability for any damage which may result joyment of the easement could be disturbed.” to the surface of the tracts of land overlying Under the titles of the respective parties, the coal land purchased by the said coal it is clear that Greenawalt was entitled to company from said obligors and others, absolute support for surface overlying the or to improvements thereon, by reason of the plaintiff's coal, and that, if the company de skilful and careful mining and taking away prived him of it in mining the coal, it was of the said coal.” The purpose and effect of liable for the consequent injury to him, this obligation is therefore most obvious and regardless of whether the mining opera- manifest. The title of the coal company, actions were conducted skilfully or negli- quired by its deeds, gave it the entire body gently and carelessly. His right to actual of coal, subject, however, to the absolute support for the surface of his land was support of the surface, or, in the language of a natural and property right, and did not the obligation in question, to "any liability depend upon the manner in which the sub- for any damage which may result to the jacent coal was removed.

surface of the tracts of land overlying the

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