PARis PURITY COAL CO. V. PENDERGRASS. 1031 PARIS PURITY COAL COMPANY V. PENDERGRASS. • • 4-4593 Opinion delivered April 19, 1937. I.: MINES AND mINERALs—DAmAGES—PLEADINS.=-Amendment of corn-: plaint, in an action against , appellant for damages to appellee's land , by mining , coal ; and causing the surface to sink, by striking .out, the words "carelessly and negligently", did not . change the calise of action, sinee whether the mining 'vim done negligently • ' or not was immaterial: ' • 2. !MINES AND mINERALS ,77 -S1JBJACENT, SUPPORT.—It. is' no defense, in an . action, against n a mining company to recover for an injury to the surface, that the mining operations were conducted with due care and skill or in the moit approved manner; nor can -the violation of the duty be justified on the ground of custom nor the • . right claimed: by prescription. 3. , INSTRUCTION—MEASURE OF DAMAGEs.—Where, in an action against . a mining company for damages to plaintiff's land by causing the surface to sink, the evidence showed that the damages were per-• manent atul that the cost of repairs would be more than the-amount of the judgment, an instruction on the measure of dam-.. ages held, not to.have resulted in prejudice to, appellant. . Appeal -from Logan Circuit Court; Northern District ; J. 0.Xincannon, Judge';' 'affirmed. J. 'M. Smallwood; for appellant. • Evans (6-Evans arid Pal-tali/a (6 Agee, for appellee: • MEHAFFY, J. This 'action :was instituted in the cir-edit court of Logan county,' Arkansas, , by Zone Pender-grass against the l Paris Purity Coal Company and. others on May 14, 1930. A.tpellee charged in her complaint that
1032 PARIS PURITY COAL CO. v. PENDERGRASS. [193 she was the owner of the surface of the land described in the complaint, and the appellant had carelessly and negligently so mined and removed the coal as to make the surface above the mine break, sink and subside, and had carelessly and negligently. failed to properly secure the roof and working places therein, and asked judgment in the sum of $3,000. The appellant filed answer denying .the allegations of the complaint. Thereafter, on January 8, 1935, the, appellee asked leave to amend her complaint, to strike from her complaint the words "carelessly and negligently" wherever the words appeared in said complaint. Permission was given to make this amendment to. the complaint. The appellant filed a demurrer to the amended complaint, stating that the complaint on its face shows that it was barred by the statute Of limitations, and stated that the amended complaint stated an entirely new cause of action from that stated in the original complaint, and that the amended complaint was filed more . than three years .after the . damage had been asCertained, and . after the original complaint had been filed. The demurrer to the amended complaint was overruled, and appellant filed answer. The case was tried and a verdict and judgment rendered for $500.. This appeal is prosecuted to reverse said judgment. . The facts as to appellant mining coal and as to the • damage done to the surface of the land, are practically undisputed. It is first contended by the appellant that the court erred in .not holding tbat the amended complaint was barred by the statute of limitations. The amended complaint did not state a new cause of action. • The cause of action stated in the original complaint was .that the appellant began and continued the operation of. removing and mining the coal from under the surface of her said land, and mined and removed said coal from under ap-pellee's land, home and premises so as to make the surface above the mine break and sink, and thereby completely drained, destroyed and ruined appellee's well . and
ARK.] PARIS PURITY COAL CO. v. PENDERGRASS. 1033 water supply so as to permanently deprive her of such water supply -on said-premises and canse her home and other dwellings on said premises to sink and to break- the floor ' s and- walls and flues and chimneys; and to practically ruin and render same unusable and unsafe, and said lands to become so sunk and broken as to render same untillable, and otherwise injuring and 'damaging appellee's property. ' The cause of action stated . both in the original Coni-plaint, and in the amended Complaint waS -the mining of coal and causing the surface to sink, and whether it was done negligently or not was immaterial. The cause of action was not changed.' . An. amendment of a : declaration, petition or coin, plaint which - sets : . uP no new . cause of action or claim, and makes no new demand relates back to the commence-inent of the action,. and the running of the statute against the claim so pleaded is arreSted at that point This , is in substance the language of the statute in some jurisdic-tions, and the rule applies, althOugh the limitation is by contract and not by statute; and coUrts have been liberal in allowing amendments expressly to save a , case from the'statute of limitations when the , cause of action is not totally changed." , 37 C. J. 1068 et seq. This court 'has held that . the allegation Of careless ness and negligence-is unnecessary: - The court recently said: f' There is ample authority to the effect that under such circumstances the landowner may recOver damages without proof of negligence, even though negligence iS laid in the complaint.", McGeorge v. Henry and Jami-son, ante, p. 443, 101 S.- W. (2d) 440. - "The pleadings are the written - stateMents, by 'the parties, of the facts constituting their respective claims' and' defenses. " Crawford ,8-5 Moses ? Digest, § :1183. The facts con . stitirting the claim in the case at bar, are that the aPpellant tOOk the coal out from under the surface of 'appellee's land and caused'if to sink and dam-. age the land and-dwellings. This WO her canse of action. It was not changed by the- amendment.
1034 PARIS PURITY 'COAL CO. v. PENDERGRASS. [193 • Again our statute provides that where the variance is not material, the court may direct the fact to be found according to the evidence, and may order an immediate amendment. Section 1239 of Crawford & Moses' Digest reads as follows: "The court, may at any time, in furtherance of justice, and on such terms as may be proper, amend any pleadings or proceedings by adding or striking out the name of any party, or by correcting a mistake in the name of the party,. or a mistake in any other respect, or by, inserting other allegations material to the case ; or when the amendment does not change sttbstan-tially the claim or defense, by conforming the pleading or proceeding to the facts proved." ., Appellant calls attention to the case of American Bonding Company v. Morris, 104 Ark. 276, 148 S . :W. 519. The court in that case said: '"Ou , r katute , liheral , and pernaits the court in , its diicretiOn, fot good canse.ShoWn, to extend the time , for filing ' an AnsWer heyond that limited by laW. * It is likewise liheral relative .te amendinent of pleading 's, * ** 4 permit-tit* ceitain ments to be made at any time in furtheranee of jnstice, even during trial, when 'they 'do mit change'snbStantially. the claim or defense. !The whole :matter, • hoWeVer, is within the discretion of the . trial conri,' whieh Must; cle pend largely upon the special circumkance's Of eaelt case, and in reviewing the exercise of discretion-in grahting or refusing leave to amend; this -court does not reverse the action of the trial cOnre unless it affirniatiVely . appears that there was -a plain 'and manifesrabnse of discretion." . , H ; Appellant next calls attention tO the caSe Of Wdtersj Pierce Oil Co. v. Bridlv. ell, 1 1W. Ark. 345, : 147' S. 'W.: 64 Ann. Cas. 1914B, 837. , There is nothing in that case that supports the contentions of the appellant. , Appellant calls ättentión next to the caSe of Western/ Coal & Mining Co. v. Yodng, 188 Ark. 191, 65 S. W.; (2d) 1074. In this case, there was no questioi . of amendment to pleadings, but it was contended for a reversal because the • actions were barred by the three-year: statute of limitations. Crawford & Moses' Dig.; § 6950: „
ARIL] PARIS 'PURITY' 'COAL CO. V. PENDERGRASS. 1035 •' If this had been a new Cause of action, it would have been barred by 'the statute of limitation8. "At least •as long . as the facts alleged as the basis of recovery remain the saine, so that a new Cause of action is not introduced, a pleading may be amended so a g to vary, .enlarge, or modify the extent of ihe relief songht, and if relief •is prayed : for which the facts-do not warrant, the pleading may be amended so as to demand appropriate .relief." 49, C.J.'525: It is next contended that the coUrt erred in giving reqUe'sted instrnetiens Nos. 2 and 3. The objeCtiOn tO NO. 2 is that it overlooks the Contention of the appellant that the weight Of the hmise contributed to the gubsidence of the * surface, and that it put the burden on' apPellant shoW that suffiCient pillars were left to support the surface. .The same bbjeCtion was made to in-Striikien NO. 3, aS to''the 'Weight of the house, and:also the objection ' to' the stateMent 'in the instructibn that it Was not neeessarY:for the apPellee to recoVer that the proof shOW that aPpellant was neglikent in removing the coal. The court did not err in giving these instructions. One Who e „ xCavates on h . is' own land,,so that, by the opera- tion of the natural and Ordinary causes which he takes no precaution to , guard against, the land of another falls into ihe excavation, is liable to the latter for the , injury to the land in its natural condition ' , hut not for injuries to huildings or improvements, Without proof of actual. negligence.. The adjacent' owner, who erects buildings. or other struCtUres oi .1 the land, is presumed to take necessary precition to protect such buildings ; but when one excavates . where another owns the surface, a different rule applies. The rule is g tated in 40 C. J. 1196 as follows : " The right to subjacent support is absolute, and it is no defense in an action to recover for an injury to the surface that the mining operations were conducted with due care and skill, or even in the most approved manner. Nor can the violation of the duty be justified upon the grounds of custom, a custom to that effect being unreasonable, and for the same reason no such right can be
1036 PARIS PURITY COAL CO. v. PENDERGRASS. [193 claimed by prescription. . And a license from the crown to dig minerals, in granted land, where the mines are excepted . out of the grant, will not justify an injury to the surface soil.. Where one. grants the minerals ,underneath the surface, with the privilege of mining such minerals, the .. support of the surface • is a part of the estate-reserved in the grantor, and the rights of a lessee are not enlarged by a covenant that the mine is to be worked in tbe most economical method and in accordance with the laws of the state, while on the other hand if one sells the. surface, reserving the minerals; the grantor in removing the minerals re§erved must leave or proVide sufficient support for the surface , io prevent its subsidence, unless, in either case, there has . been an express-waiver of such right, or the intention . to' waive such right .clearly,appears from the use of apt words." , . It is n . ext ce . n • t . d . e e n d • by the apPellant that the . conrt erred in giving instruction No. 4 on the Measure. ages. The objection is that the evidence . shows that the damage was reparable, and must be for the cost of repairs. The evidence in this case shows that the damages. were permanent, and we :think it also shows that the cosi of 'repair would be , more than the amount , of the, judg-nient. It, therefore, appears that the instruetion could riot have resulted in any prejudice to the apiiellant.. "Where an instruction which is open to criticisni has: been given bY a trial court to 'a jury, 'and the 'record dis-- closes that' the instruction could net have resnited in prejudice to the complaining party, it is error for a re-Viewing court to reverse the judgment of the trial court upon that ground." -Ohio Collieries . v. CoOke, .107 0. at. '238; 140 N. E. 356. We find no error, and the judgment ' is affirmed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.