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Tankersley v. Peabody Coal Co.





APPEAL from the Appellate Court for the Fourth District; heard in that court on appeal from the Circuit Court of Christian County; the Hon. RAYMOND O. HORN, Judge, presiding.


Plaintiffs brought an action for damages in the circuit court of Christian County against the defendant, Peabody Coal Company, for alleged removal of subjacent support creating subsidences in farm land, and for loss of crops. The jury returned verdicts of $8,000 and $1,200 in favor of plaintiffs Tankersley and Norville, respectively. Defendant filed a motion for judgment notwithstanding the verdicts, which was denied, but made no motion for a new trial. On defendant's appeal the Appellate Court reversed the judgment on the ground that there was no competent evidence to support the verdicts under the proper theory of liability. (45 Ill. App.2d 101.) We have granted plaintiff leave to appeal.

This cause presents as a matter of first impression in this court the question of whether a coal mine operator is liable for surface subsidence over areas mined only by his predecessor in title, where there has been no express assumption of such liability, and the predecessor is a wholly unrelated business entity.

Plaintiffs George Tankersley and John Norville are the owner and tenant, respectively, of 160 acres of land in Christian County. Prior to 1916 the subsurface mineral estate thereof was owned by Stonington Coal Company which operated an underground coal mine extending below the land in question. In 1916 Stonington conveyed the mine to the defendant, Peabody Coal Company, a wholly unrelated corporation. Peabody then mined coal in some areas under the premises until 1924, at which time the mine was closed down. In buying Stonington's interests, Peabody did not undertake to assume any of Stonington's liabilities, and Stonington Coal Company has long since been dissolved. Plaintiff Tankersley bought the farm in 1935.

The complaint upon which the case was tried charged that Peabody was liable for subsidences in the plaintiffs' land caused by the operations of Stonington as well as its own mining operation. In their answer, and at the pretrial conference, counsel for defendant objected to this theory, contending that Peabody could not be held liable for any subsidence which occurred above areas which were mined out only by Stonington. Both parties asked the court for a ruling on this theory prior to trial and the court, in a statement for the record, ruled that:

"Both parties agree that there are not any clear cut authorities in Illinois to guide the Court in its decision in the matter, and each counsel stated their positions relative to the theories of the case; and in order to avoid a conflict throughout the trial, the Court, in an educated guess rules that the successor Peabody Coal Company, having assumed the responsibility of mining the remainder of the coal under the plaintiffs' lands would have assumed the responsibility to have maintained the mine in a safe condition and therefore would be liable for all subsidence covering the land; and to avoid the necessity of the defendants to object to each question that might be asked concerning this question, the Court hereby reserves the defendant's defense on this question throughout the trial to each question that might be asked, without their making a specific objection to the question."

At the trial plaintiffs introduced a topographical map of the farm showing all alleged subsidences, designating six areas. Both parties introduced scaled maps of the underlying "Peabody Coal Company Mine No. 21", indicating the workings of Stonington and Peabody. It is undisputed that certain of the alleged subsidences are over areas mined exclusively by Stonington. There was also testimony introduced by the plaintiff as to the various values of the land before and after the subsidences; that at times water lay in depressed areas at various points on the farm as indicated on the topographical maps; and that the depressions were, in fact, subsidences due to the underground mining operations. Defendant offered testimony rebutting plaintiffs' claim that all the depressions were subsidences, which testimony seemed to indicate that only one or possibly several of the alleged depressions were in fact subsidences. Defendant, too, introduced testimony as to the value of farm land in Christian County and as to the value of the Tankersley farm before and after the alleged subsidences. All of the plaintiffs' testimony in regard to a decrease in the farm land's value was predicated on differences in value prior to the alleged subsidences and the value after all alleged subsidences. Both sides made motions for directed verdicts at the close of their opponents' evidence, which were denied.

The evidence on behalf of plaintiff Norville, the tenant, was limited to his own testimony as to acreage and price of crops lost in 1951 because of water lying in several of the designated areas, and as to another area developing later in 1955.

At the end of defendant's evidence, defendant's counsel made an offer of proof as to the difference in the value of the Tankersley farm as a result of depressions overlying only the portion of the underground workings which were mined by Peabody. Plaintiff objected to this offer on the ground, among others, that it was contrary to the initial ruling of the court. The court accordingly excluded the proof. Thereafter the jury returned verdicts of $8,000 in favor of owner Tankersley and $1,200 in favor of tenant Norville.

Defendant filed a post-trial motion for judgment notwithstanding the verdict on the grounds, essentially, that the only evidence as to the damages suffered by plaintiffs was predicated on all the depressed areas and not just those over the area mined by the defendant; that the evidence supporting plaintiff Norville's claim furnished no adequate basis for any award; and that, therefore, there was no competent evidence to support the verdicts because there was no evidence as to damages which was limited solely to the liability of the defendant. The motion was denied by the court on the basis of its pretrial ruling, and the fact that the court thought that, otherwise, there was sufficient evidence to support the verdicts.

Defendant appealed from this ruling, but before the Appellate Court could act thereon, it had occasion to rule on the same basic issue in the separate case of Buis v. Peabody Coal Co. 41 Ill. App.2d 317. In Buis, the Appellate Court, deciding the issue for the first time in Illinois, held that a coal company which has purchased coal and mine workings of another unrelated company, without expressly assuming such liabilities, is not liable for subsidences or sinking of land areas due to the mining of its predecessor in title but is liable only for subsidences and the resultant damages due to its own mining operations.

In view of its decision in the Buis case, the Appellate Court herein held that the pretrial ruling as to the extent of liability was erroneous. In addition, the court held that the evidence as to damages was incompetent because based on all alleged subsidences and not just those attributable to Peabody; and that since the tenant would be limited to recovery in the same areas of damage as would the owner, the competent evidence as to crop damage was insufficient to sustain the verdict of $1,200 in favor of Norville. Therefore, the Appellate Court reversed the judgment of the lower court.

Plaintiffs first contend that the rule in regard to liability of successor coal companies for subsidences over areas mined only by predecessor coal companies, as enunciated in Buis v. Peabody, and followed by the Appellate Court herein, is erroneous because it is contrary to basic principles of real-property law. However, the plaintiffs cite no case which supports their theory in this case. As the Appellate Court said in Buis at p. 323: "With coal mining having been going on for hundreds of years, and in the State of Illinois for nearly a century, it is strange that there are no decisions as to the liability on one coal company that purchases the unmined coal from another coal mining company, for negligence on the part of the original mining company. Mining companies have flourished and died. No assets remain and there is nothing remaining except the old coal passageways under the ground. Another company owns whatever rights to mine coal the original company once had. As in this case, in many instances forty years or more have gone by since the last active mining operation. To hold that the purchaser of the assets of the original coal company is liable for subsidence of the surface occurring forty years thereafter, or even twenty years thereafter, would be to throw the door wide open for a multitude of suits for surface subsidence. In this case, we must hold that Peabody Coal Company is liable for its own negligence, but not liable for any negligence of the Stonington Coal Company."

There is, in fact, a dearth of case law in the United States on this question, but the Supreme Court of Pennsylvania, a State well known for coal mining, in Noonan v. Pardee, 200 Pa. 474, 50 A. 255, possibly the only prior pertinent case, held that a mine operator is not liable for injury to the surface through default of his predecessor. Moreover, an annotation in 139 A.L.R. at 1269-70 states that: "The question of the liability of one operating mines for subsidences of the surface due to excavations made by his predecessor in title has been considered in several cases with the result that the courts have refused to hold the operator ...

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