The C. & H. C. & I. Co. v. Tucker.

time of the trial had not been heard from for over forty years, and her foster parents, James E. Woodbridge and wife, both of whom were dead; and the only proof of its terms was the declarations of Mr. Woodbridge, casually made to persons having no pecuniary interest in the matter, over forty years ago.

The judgment of the circuit court is reversed, and the petition dismissed at the costs of the defendant in error.

THE C. & H. C. & I. Co. v. TUCKER.

Mines and Mining-Pollution of Streams -Riparian Rights -Negligence.

In an action brought by a riparian owner to recover of a mining company, damages to his lands, and for polluting the water of a stream which runs through them, by depositing on its own lands, coal slack, dirt and refuse, in places from which the same had been washed down and on to the lands of plaintiff, the evidence showing substantial injury to have been produced thereby, that the deposits were made intentionally, and that such result might, at the time the deposits were made, have been anticipated by a person of ordinary intelligence and prudence, a right to recover is established, and it is not a defense to show that the operation of the mines, and the deposit and disposal of the slack, etc., was conducted in the mode in general practice in the operation of similar coal mines in the surrounding mining districts, and that such deposits were made without malice, and upon the only feasible place or places the company could deposit the same, and carry on the business of mining coal.

(Decided January 13, 1891.)

ERROR to the Circuit Court of Hocking county.

For an understanding of the points decided, the following statement of facts will be found sufficient.

On April 24, 1886, John H. Tucker, defendant in error, commenced an action in the Court of Common Pleas of

The C. & H. C. & I. Co. v. Tucker.

Hocking county against The Columbus & Hocking Coal & Iron Company, seeking to recover damages for injury to his lands by reason of the acts of the company. Among other things, the petition alleged that the defendant is an Ohio corporation; that the plaintiff is the owner of a tract of land through which flows a stream called Monday creek, whose channel, prior to the wrongs complained of, had always been sufficient to hold and carry the water of the stream, except during unusual freshets. On the first day of March, 1883, and continuously thereafter, the defendant was and had been the owner and operator of large coal mines situate along Sugar run, and its tributaries, which run empties into Monday creek above and near plaintiff's lands. Since the above date defendant has continually and intentionally thrown and deposited, and knowingly permitted to remain, the coal dirt, coal slack, and coal refuse from its mines, in large heaps upon the immediate banks of said run and its tributaries, in such manner and with the purpose that the same should, during rains and freshets, be washed into said streams, and carried away thereby. Said slack, dirt and refuse, was, during the time mentioned, carried by Sugar run and its tributaries into and along Monday creek, filling up the channel thereof through plaintiff's farm, causing Monday creek to overflow its banks, inundating plaintiff's lands, covering about seven acres thereof with slack and refuse, and rendering it valueless. Also, destroying a valuable spring, rendering about nine acres of the lands swampy and unhealthy, and befouling and poisoning the water in Monday creek, thus rendering it unfit for stock.

The defendant, by answer, denied that it deposited its slack and other refuse on the margin of Sugar run, or in any other place, or permitted the same to remain on the bank of said stream, for the purpose of having it washed away by the stream. It denied specifically the allegations of damage to plaintiff by reason of the coal slack and other refuse. It averred that the mining at and operation of the mines, and the deposit and disposal of the slack and all refuse, was conducted in a prudent and careful manner, and in the mode in

The C. & H. C. & I. Co. v. Tucker.

general practice in the operation of all similar coal mines in the Hocking valley, and the surrounding mining districts near thereto, without malice or negligence, but with due regard to plaintiff's legal rights; and the deposits were made upon its own lands and upon the only feasible places it possibly could deposit the same, and carry on the business of mining coal.

Plaintiff, for reply, denied that the deposits were made in a careful and prudent manner, and without negligence, and that the deposits were made in the only feasible places compatible with carrying on the business of mining coal.

At the trial the defendant offered to prove "that the mines were properly located; that the operation of them was properly conducted; that the coal slack was deposited upon the land of the company without malice or negligence, in the ordinary way in common usage in the mining regions of the Hocking valley and its surroundings, and in the only possible and feasible way that the defendant could deposit the same." Objection to this was sustained, to which defendant excepted.

In varying forms of expression, the defendant requested the court to charge the jury that the defendant was a corporation duly empowered by its charter to mine coal, and the power to mine coal carried with it the power to do all things made necessary by the natural conformation of the land, or whatever else is included in the reasonable and proper use of mining lands. So that, if the jury should find that the defendant has confined itself to the necessary means of the lawful enjoyment of its lands; that it deposited its coal slack from its mines on its own lands, upon the only feasible place or places it could possibly deposit the same, taking into account the natural conformation of the land where the coal banks were located, and the slack was deposited in order to carry on its business of mining coal, and that the deposits were made without malice or negligence, and without intent to have it carried away by water, then there can be no recovery.

The C. & H. C. & I. Co. v. Tucker.

The court declined to charge as requested, but did charge, among other things, as follows:

"The first principal question that will demand your attention is, whether or not the defendant intentionally threw and deposited, and permitted to be thrown and deposited, the coal dirt, slack and refuse from its coal mines into Sugar creek, or in the immediate vicinity of such creek, with the purpose and intention of having the same, by operation of rain falling upon it, wash into the said creek. This is averred in the petition, and denied in the answer, and before the plaintiff will be entitled to a verdict at your hands, he must satisfy you by preponderance, or greater weight of the evidence, the truth of such averment. If he shall fail to satisfy you of the truth of this averment, that will be an end of your labors; for in that event your verdict must be for the defendant. For though the defendant says in its answer that it was guilty of no negligence or carelessness in the operation of its coal mines, and deposited its slack upon the only feasi ble place for its deposit, etc., and this is denied in the reply, yet the plaintiff can only recover because of the fact of his petition; and the only wrong conduct complained of in the petition is this intentional deposit of slack, etc., into the stream, or in such proximity thereto, that it was intended it should wash in said creek; and it is for the consequence of this wrongful conduct upon the part of the defendant that the plaintiff may recover.

"The question that you have to deal with is, as to whether the defendant, during the time complained of in the petition, did the acts therein charged, and whether injuries resulted to the plaintiff's land therefrom. You will observe the defendant must have intentionally, during the time complained of in the petition, March 1, 1883, to April 24, 1886, the date of filing the petition, deposited this slack or refuse from its mines in this creek, or at some place that it would naturally and necessarily be carried into said creek, or it must have intentionally permitted the same to be done. And by permission here is meant that having the power and control over the operation of said mines, and knowing said slack and re

The C. & H. C. & I. Co. v. Tucker.

fuse was being so deposited, failed and neglected to prevent the same.

"Where the slack and refuse is not thrown or deposited directly in the creek, but at a place where it is claimed it will be washed into such stream, the defendant's intention must be gathered from the circumstances under which the same was deposited. One is presumed to have intended the natural consequence of his act purposely done; and if this slack or refuse was deposited at such a place by the defendant, that it must naturally and necessarily be washed into the creek or stream, the intention that it would be so washed, must be presumed.

"This is a practical question, and the defendant must be held to the exercise of care and caution in the deposit of its slack, to avoid its being washed into the stream; and that is such care and caution that a man of ordinary prudence and intelligence-desirous of preventing such slack being washed into said stream-would exercise in making such deposits; and if it could not be deposited upon said land, without its being necessarily washed in the stream, as must be apparent to any man of ordinary intelligence, then it was the duty of the defendant not to cause its deposit upon said land. Upon the other hand the defendant cannot be held liable for any unusual result, or one that would not be anticipated by a man exercising ordinary intelligence, while depositing the slack upon his own land; and if injury resulted, from such deposit, to another, it must be held an accident for which the defendant is not responsible; so you will look into this testimony, and determine: Did the defendant deposit, or permit to be deposited, the slack and refuse from its coal mines in this stream, or did it deposit such slack and refuse at some place or places, whether upon its own land or elsewhere, from which it was its legal duty to know that such slack and refuse would be washed into the stream, and was such slack and refuse washed from thence into the stream."

To which refusals, and to the charge as thus given, the defendant excepted.

A verdict having been given for the plaintiff and judg