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

Penn. Coal Co. v. Sanderson, 113 Penn. St. 126, is a very recent and valuable decision on mining rights, and the question discussed involves exactly the same principles as are involved in this case.

It is admitted by the pleadings, because averred in the answer and not denied in the reply, that the mines of plaintiff in error were operated in the usual manner, and in accordance with the custom of the mining district in which they are located. To say that our mining operations were conducted in accordance with custom is to say they were conducted according to law. We offered to prove the custom, but the court refused to admit it. The court below very evidently considered that all of plaintiff in error's rights were to be construed under section 6925, Revised Statutes of Ohio.

We contend that this statute is of no avail in maintaining the issues in this case. The defendant in error must have made out a case by force of the common law of the land, to maintain a civil suit for damages, and the violation of such a statute against a crime could not add or take away anything from the rights of the parties to such civil action. Even if such a construction were possible, the statute is more reasonable than the court, for it makes the intent the criminal act, while the court says if the act was done, the intent must be presumed.

The right contended for all through this case is the right to the ordinary and natural use of our land for mining purposes, with a strict accountability for all damages arising from our negligence or malicious acts. We contend that our business is lawful; that the damage-as we offered to prove-was incidental and unavoidable, and not intended. It was so alleged in our answer and our proof was in support of those allegations.

The operations of coal mines, while in itself lawful, is authorized by statute. Section 3862, Revised Statutes.

We offered to prove "that our mines were properly located; that the operation of them was properly conducted; that the coal slack was deposited upon our own lands, without malice

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

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." This evidence in support of our answer would have established the reasonable exercise by us of the right granted by section 3862, and would have proved that we were exercising that right in the only way we could, and without malice or negligence, and such proof would also have amounted to a complete defense against the criminal provisions of section 6925.

The refusal of the court to receive this evidence, and to give the special charge asked upon the same point, was a refusal upon the part of the court to recognize a right expressly granted by statute.

The grant of power to coal companies under section 3862, is just as positive and strong, and almost in the exact language, as section 3270 Revised Statutes, which grants to railroad corporations the power to operate their roads.

Under this authority it was held in Ruffner v. Railroad Co., 34 Ohio St. 97: that "a party is not answerable in damages for a reasonable exercise of a right, and that a liability arises only when it is shown that the right was exercised negligently, unskilfully or maliciously," and McIlvaine, J., says "the doctrine here announced is sustained by the following cases: ". Railroad Co. v. Yeiser, 8 Pa. St. 366; Turnpike Co. v. Railroad Co., 54 Pa. St. 345; Burroughs v. Railroad Co., 15 Conn. 124; Road v. Railroad Co., 18 Barb. 80; Sheldon v. Railroad Co., 14 N. Y. 218; Railroad Co. v. Woodruff, 4 Md. 242; Smith v. Railroad Co., 37 Miss. 287; Wharton on Negligence, secs. 869-870.

Section 6925 must be so construed as to admit of the exercise of the right conferred by section 3862, as it has been construed by the court.

If by this criminal statute it was intended to make an act, which is necessary to be done in the natural use of real estate for a necessary and lawful purpose, a crime, then we deny the power of the legislature to enact such law. It is the application of a principle which is destructive of all property,

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

contrary to the spirit of the constitution and the general policy of the law, which is intended to foster and encourage the development of the industries of the state.

The case was also argued orally by Geo. K. Nash, for plaintiff in error.

S. H. Bright and R. F. Price, for defendant in error. 1. The broad question is, can a case like this be maintained at all under the law of Ohio?

Section 6925 Revised Statutes, made the acts and doings of the defendant below, as charged in the petition in the court of common pleas, criminal. It is difficult to imagine a case where a citizen has suffered loss, been damaged in his private estate by the unlawful act of another-an act in undoubted violation of a criminal statute, duly enacted by the legislature, under the provisions of the constitution-in which he would not have a right of action against the wrong-doer, in addition to the remedy the state has by indictment and punishment. In Chitty's Blackstone, book 4, pages 4 and 5, it is said: "in all cases the crime includes an injury; every public offense is also a private wrong, and something more." Cooley on Torts, pages 7, 657; Thompson on Negligence, vol. I., pages 72 and 76, and cases there cited, and page 114; Hilliard on Torts, vol. I., page 101; Bishop on Non-Contract Law, secs. 70 and 71, and cases there cited; secs. 141 and 142; Hayes v. Michigan Central R. R. Co., 111 U. S. 228.

Section 6925 Revised Statutes, as originally enacted, is found in vol. 73 Ohio Law, page 87, and provides a civil remedy, as follows: "and shall moreover be liable to the parties injured in treble the amount of damages by him or her or them sustained." The following year the legislature codified the criminal laws of the state, see vol. 74, page 264, and left off the clause above quoted. This codification was carried into the Revised Statutes, which took effect September 1, 1879, and January 1, 1880.

The old statutes, on nuisanees, Swan & Critchfield, page 880, which was almost the equivalent of the present section

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

6925, expressly gave (sec, 4) "an action for the recovery of damages as in other cases." This shows public policy in this state on the subject in favor of the civil remedy, for criminal nuisances.

On the proposition that former construction of a statute is not changed by revision, we cite: Taylor v. State, 36 Ohio St. 212; State v. Jackson, Id. 281; Williams v. State, 35 Ohio St. 175; Law Bulletin, vol. 21, page 52; Cooley on Torts, page 658.

Now, it is manifest that section 6925 in question was from its inception intended for the benefit of individuals as well as the public. Here the individual is the great sufferer. Those citizens who do not live on the streams in question, and have no particular use for them, would not be directly injured; but the riparian owner must of necessity be injured, and to say that the individual who may have his whole estate destroyed by the wrongful act of another, must be satisfied to go uncompensated, because the wrong-doer has been fined, is to announce a manifestly unjust proposition. But even if counsel for the plaintiff in error are right in saying that the statute, sec. 6925, has nothing to do with the case, still what is said about it in the charge was in no way misleading, and does not show error in the record. To state the case as mildly as possible, it was competent to call the attention of the jury to the statute, because it "characterizes the act" of the plaintiff in error, as was said in Meek v. Pennsylvania Company, 38 Ohio St. 632. It should be remembered in reading many of the cases bearing on this question, that the courts are troubled to determine whether the acts charged bring the case within the common law definition of nuisance. But here the statute of Ohio has said, these acts constitute a nuisance, and the common law says for injuries arising from a nuisance, the injured party shall have an action. Bepley v. State, 4 Ind. 264; Sangamon Dist. Co. v. Young, 77 Ill. 197.

2. But upon the broad principles of the common law we claim that the plaintiff below had a right of action, based

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

upon well recognized principles: "Sic utere tuo ut alienum non lædas."

"Nuisance comprehends whatsoever annoys or does damage to another in contravention of that great rule of right, so use your own as not to injure others." Walker's American Law, pages 573, 574; Sutherland on Damages, vol. 3, page 423; Columbus Gas Co. v. Freeland, 12 Ohio St. 392; Woodyear v. Schafer, 40 American Rep. 419; Penn. Coal Co. v. Sanderson, 94 Penn. St. 302; Canfield v. Andrew, 54 Vermont, page 1; Bishop on Non-Contract Law, sections 411, 412, note 2; Robinson v. Black Diamond Coal Co., 40 American Rep. 118; Addison on Torts, section 19, and cases cited; Sanderson v. Penn. Coal Co., 27 American Rep. 711, and cases cited; Washburn v. Gilman, 18 American Reports, 246; Cooley on Torts, pages 556, 569, 588 and 657.

A riparian owner has a right to the natural flow of water, not increased nor diminished in quantity, and unpolluted in quality, and for any infraction of this right at least nominal damages may be recovered. Sutherland on Damages, vol. 1, page 12; Addison on Torts, section 223; Cooley on Torts, page 587 and notes; Penn. Coal Co. v. Sanderson, 94 Penn. St. 302. But upon the principles laid down by this court in Crawford v. Rambo, 44 Ohio St. 279, and Railroad v. Carr, 38 Ohio St. 448, the action of the plaintiff below must be sustained. Here the answer of the defendant in the court of common pleas admitted that it had placed the dangerous substances complained of, and permitted them to remain, in "such manner" as they would be carried down Sugar run and Monday creek and deposited on the lands of Tucker. At least they admit that such was the inevitable result of their acts.

This brings this case within the principle of the fourth point in the syllabus of Crawford v. Rambo, above. After the injury becomes apparent, the party who causes it is always liable to the party injured.

3. The question of due care or want of due care is not important in cases like this. When the acts complained of necessarily produce damage to another, or where the party