
    CHARLESTON.
    Samuel Armstrong v. Pinnacle Coal and Coke Co.
    (No. 5432)
    Submitted February 2, 1926.
    Decided February 9, 1926.
    1. Easements — On Grant of Easement With Care Imposed in Use Thereof, Grantee in Using Such Bight Must Assume Care.
    
    When, a right is -granted, with care imposed in the use of the right, the right and the care are correlative.. In using the right the grantee must assume the care. (p. 17.)
    (Easements, 19 C. J. § 218.)
    2. Electricity — Erection of Electric Power Poles on Roadway by Private Corporation for Private Use, Without Official Permission, Imposes New and Additional Burden on Abutting Owner.
    
    The erection of electric power poles on a roadway by a private corporation, for private úse, and without permission from any official body, imposes a new and additional burden on the abutting owner, (p. 17.)
    (Electricity, 20 C. J. § 11.)
    (Note : Parenthetical references by Editors, C. J.- — -Cyc. Not part of syllabi.)
    Error to Circuit Court, Kanawha County.
    Action by Samuel Armstrong against the Pinnacle Coal & Coke' Company. Judgment for the plaintiff, and defendant brings error.
    
      Judgment reversed; new trial awarded.
    
    
      B. G. Kelly and Payne, Minor & Bouchelle, for plaintiff in error.
    
      B. E. Hughes and Geo. D. Moore, for defendant in error.
   Hatcher, Judge :

The plaintiff owns .9 of an acre of surface in Kanawha County. The defendant leases and for a number of years has operated the coal underlying and surrounding plaintiff’s property. During the earlier years of operation the mine was drained through, the drift mouth, which is located three or four hundred feet below plaintiff. As the development of the mine progressed, drainage through the drift mouth became impracticable. In 1921 a shaft was sunk above plaintiff, and the mine water has since been pumped out through the shaft, from which it flows across plaintiff’s lot. Prior to drainage from the shaft, the water from a well on plaintiff’s land was soft and palatable; since then it has been hard and unpalatable. Except following heavy rains, the well water is now impregnated with the characteristic flavor of mine water, and the plaintiff is unable to use it. In 1923 defendant placed two electric power poles on plaintiff’s property.

In an action for these trespasses, a judgment was rendered in the Intermediate Court of Kanawha County in favor of plaintiff for $175.00. Interrogatories answered by the jury show that $150.00 was assessed for damage because of the drain, and $25.00 for damage because of the power poles.

The right to drain the mine was granted in a partition deed between the heirs of Joseph Ruffner, to which deed both parties hereto trace title. That right is expressed as follows:

“It is hereby understood and agreed among the parties to this deed that subterranean and surface rights of way to the Kanawha River to get a perfect drainage for coal banks shall attach and are hereby granted forever to the several owners thereof, respectively, through, under and across over any or all of said tracts of land; but said ways and drainage ways shall be constructed as to be reasonable and just and so as to do no more injury to the land over which they may pass than can be reasonably avoided, each owner using said ways and constructing the same in a reasonable and prudent manner, it being the purpose of this partition to make the several tracts most available to the owners respectively with the least possible detriment to the others.”

Plaintiff contends that since the defendant had located and used the drainway at the drift mouth, it had no right to change the drain to plaintiff’s land except by mutual consent. Tbe contention is supported by tbe law generally applicable to sueb easements. Coal Co. v. Hatfield, 75 W. Va. 148. However, tbis rule does not apply to tbe situation bere, because tbe change was made to obtain a better system of drainage, and was therefore permissible under tbe purpose of tbe easement as expressed in tbe partition deed.

Tbe defendant seeks to justify its use of tbe plaintiff’s lot by tbe bolding of tbis court in Preston Coal Co. v. Elkins Co. 82 W. Va. 590. In that case tbe “free and uninterrupted”' right was granted to use ways, etc., “without being liable for any injury” to tbe servient estate. Tbe right granted in that case is so unrestricted, and so different from tbe one in this case, that tbe decision there has little if any bearing bere. Tbe use of an easement is confined to tbe purpose expressed, and must be exercised in tbe manner specified in tbe grant which creates it. 19 C. J. 974 par. 218; 9 R. C. L. 787 par. 44; Washburn On Easements p. 283 par 3; Watts v. Johnson 105 Va. 519. Tbe purpose of creating tbe easement herein was “to make tbe several tracts most available to’the owners respectively”, and tbe use was to be exercised “with tbe least possible detriment to tbe others ’ ’. Under tbe covenant in tbe partition deed tbe right to use plaintiff’s land, and tbe obligation to do him no more injury and detriment than could be reasonably avoided, are correlative. Having laid bold on tbe benefit conferred by tbe covenant, tbe defendant should have assumed tbe burden thereby imposed. It should have constructed tbe drainway across tbe plaintiff’s land in such manner as would have done no more injury thereto than could have been reasonably avoided and with tbe least possible detriment to tbe plaintiff. Tbe evidence discloses no attempt whatsoever by tbe defendant to comply with tbis obligation.

Neither does tbe evidence disclose a right in tbe defendant to locate its power poles on plaintiff’s land. Defendant offers two excuses for tbis trespass; one, that tbe poles are located on a roadway extending through plaintiff’s property, tbe other, that tbe plaintiff offered no objection at tbe time tbe poles were set up. Tbe evidence shows that tbe roadway in question bad been used as such for more than twenty years, but it does not appear whether the road was private or public. This court held in Lowther v. Bridgemen, 57 W. Va. 306, that the reasonable use of a public highway “for the purpose of placing poles and wires for a telephone for public use under legislative authority ’ ’ was not an additional servitude upon the fee. But we have never held, and we are cited no authority holding that the placing of poles in a road, by a private corporation for private use, and without permission from any official body, constitutes no additional servitude upon the fee. Joyce on Electric Law, par. 331 and 331-a, is authority that such a use of either a public or private road imposes an additional burden upon the abutting owners.

The plaintiff testified that at the time the poles were set up, he thought the defendant would pay him for the privilege. Further explanation of his failure to protest the erection of the poles was stopped upon an objection of defendant. Plaintiff was also prevented by the court’s ruling on a like objection from giving an estimate of the damage occasioned by the defendant’s drainway. The jury was accordingly without evidence upon which to base the amount returned in its verdict, and the ease will have to be reversed and a new trial awarded.

The plaintiff’s opinion on the amount of his damages was admissible under Hargreaves v. Kimberly, 26 W. Va. 795. The error of the court in refusing to admit such testimony was “invited” by the objection of defendant. Despite reversal, the plaintiff has substantially prevailed, as we uphold his claim for recovery. We therefore award the plaintiff his costs in this court.

Judgment reversed; new trial awarded.  