
    No. 146
    NAT. COAL CO. v. HESKETT
    No. 19492.
    Supreme Court
    On motion to certify.
    Dock. Dec. 16, 1925;
    4 Abs. 10.
    355. DAMAGES — Having been recovered under allegations of petition, can further damages be recovered for all future damage which is reasonably certain to follow; and were all such subsequent damages included in the original petition?
    Attorneys — Chas. S. Sheppard for Company; Scott & Scott for Heskett; all of Cambridge.
   N. V. Heskett brought an action in the Guernsey Common Pleas against the National Coal Co. for damages, he being the owner of the surface land. He claimed that coal removed from under his land without leaving sufficient support resulted in loss of water in certain springs and wells. The judgment was in favor of Heskett.

The question raised in the Supreme Court as to damages is: When an action has been brought by the owner of the surface to recover damages by reason of removing the coal from under the land without leaving sufficient support, the damage being loss of water in certain springs and wells, and said action having gone to final judgment and the judgment paid that such an action constitutes res judicata and no further action can be brought for future damages or further loss of other springs although mining operations have been conducted subsequent to the former judgment.

The claim is based on the broad allegations of the original petition claiming therein that all the coal was mined and that the same was worthless and under such a claim the true rule of damages should be not only present apparent damage but all future damages which are reasonably certain to follow and this being the true rule of damage all such damages as subsequently followed were included in the former petition.

The Company claims that Heskett is now estopped to claim any subsequent mining of coal since in his original petition he claimed all of the coal was mined.  