
    ATLANTIC CRUSHED COKE COMPANY v. THE UNITED STATES
    [No. 124-54.
    Decided May 8, 1957]
    
      Mr. Gilbert J. Helwig for plaintiff. Mr. Charles E. Ken-worthey was on the brief.
    
      Mr. Thomas L. McKevitt, with whom was Mr. Assistant Attorney General Perry W. Morton, for defendant.
   Whitaker, Judge,

delivered the opinion of the court:

Plaintiff alleges that the defendant, by the construction of a dam on the Conemaugh River in Pennsylvania, deprived it of the use of its mine, for which it seeks just compensation.

The dam was constructed for flood control and, hence, defendant cannot escape liability if it, in fact, did deprive plaintiff of the use of its mine.

Adjacent to the river is the Isabella mine, operated by the Westmoreland Mining Company; in the rear of the Isabella mine, facing from the river, is the Breniser mine, also operated by the Westmoreland Mining Company. Plaintiff’s mine is in the rear of the Breniser mine.

There is a drain pipe from the Isabella mine at elevation 931 m. s. L, installed for the purpose of draining the water out of that mine; later an opening was cut between the Isabella and the Breniser mines at elevation 944, to drain the water out of the Breniser mine.

The normal pool elevation behind the dam erected by the defendant on the Conemaugh River is from 880 to 890 feet, but the top of the dam is at elevation 948 feet, and, later, gates were installed on the top of the dam, which raised the possible elevation of the water behind the dam to 975 feet.

Based upon the past record of floods on this river, a flood elevation of 975 feet is to be expected only once in 180 years. A flood elevation of 948 feet can be expected approximately every 2.7 years, and a water elevation of 931 feet could be expected about once a year.

About once a year, therefore, water impounded behind the dam, if of sufficient duration, could back up through the drain pipe and flood the Isabella mine, and about once every two and a half years there is to be expected a flood which would raise the reservoir above the normal elevation of the water in the Breniser mine. Because of this possibility, and because, supposedly, he was of the opinion that the coal barrier between the Breniser mine and plaintiff’s mine was not sufficient to withstand the pressure of the water in the Breniser mine when it exceeded elevation 944, a mine inspector of the Commonwealth of Pennsylvania ordered plaintiff to discontinue mining below elevation 950.

The inspector notified the Secretary of Mines of the Commonwealth of Pennsylvania of this order, but said:

There is no immediate danger in any of the above mentioned mines. If any of the companies object to my orders, I shall ask that a commission be appointed by you. It may be that the coal between 950 and 975 can be worked under a later agreement during low water, provided ample warning is given all concerned before the flood gates are closed.

A commission was appointed to consider the matter, and after an informal hearing, it entered an order prohibiting mining below elevation 975 feet, after the installation of the gates; but the order stated:

At a later date, it may be possible that the commission will modify the above requirements, provided an agreement, satisfactory to the commission, can be reached between the Corps of Engineers, U. S. Army, and the Atlantic Crushed Coke Company, whereby an authorized representative of the Corps of Engineers, U. S. Army, will accept the responsibility to notify an authorized representative of the Seger mine in sufficient time to provide for the safety of the persons in and about the Seger mine and the protection and preservation of the property connected therewith.

This order was issued on June 2,1952.

Plaintiff alleges that this order was “made necessary because of the threatened flooding of plaintiff’s Seger mine by waters impounded behind the Conemaugh Dam,” and, therefore, it says that the Government, by the erection of the dam, took its coal property.

Defendant cannot be said to have taken plaintiff’s property unless, as the natural and necessary consequence of the erection of this dam, plaintiff would be prevented from mining coal in its mine below the top elevation of the dam. Hortsmann Co. v. United, States, 257 U. S. 138; Columbia Basin Orchard Co. v. United States, 132 C. Cls. 445. Water would necessarily flow into the Isabella mine and into the Breniser mine, and up against the barrier between the Breniser mine and plaintiff’s mine whenever the water in the pool behind the dam exceeded 944 feet m. s. 1. for a sufficient time to reach the barrier; but would this result in a breach in the barrier between the Breniser mine and plaintiff’s mine and the consequent flooding of plaintiff’s mine; or would the danger of such a breach be so great as to probably cause the Commonwealth of Pennsylvania to prohibit the mining of coal below the elevation of the top of the dam ?

Plaintiff says that the possible flooding of its mine is not open to question, because the Secretary of Mines of the Commonwealth of Pennsylvania has determined that there is such a possibility, and that the danger of such a flooding is so imminent as to make it necessary to prohibit the mining of coal in that mine below the elevation of the top of the gates on top of the dam.

But, can we say, under the facts of this case, that the defendant must have known that the Secretary of Mines would issue such an order ? Can we say that the defendant must have known that the barrier between the Breniser mine and plaintiff’s mine was so cleai’ly insufficient to keep plaintiff’s mine from being flooded, that it must have known that this order would be issued ?

We are of the opinion that the proof does not show that the defendant must have known this. There is in the evidence the testimony of two qualified engineers that the barrier between plaintiff’s mine and the Breniser mine was sufficient to withstand any water pressure from the raising of the water in the pool of the dam to its highest level. One of these engineers is a member of one of the best qualified mining engineering firms in the country. He testified there is no possible danger of a breach in this barrier from water pressure from the dam. The other engineer, who had been in the employ of the Breniser mine, corroborates his testimony.

The normal level of the water in the Breniser mine was 944 feet and, hence, before the erection of the dam, the barrier between the two mines was subjected, normally, to water pressure to the extent that the level of the water in plaintiff’s mine fluctuated above or was reduced below 944 feet. Any added pressure caused by the erection of the dam could not exceed 18 and a fraction pounds per square inch. At the time of the erection of the dam, mining operations in plaintiff’s mine were being carried on at 930 feet. The total maximum water pressure on the barrier at this elevation, after the erection of the dam, would be 19.35 pounds per square inch, of which 6 pounds would be due to the water normally standing in the Breniser mine.

As against this 19.35 pounds, the barrier had withstood a water pressure of 40.85 pounds in 1945, and of 66.65 pounds in 1937.

If the water in plaintiff’s mine was reduced to its lowest point, the maximum water pressure from flood waters and the normal waters in the Breniser mine would be 51.6 pounds per square inch.

The barrier between plaintiff’s mine and the Millwood mine, which is in the rear of plaintiff’s mine, facing from the river, is thinner than the barrier between plaintiff’s mine and the Breniser mine; yet, the pressure of the water in the Millwood mine on the barrier between that mine and plaintiff’s mine, at elevation 944 feet, would be 24 pounds per square inch, as contrasted with 13 and a fraction pounds per square inch on the Seger-Breniser barrier, when the water in the pool behind the dam is at maximum elevation of 975 feet. The water pressure from the Millwood mine, although greater than the pressure from the flood waters behind the dam, and although the barrier was thinner, had not caused the Secretary of Mines to order a cessation of work in plaintiff’s mine.

In view of these facts, it seems to us the defendant had no reason to expect that the Secretary of Mines of the Commonwealth of Pennsylvania would hold that the barrier between plaintiff’s mine and the Breniser mine was so insufficient as to make it necessary for him to prohibit the working of plaintiff’s mine below elevation 975 feet.

It is nevertheless true that such an order was issued and remains in effect. However, we do not think that plaintiff can say that by this order it has been prevented from working its mine. Section 771 of Title 52 of Purdon’s Pennsylvania Statutes provides for an appeal to the Quarter Sessions Court from any action of a commission appointed by the Secretary of Mines. No such appeal was taken. We are of opinion plaintiff is not unable to work its mine so long as there is open to it means for securing a revocation of the order prohibiting the working.

Moreover, the order of the commission, dated June 2,1952, stated that its prohibition against working the mine might be modified, if a satisfactory agreement could be worked out between plaintiff and the Corps of Engineers, U. S. Army, to warn plaintiff’s representatives of expected flood waters in sufficient time to provide for the safety of the persons in the mine.

Immediately after the issuance of this order on June 2, 1952, defendant undertook to enter into such an agreement with plaintiff, but it could not get plaintiff to even discuss such an agreement. Later, the commission, on November 10, 1952, again notified the parties that they would consider modification of their order, if a warning agreement could be entered into. Finally, on May 13, 1953, the parties had a conference for the purpose of discussing such an agreement, and on May 29, 1953, defendant mailed to plaintiff a draft of such an agreement. Plaintiff made no reply for seven months, and then on December 31, 1953 it wrote defendant, saying:

* * * We have been unable to convince ourselves that the system of warning therein provided for [in the agreement drafted by the defendant], or any system of warning which could be devised in the circumstances, could provide adequate protection for the lives of our employees. The finding and order of the Pennsylvania Mining Commission has long since become final and even if it were possible to obtain a revocation of that order, we could not, in good faith, undertake to procure it.
Under the circumstances, we have no alternative but to institute proceedings in the Court of Claims of the United States in order to obtain compensation for the coal in the Seger Mine, to which we have been denied access, because of the construction and operation of the Conemaugh Dam.

It thus appears that plaintiff made no bona fide effort to enter into an agreement with the defendant to make it possible for it to operate its mine. Insofar as the record shows, the plaintiff never took up with the commission the draft of the agreement proposed by the defendant. Instead, it said that no agreement could be arrived at which would afford adequate protection and, thus, declined to discuss the matter further, and said it proposed to rely upon a taking of its property by the defendant.

Of course, there was no taking if plaintiff could continue to extract coal from the mine to the same extent and with the same ease as before the erection of the dam. Plaintiff has not shown it could not do so, because, first, it has not shown that the order of the Secretary of Mines could not have been set aside. If set aside, it could have extracted the coal to the same unrestricted extent as before.

In the second place, plaintiff has not shown it could not mine coal as before, because it has not shown that defendant’s proposed agreement for warning would not have been approved by the Secretary of Mines, or, if not this agreement, then some other agreement. If approved, permission might have been given to mine coal as before.

If permission had been given to mine coal as before, then there would have been no taking.

The cessation of mining was not the result of disapproval of the agreement, but of plaintiff’s refusal to agree to anything.

It is difficult to escape the conclusion that plaintiff did not want to continue mining its property, and welcomed the order to cease operation, as the basis of a claim of a taking.

Plaintiff’s petition will be dismissed.

It is so ordered.

Laramore, Judge; Madden, Judge; Littleton, Judge; and Jones, Chief Judge, concur.

FINDINGS OF FACT

The court, having considered the evidence, the report of Commissioner Marion T. Bennett, and the briefs and argument of counsel, makes findings of fact as follows:

1. Plaintiff, a Pennsylvania corporation, in liquidation, at all times material here has been owner of a coal mine known as the Seger mine in Derry Township, Westmoreland County, Pennsylvania.

2. There are other coal mines adjacent to the Seger mine. One of these adjacent mines, the Millwood shaft of the Barnett Coal Company, is separated from plaintiff’s property by a coal barrier that is of unknown thickness, all but about 10 feet of which is on the Barnett property. Mining operations in the Millwood shaft were abandoned about 1936 or 1937 and since that time water has stood in the mine at elevations in the neighborhood of 1000 feet m. s. 1.

3. To the north and west of plaintiff’s Seger mine is the Breniser mine of the Westmoreland Mining Company. This mine was abandoned in 1946 and water has since reached a level of approximately 944 to 947 feet. On March 17,1953, water in this mine stood at elevation 945.58.

4. The Isabella mine of the Westmoreland Mining Company is to the north of the Breniser mine. Mining operations in the Isabella mine were also abandoned many years ago and on June 9, 1954, water stood in the mine at elevation 937.07.

5. While operated by the Westmoreland Mining Company, a hole was broken through the coal barrier between the Breniser and Isabella mines at an approximate elevation of 944 feet. Water from these mines flows out of an opening in the Isabella mine into the Conemaugh Diver. This latter opening is in the form of a tile drain pipe at elevation 931.4 feet.

6. The construction of the Conemaugh Dam was authorized by Congress as a flood control project and was completed in 1952. The dam is located approximately 18 miles downstream from the point where the Isabella mine adjoins the river. The normal pool elevation was designed to vary between elevation 880 and 890 feet. The fixed concrete spillway is at elevation 948 feet and the top gates, completed in September 1953, can store water to elevation 975. The highest point which the water has reached behind the dam is elevation 949.6 which occurred in October 1954 under unusual flood conditions created by heavy rainfalls accompanying a hurricane.

Plaintiff claims that its property has been taken because of a threat that waters stored behind the dam in time of flood will enter the Isabella mine opening at elevation 931.4, pass through the abandoned Isabella and Breniser mines, where the United States has had a flowage easement since December 1952, and break the Breniser-Seger coal barrier, thus flooding plaintiff’s mine.

7. When plaintiff acquired the Seger mine in 1943 it was being mined around elevation 965. For the next five years plaintiff mined down to elevation 940 and had the water down to 930, which was the lowest it was while operated by plaintiff. The mine was shut down in 1954 and in 1955 it was leased to another company. Water reached elevation 1,010 in October 1954 when it was not pumped and is now held at elevation 975.

8. Operations in the Breniser mine have been carried on at lower levels than in plaintiff’s Seger mine since 1930. During the years 1930-1946 water was kept between elevations 820 and 830 in Breniser with two brief exceptions. Between April and July 1946 the water stood at elevation 850 and thereafter rose to elevation 950. Since water flows from Breniser into Isabella at the approximate elevation of 944, the natural standing water level in Breniser is, as noted in finding 3, about 944 to 947 feet m. s. 1. On August 28,1955, it was reported standing at elevation 947.45.

9. The coal barrier pillar between the Breniser and Seger mines varies in thickness, but at its thinnest point, which is elevation 855, it is not less than 52 feet wide. This is far below the water level in both mines. At this point, however, additional blocks of coal were left by the Westmoreland Mining Company and these blocks lend some additional strength to the barrier. The barrier was left when the mines were worked in that area in the 1930’s and at that time was legal in its dimensions although it may be insufficient today for all purposes, although adequate to withstand the water pressure created by the erection of the dam. The weight of the cover will cause narrow barriers to crumble. Consequently, the importance of thickness in a coal mine barrier exists in direct proportion to the amount of cover that it must sustain. The greater the cover the greater the thickness necessary. The Pennsylvania Barrier Pillar Act requires each owner to leave a minimum of 10 feet of coal on his side of the line, plus 2 feet for each foot of coal seam height, plus 5 feet for every 100 feet of cover above. The coal seam in the area here concerned is from 6 to 7 feet high. The cover over the coal seam is approximately 200 feet. Plaintiff’s predecessors in interest in the Seger mine did not leave 32 feet of barrier on their side of the dividing line between the Seger and Breniser mines. The portion of the barrier left by the Westmoreland Mining Company at a later date did not make up the difference at the narrowest point, but as noted above Westmoreland did leave certain additional “stumps” or blocks to keep seepage at a minimum and which strengthen the barrier.

Two reputable mining engineers testified that the barrier was fully adequate to withstand the pressure of water on it with water in the pool at its highest elevation. One of them, a member of one of the best engineering firms in the country, said the barrier was perfectly safe and that there was no danger of deterioration. It is so found.

10. Water standing at the same elevation on both sides of a coal barrier exerts no pressure on it. The pressure of standing water at different elevations is measured by multiplying the difference in elevation in feet, i. e., the head of water, by .43. The resultant figure is the water pressure in pounds per square inch. Some of the actual water pressures which have existed on the barrier between the Seger and Breniser mines are as follows:

Some of the water pressures which could exist at various elevations on the barriers are as follows:

11. The water pressure that would exist if the water level in plaintiff’s Seger mine were to be brought down to 855, the lowest point in that mine, and the water in the Breniser mine were to reach the reservoir full elevation of 975, would be 51.6 pounds per square inch. In 1937 the barrier between the Breniser and Seger mines, which concerns the parties here, carried a pressure of 66.65 feet per square inch, as shown in the table above, or 15 pounds per square inch more than the maximum that could be created in the future by operation of the dam.

12. When the plaintiff had the water level in its Seger mine at elevation 930 sometime after 1943, the pressure on the barrier between Seger and Millwood, which was smaller than that between Seger and Breniser, with water standing at approximately 1,000 feet in the Millwood area, was 30.10 pounds per square inch. At present there is a pressure equal to 17.2 pounds per square inch on this barrier due to a head of 40 feet between the two mines. The current elevation of water in the Millwood shaft is 34.6 feet higher than the maximum reservoir elevation of 975.

The barrier between the Millwood mine and Seger is at elevation 890 and the pressure at that point would be 51.4 pounds per square inch if the water level in the Seger mine were brought down to that point. Assuming plaintiff’s Seger mine was dewatered and the water behind the dam was at normal pool elevation, the pressure on the Breniser-Seger coal barrier by the natural waters of the Breniser mine would be 38.8 pounds per square inch.

13. Pennsylvania mine inspectors are required to inspect mines employing five or more men at least every four months and, if a condition is found that makes mining dangerous to life, the operation can be stopped at once, if necessary to correct it, and there are criminal penalties for violation of mine safety laws. Except for the facts stated hereafter, at no time during the operation of plaintiff’s mine was any complaint made that the barrier between this and other mines was unsafe or was leaking and there is no evidence that mining was ever interrupted by reason of any weakness in the barrier or thought that it was inadequate to withhold any water pressures. These facts are so notwithstanding statements by men who worked in the mine that in the 1930’s some of them at times heard the sounds of machinery and voices in the adjacent Breniser mine.

14. The State mine inspector for the eleventh district of Pennsylvania held that position and inspected the mines concerned here for a period of ten years. On April 24, 1952, he wrote a letter to plaintiff and prohibited mining in the Seger mine below elevation 950 m. s. 1., which was two feet above the highest possible elevation for water in the Conemaugh Beservoir prior to installation of the gates previously described, and which eventually made it possible to impound water to elevation 975. The order was based on the explanation that information had been received indicating the barrier between the Westmoreland Company’s Breniser mine and plaintiff’s mine was punctured and that the strength of the barrier was doubtful. The order was made applicable to both mines. The information about the alleged puncture was hearsay. No testimony with respect to an alleged puncture has ever been introduced.

On the same date the inspector wrote to the Secretary of Mines for the State advising him of the action taken but stating, in part, as follows:

There is no immediate danger in any of the above mentioned mines. If any of the companies object to my orders, I shall ask that a commission be appointed by you. It may be that the coal between. 950 and 975 can be worked under a later agreement during low water, provided ample warning is given all concerned before the flood gates are closed.

15. The top gate elevation of 975 was established to meet the most remote possibility of high water. That elevation was reached in 1936 and is the only instance of such a flood crest since 1770. A projection of frequency of floods in the future, based among other things on past record, including gauge records back to 1901 and historical records to 1858, indicates that on the average a flood to elevation 975 would be expected only once in 180 years, a flood to elevation 948 could be expected approximately every 2.7 years and water to elevation 931 would be reached about once per year. Between September 1954 and September 1955, water had exceeded elevation 940 twice, and elevation 931 three times. In case of a maximum flood, it would take the water three days to rise from the normal river level of 880 to elevation 940, and 36 hours to rise from elevation 940 to 975. Because the abandoned Isabella and Breniser mines, which are between plaintiff’s mine and the opening into the river, are full of broken rock known as “gob,” and the distance from the river is about three miles to the Seger-Breniser barrier, it would take flood waters approximately one week to reach that barrier.

16. As a result of the order of April 24, 1952, referred to in finding 14, a commission was appointed and took informal evidence consisting of statements about sounds having been heard through the barrier some 20 years before and about water which flooded the plaintiff’s mine in 1936 or 1937. On June 2, 1952, this commission entered an order stating that because of the doubtful amount of barrier pillar between plaintiff’s mine and that of the Westmoreland Mining Company, no person should go below elevation 950 except in “the 1-Left section off the main rope haulage,” which was protected by higher elevations. No mining was to be done in that section below elevation 940 until an accumulation of water in the Breniser mine was removed. The order provided, also, that except for inspection purposes, no person should go below elevation 975 in plaintiff’s mine after the top flood gates were installed on the Conemaugh Dam.

The order stated further:

At a later date, it may be possible that the commission will modify the above requirements, provided an agreement, satisfactory to the commission, can be reached between the Corps of Engineers, U. S. Army, and the Atlantic Crushed Coke Company, whereby an authorized representative of the Corps of Engineers, U. S. Army, will'accept the responsibility to notify an authorized representative of the Seger mine in sufficient time to provide for the safety of the persons in and about the Seger mine and the protection and preservation of the property connected therewith.

On July 2,1952, defendant sought information from plaintiff necessary to the drafting of such an agreement as referred to above but plaintiff failed to supply it and refused to enter into such an agreement.

17. On October 11, 1952, the commission recommended to the Secretary of Mines that further mining be prohibited below elevation 950, and below elevation 975, after the gates were installed.

18. On November 10,1952, the commission was reconvened and the signal or warning system was again discussed. Results of that meeting, attended by representatives of defendant, were confirmed in a letter to defendant on the same date. The letter stated that the conclusions previously made by the commission would remain unchanged but that it would consider any agreement reached jointly by plaintiff and defendant to mine coal with safety below the highest possible elevation of waters in the Conemaugh River Reservoir. As a result, on December 9, 1952, plaintiff wrote to defendant requesting a conference bn the subject. A conference was held on May 13, 1953. On May 29, 1953, defendant mailed to plaintiff a draft of memorandum of agreement believed to conform to the understandings reached at the conference. On December 31, 1953, plaintiff replied as follows:

We have carefully considered the proposed agreement between the United States and Atlantic Crushed Coke Company designed to provide an adequate warning system for use in connection with the operation of Atlantic Crushed Coke Company’s Seger Mine. We have been unable to convince ourselves that the system of warning therein provided for, or any system of warning which could be devised in the circumstances, could provide adequate protection for the lives of our employees. The finding and order of the Pennsylvania Mining Commission has long since become final and even if it were possible to obtain a revocation of that order, we could not, in good faith, undertake to procure it.
Under the circumstances, we have no alternative but to institute proceedings in the Court of Claims of the United States in order to obtain compensation for the coal in the Seger Mine, to which we have been denied access, because of the construction and operation of the Conemaugh Dam.

19. Plaintiff was notified by the mine inspector on November 18,1953, that, effective at once, no person should go below elevation 975 feet in the Seger mine, except for inspection purposes. On November 23,1953, the commission advised the Secretary of Mines that it had reviewed its previous reports and orders, consulted with the parties, and in view of the fact that its recommendation of November 10,1952, had not been complied with and crest gates had been installed on the dam, the order of November 18,1953, by the mine inspector was concurred in by the commission. This inspector was a member of the three-man commission. Plaintiff decided not to appeal the decision to the Secretary of Mines or to ask for appointment of a new commission to review the determinations made.

CONCLUSION OF LAW

Upon the foregoing findings of fact, which are made a part of the judgment herein, the court concludes as a matter of law that plaintiff is not entitled to recover, and its petition is therefore dismissed. 
      
       Maximum dam elevation 975 feet, less normal Breniser elevation 944, equals 31 feet. Tils, multiplied by factor .43, equals 13.3 pounds per square inch pressure.
     
      
       For further comparison of the pressure on the two barriers at different elevations, see finding 10.
     
      
       The mine was shut down in 1953, and leased in 1954.
     
      
       From barrier elevation.
     