
    Ball v. Fordson Coal Company.
    (Decided Oct. 13, 1933.)
    
      CHILDERS & BOWLES for appellant.
    HARMAN, FRANCIS & HOBSON for appellee.
   Opinion of the Court by

Judge Dietzman

Affirming.

In Ms petition in tliis action, the appellant, James Ball, plaintiff below, in substance averred that in 1922 he had buried his wife’s body in the Whitt Cemetery on Hurricane Pork of Pond creek in Pike county; that the appellee, Pordson Coal Company, in removing the-coal from under the land on which the cemetery was located did not leave sufficient “subjacent support for the surface of said cemetery,” thereby causing “great breaks and fissures in the earth and in and under said cemetery” and “in and under the grave” of appellant’s wife to occur by reason of all of which great volumes of water ran into the grave of appellant’s wife necessitating and compelling the disinterment of the body and its removal to another cemetery. Damages were sought for the alleged wrong thus done appellant. The answer of the appellee after traversing the allegations of the petition affirmatively set out that the appellee was the owner of all of the coal under the cemetery and the surrounding territory under a mineral deed made to it in 1890 by virtue of which it had the right to extract all the coal from under said land. On the trial of the case, the plaintiff’s proof, together with a stipulation, disclosed that the cemetery in question was established some 50 years ago; that the appellee’s predecessor in title had in 1890 acquired all of the coal under the land upon which the cemetery was located as well as that under the surrounding land; that the appellee had mined the coal from under the cemetery and from under the land surrounding the cemetery; that while the appellee had mined out all the coal, probably leaving" no subjacent support for the surface of the land surrounding the cemetery, it had not done so with regard to the coal under the cemetery; that as to this coal, it had mined only from 35 to 40 per cent, leaving ample subjacent support for the surface of the cemetery; •that the removal of what coal was removed from beneath the cemetery would not and did not cause any subsidence or disturbance in tbe surface of tbe cemetery; tbat whatever cracks and fissures appeared in tbe cemetery and in tbe grave of appellant’s wife were probably caused by tbe removal of lateral support, and not by tbat of subjacent support. At tbe close of tbe appellant’s evidence, tbe court peremptorily instructed tbe jury to find for tbe appellee. From tbe judgment entered on tbe verdict so found, this appeal is prosecuted.

Several grounds are urged in support of tbe propriety of tbe lower court’s action in peremptorily instructing tbe jury as it did. However, we need neither discuss nor decide any of them, except tbe perfectly obvious one of tbe utter failure of tbe proof to establish tbe cause of action alleged. Tbe appellant based bis action entirely on tbe removal by tbe appellee of tbe subjacent support of tbe cemetery. Not only did be fail to establish such claim, but on tbe contrary be affirmatively established tbat tbe subjacent support left by tbe appellee was ample to support tbe surface of tbe cemetery and tbe graves therein, and tbat whatever damage was done to tbe cemetery was not occasioned by tbe removal of any subjacent support. Having not only failed to establish bis alleged cause of action, but also affirmatively established tbe contrary, appellant has no ground to complain of tbe court’s action in peremptorily instructing tbe jury to find against him.

Tbe judgment is affirmed.  