
    Williams v. Pomeroy Coal Company.
    The defendant, the lessee of a coal mine, worked over onto the land of an adjoining proprietor, and after taking out all the coal from the demised premises, surrendered his lease. The plaintiff having subsequently purchased the adjoining lands, in mining thereon, in ignorance of the overworking of the defendant, struck such working, whereby the water from the abandoned mine flooded the plaintiff’s mine. In an action by the plaintiff against the lessee to recover the damages caused by the flooding—Held:
    1. That the cause of action against the defendant is for the trespass in working over his line, and that he is not chargeable with creating and maintaining a nuisance.
    2. In the application of the statute of limitations there is no distinction between trespasses under ground and upon the surface; nor whether the cause of action is known or unknown to the plaintiff within the time limited by the statute.
    3. The bar to a recovery in an action for a trespass includes all the consequences resulting from such trespass.
    Error to tbe District Court of Meigs County.
    
      Tlie original action was commenced by Ebinezer Williams, plaintiff in error, against the Pomeroy Coal Company, the defendant in error, February, 1813, in tlie common pleas court of Meigs county.
    The facts as they appear in the record are substantially as follows:
    Prior to January 30, 1868, one Nahum Ward owned in fee lot 1223, on the Ohio river, in Meigs county, and at the same time one Philip Ilondesheldt was the owner in fee of lot 1222, and V. 13. Ilorton was the owner in fee of lot 301, and the latter had a lease from Ilondesheldt granting the right to mine all the coal under the south half of lot 1222. On August 10, 1858, Mr. Horton conveyed to the Pomeroy Coal Company, by liis lease of that date duly executed, his right to' mine and take away the coal under said two tracts of land. By the terms of said lease the Pomeroy Coal Company bound itself to “ quit and surrender the premises ” at the end of ten years, to wit, by August 10, 1868. The defendant entered upon the premises, and as early as 1862 had mined all the available coal thereon, and did, in that year, abandon the said lease, with the consent of the said Horton, and turned over to him the abandoned mines on said premises. The defendants, while excava-' ting the coal on lot 1222, mined over on to the adjoining lot 1223, from thirty-six to thirty-nine feet. In 1864 the plaintiff bought lot 1223 of said Nahum Ward, and began operating the mines thereon. In June, 1868, the workmen engaged in said plaintiff’s mine tapped the water which had accumulated in the abandoned mine, and it flooded the mine of plaintiff.
    The working over on lot 1223 was done as early as 1861, but was not known to the plaintiff until the water flowed into his mine as above stated.
    On the trial the plaintiff, among other things, requested the court to charge the jury as follows :
    “ That if the jury find that the water from the mine of the defendant commenced to flow into the mine of the plaintiff more than four years before the commencement of this action, and has continued to flow from that time up to the present time, and the plaintiff has continually from that time to this been compelled to pump tlie same out of bis mine at a great expense in order to enable bim to work bis own mine, then be is entitled to recover all damages be has sustained witbin four years before tbe commencement of tliis action.”
    Tin's instruction tbe court refused to give, but instructed tbe jury, in substance, that if tbe flowage of water from tbe old mine of tbe defendant into tbe mine of tbe plaintiff commenced more than four years before tbe bringing of tbe suit, tbe right of action was barred by tbe statute of limitations.
    Tbe jury returned a verdict for tbe defendant, on which judgment was rendered. Tbe district court, on error, affirmed tbe judgment.
    Tbe present petition in error is prosecuted to reverse these judgments.
    
      Simeon Nash, and J. J. Glidden, of O’ Connor, Glidden & Burgoyne, for plaintiff in error:
    There was no damage claimed in this action, occurring from this flow of water, until tbe flow began. An action of trespass could only have been brought for tbe trespass and value of coals removed; these consequential damages bad not then occurred, lienee tbe owner of tbe land could not have recovered for tbe damages now sued for. Here, tbe cause of action arises, not directly from tbe trespass, but from the fact that tbe trespass was unknown by tbe plaintiff, and be worked bis mine as though defendant bad complied with tbe law in digging up to tbe line and not over it. Tbe flow of tbe water from tbe old abandoned mine of defendant was a continuing nuisance. Bainbridge on Mines, 411; Roberts v. Nead, 16 East, 215; Gillon v. Boddington, 1 C. & P. 541; Sutton v. Clarke, 6 Taunt, 29 ; Lloyd v. Wigney, 6 Bing. 489 ; Bonomie v. Backhouse, El. B. & El. 622; s. c., H. L. Ca. 503; 101 Eng. C. L. 970; Rylands v. Fletcher, L. R., 3 H. L. 330, 339, 340; Smith v. Kenrick, 7 C. B. 564; Smith v. Fletcher, L. R. 7 Exch. 305 ; s. c., 3 Eng. R. by Moak, 305 ; Crampton v. Lea, L. R. 1874, ch. 225 ; Angell on Water-courses, 378, § 335 ; 17 Johns. 306 ; 7 Pick. 76; 3 Hill, 531; 3 Taunt. 99; 30 Ala. 319; Wood on Nuisances, 12, 121; Tuthill v. Scott, 43 Vt. 525 ; Beard v. Murphy, 37 Vt. 104 ; Miller v. Lauback, 47 Penn. St. 155; Bellows v. Sackett, 15 Barb. (N. Y.) 96; Tootle v. Clifton, 22 Ohio St. 247; Martin v. Riddle, 26 Penn. St. 415 ; Lammier v. Francis, 23 Mo. 181; Earle v. De Hart, 1 Beasley (N. J.) 280; Ennor v. Barwell, 2 Griff. 410 ; Kauffmann v. Geismeier, 26 Penn. St. 407; Lattimore v. Davis, 14 La. 161; Curtis v. Erie R. R. Co., 14 Allen, 55 ; Laney v. Jasper, 39 Ill. 54 ; Adams v. Walker, 34 Conn. 446; Gilman v. Railroad Co., 40 Ill. 484; Sweet v. Cutts, 50 N. H. 439; Goodalers v. Tuttle, 29 N. Y. 467; Hayes v. Hinkleman, 68 Penn. St. 324.
    He who has been the author of a nuisance is answerable for all the consequences thereof. Angelí on Water-courses, § 402; Wagoner v. Jermanie, 3 Denio, 206; Staples v. Spring, 10 Mass. 72 ; Beidleman v. Foulke, 5 Watts, 308 ; Pillsbury v. Moore, 44 Maine, 156; 3 Blacks. Comm. 220; Dorman v. Ames, 12 Minn. 451; Brown v. Woodworth, 5 Barb. 550 ; Pickard v. Collins, 23 Barb. (N. Y.) 444; Anderson v. Dickie, 26 How. (N. Y.) 105; Smith v. Elliott, 9 Penn. St. 345; Fish v. Dodge, 4 Denio (N. Y.) 311; Thompson v. Gibson, 7 Mees. & W. 456.
    But it is said the remedy is trespass and the action is barred by the statute of limitations within four years from the date of the trespass, and this without regard to whether plaintiff had knowledge of the trespass or not. The action that is barred in four years is trespass—not case. The damage is continuous, and a cause of action arises in case for each resultant damage. Harsh v. Butler, Wright, 99 ; Thayer v. Brook, 17 Ohio, 489 ; Railroad Co. v. Comers Greene Co., 31 Ohio St. 338.
    The rule we contend for as applicable to this case is stated in Angelí on Limitations, § 300. Hodges v. Hodges, 5 Met. 205; Alexander v. Kerr, 2 Rawle, 83; 3 Rawle, 250 ; 3 Denio, 306; 1 N. J. 469; 2 N. J. 243; 52 Barb. 257; 3 Blacks. Comm. 220.
    When there is a consequential damage, case may be maintained, though the original act was a trespass. Harris v. Ryding, 5 Mees. & W. 60; Roberts v. Reade, 16 East, 215 ; 
      Raine v. Alderson, 4 Bing. (N. C.) 702; Mills v. Ody, 1 Mees. & W. 452; Wood on Nuisances, 116, 119; 30 L. J. C. P. 305; 12 Mod. 518 ; 32 N. H. 90.
    
      Grosvenor & Vorhes and S. D. Horton, for defendant in error:
    Has the plaintiff, upon the pleadings and the evidence, a right of recovery? We answer no, and for reasons say: 1. More than four years elapsed between the overworking complained of -and the bringing of this action. 2. More than four years elapsed after the overflow of the plaintiff’s mine, to as great an extent as it ever did, and before this suit was begun. 3. More than four years elapsed after the full extent of the injury was known to plaintiff before he began this action. 4. The plaintiff did not own the mine to which the injury was done at the time the wnong, if any was committed, Was complete; and his subsequent purchase did not carry with it the right to sue for this alleged injury. 5. There is here no nuisance or continuing cause of action, for the reasons: a. The injury came of a trespass committed on the land of another, to wit: Nahum Ward, by the defendant, and was complete prior to 1862, and before the plaintiff bought the premises; and, b. “ No one can be charged as a continuing wrong-doer who has not the right and is not under the duty of terminating that which causes injury.” Kansas Pacific Railway v. Mihlman, 17 Kansas, 224. c. When the plaintiff discovered the flow of water in 1868 it became his duty to “make reasonable efforts to prevent an increase of the injury,” and having failed to do so for more than four years, he cannot recover for any continuing or increased injury. Ibid. The conduct of the defendant, and of which this plaintiff complains, was the committing of a trespass, and not the creating or maintaining of a nuisance. Bainbridge on M. & M. 444, and cases cited. The statute of limitations for actions for trespass applies.' Ibid. “ The only ground for excluding or extending the statute would be fraud and mistake. It has been distinctly held, at law, that fraud (even) will not prevent the statute from running.” Imperial Gas Co. v. London Gas Co., 6 Exch. 39 ; Blair v. Bromley, 5 Hare, 542; Bainbridge on M. & M. 411; 3 B. & Ald. 628 ; Nicklin v. Williams, L. J. N. S. Exch. 335.
   White, J.

Tbe decision of tbis case depends upon what constituted tbe cause of action against tbe defendant, and when it accrued. Tbe claim of tbe plaintiff is tbat tbe cause of action consists of a private nuisance caused by tbe excavation made by tbe defendant on lot 1223 when removing tbe coal under bis lease from tbe south half of lot 1222, and tbat tbe cause of action is á continuing one and first accrued when tbe water from tbe abandoned mine flowed over into tbe mine of tbe plaintiff. On tbe other hand, tbe claim of tbe defendant is tbat tbe cause of action consisted of tbe trespass committed in making tbe excavation, and was completed when tbe work was done and tbe mine abandoned. In tbe first place, it may be observed tbat tbis is not a case where tbe defendant has wrongfully entered upon tbe lands of tbe plaintiff and erected and maintained structures thereon. Nor is it a ease where structures have been erected and maintained on tbe lands of tbe defendant or of another, to tbe nuisance or injury of tbe plaintiff’s premises. In these cases tbe wrong may, by tbe lapse of time, ripen into a right under tbe statute of limitations or by prescription. In speaking to this point in Clegg v. Dearden, 12 Ad. & Ellis, N. S. 601, Lord Denman uses tbe following language: “ Tbe gist of tbe action, as stated in tbe declaration, is tbe keeping open and unfilled up an aperture and excavation made by tbe defendant into tbe plaintiff’s mine. By tbe custom, tbe defendant was entitled to excavate up to the boundary of bis mine, without leaving any barrier, and tbe cause of action, therefore, is tbe not filling up the excavation made by him on tbe plaintiffs’ side of tbe boundary and within their mine. It is not, as in tbe case of Holmes v. Wilson, 10 A. & E. 503, a continuing of something wrongfully placed by the defendant upon tbe premises of tbe plaintiff; nor is it a continuing of something placed upon tbe land of a third person to tbe nuisance of tbe plaintiff, as in tbe case of Thompson v. Gibson, 7 Mees. & W. 456. There is a legal obligation to discontinue a trespass or remove a nuisance; but no such obligation upon a trespasser to replace what he has pulled down or destroyed upon the land of another, though he is liable in an action of trespass to compensate in damage for the loss sustained. The defendant, having made an excavation and aperture in the plaintiff’s land, was liable to an action of trespass ; but no cause of action arises from his omitting to reenter the plaintiff’s land and fill up the excavation. Such an omission is neither a continuation of a trespass, nor a nuisance ; nor is it a breach of any legal duty.”

• The defendant in the present case had no estate or interest in lot 1222 further than the right to mine the coal therefrom. This he accomplished in 1862, and surrendered the premises. He had no authority from the owner of the fee, nor from Horton, his immediate lessor, to mine over into lot 1223 ; and at the time of the fiowage of water from the abandoned mine into the mine of the plaintiff, he had for more than five years ceased to have any interest in lot 1222 or any right of entry thereon.

If the claim of the defendant as to what constituted the cause of action is correct, the action clearly cannot be maintained. 1. For the reason that at the time of the commission of the trespass, the plaintiff was not the owner of the land upon which the trespass was committed; ■ and, 2, if he had been such owner, the action would be barred by the statute of limitations.

There is no distinction in the application of the statute of limitations between trespasses under ground and upon the surface ; nor whether the cause of action is known or unknown to the plaintiff within the time limited by the statute. Hawk v. Minnich, 19 Ohio St. 466 ; Hunter v. Gibbons, 1 Hurl. & Nor. 459.

The question therefore is, whether the defendant, in addition to the liability for the trespass, is also liable for creating and continuing a nuisance. If he is so liable a recovery for the trespass would be no bar to subsequent actions for continuing (he nuisance.

In Stephen’s Commentaries (vol. 3, 499), a private nuisance is defined to be anything done to the hurt or annoyance of the lands, tenements, or hereditaments of another, and not amounting to a trespass.”

Here the only thing done by the defendant was the mating of the excavation upon the plaintiff’s land, which did amount to a trespass.

Plaintiff’s counsel claim that the action is brought to recover consequential damages resulting from the wrongful acts of the defendant. Be it so. But with what wrongful acts is the defendant chargeable except those constituting the trespass ? We see none. And a recovery for the trespass or the bar of an action brought for it, is a bar to a recovery for the consequences resulting from such trespass. True, this is not the ground upon which the jury were charged, but the error in the charge was in favor of the plaintiff, and is no ground for reversal.

Judgment affirmed.  