
    THE LITTLE SCHUYLKILL NAVIGATION, RAILROAD AND COAL CO. VS. TAMAQUA.
    Where the owner of land superintends the mining of coal by the tenant, he is liable for repairs to the highway rendered necessary, by a cave-in, caused by the mining.
    Error to the Common Pleas of Schuylkill County. No. 366, January Term, 1860.
    The facts of the case appear in the charge of the Court, delivered by
    Hegins, P. J..
    This action is brought to recover the money expended by the plaintiff in the repairs of a bridge on a road in the said borough where it crosses a coal vein on the land of the defendant," then occupied and worked by William Donaldson, as tenant. The road was laid out- and opened by the Court in 1854. In 1855, the outcrop and covering of the coal vein caved and fell in, where the road crosses the vein. The company then erected a temporary bridge over the chasm; afterwards, the bridge becoming unsafe from the continued caving in, the defendant erected the present bridge, for the repair of which the plaintiff claims compensation. The repairs became necessary and were made in 1858. The borough authorites gave notice to the defendant to repair the bridge which the defendant declined to do. (The defendant’s liability for the costs of these repairs, depends upon the cause which rendered the bridge necessary.) It is in proof that the coal in the vein above the water-level, was mined to a point west of the road, a long time before the road was laid out and opened. The ■shaft on the vein was sunk in 1854, and the coal mined below the water level in 1»55. Was the caving in of the road by the natural decay of the old workings, timbers, &c., above the water-level ? If it was, then the plaintiff is not entitled to recover. For the working of the vein at that point, having been long previous to the laying out of the road, the public took upon themselves the risk of the destruction of the road, by the caving in of these old workings, and the plaintiff must bear the expense of repair. (But if the jury believe from the evidence, that the caving in of the ground and crop was caused by the workings of the vein below the water level, or partly by these workings and partly by the natural decay of the old workings above the water level, both causes combining to produce the injury, the plaintiff is entitled to recover.) (The owner of the land as well as the tenant is answerable for the creation of a nuisance, such as occasioned here, whether done by the direction of the landlord or by the tenant, by negligence in mining, without the knowledge or direction of the landlord.) (It is in the power, and it is the duty of the landlord to guard against such an occurrence, by the provisions of the lease. The public have no right to direct the mode of the mining of the coal, and they should not suffer by the negligence, or unskillfulness of either the tenant or the landlord.) You will perceive therefore, gentlemen of the jury, that the proper decision of the case depends upon your view of the facts from the evidence. If you find for the plaintiff, you will ascertain the reasonable costs of the repair of the bridge, and allow interest on the amount from the time the money was expended.
    February 9th, 1860, verdict for plaintiff for $159.39.
    The company then took a writ of error, complaining of the portions of the judges charges contained in brackets.
    G. H. McGabe, E. O. Parry and C. Loeser, Esqs., for plaintiff
    
      in error cited: Starr vs. Offerman, 2 Barr, 394; and Earle vs. Hall, 2 Met., 355.
    
      A. W. Leyburn and F. W. & J. Hughes, Esqs., contra,
    cited: Woodring vs. Forks Township, 4 Casey, 361; 1st Russell, on Crimes 229, 230.
   The judgment of the Court below was affirmed by the Supreme Court on March 3, 1862, in the following opinion by

Lowrie, C. J.

A part of the road was destroyed by the caving in of the ground caused by the improper working of a coal vein of the defendant below, by their lessee, of the coal right; and the question is, whether the landlord or the tenant is liable for the repairs. Undoubtedly the rule is that the tenant alone is liable ; for usually, he alone can be chargeable with the misfeasance that causes it: Starr vs. Offerman, 2 Barr, 394. But in this case it is perfecty clear, that all the mining, especially with relation to the pillars to support the surface, was planned and directed by the agents of the defendant below, the landlord; and therefore the general rule just stated does not apply to this case. Under such circumstances the landlord is clearly liable. It was entirely unnecessary for the court to say that the landlord was liable whether he gave the directions or not; for the fact that they were-given is very clear on the evidence; and therefore we are not asked to affirm so broad a principle.

•Judgment affirmed.  