Atherton v. Clearview Coal Co.

Citations

• 267 Pa. 425
• 110 A. 298
• 1920 Pa. LEXIS 884

Syllabus

<p>Practice, Q. P. — Statement of claim — Amended statement— Pleading.</p> <p>1. Where an amended statement of claim is filed by leave of court, it is virtually a withdrawal of the first, except where the new statement changes the cause of action.</p> <p>Mines cmd mining — Injuries to property — Release of damages— Deed — Reservation and exception — Absence of ambiguity — Public policy — Personal rights — Constitution—Statement of claim — Practice, C. P. — Act of May Dj, 1915, P. L. If88.</p> <p>2. In an action of trespass against a coal company to recover damages for injuries to property, it appeared that plaintiff and defendant claimed their respective titles from a common source, and that the deed to plaintiff contained this provision: “Excepting and reserving, however, unto the said parties of the first part by such legal terms as shall he sufficient in law, all coal and minerals beneath the surface of said lot, with the sole right to mine and remove the same by any subterranean process, without liability under any circumstances whatever for damages done to the surface of said lot or to the improvements now erected or hereafter to he erected thereon.” Plaintiff in the statement of claim •averred injuries from failure to support the surface. By leave of court an amended statement was filed in which the plaintiff eliminated all reference to surface support and averred that on two dates, specifically stated, “defendant, while engaged in mining its coal under the land of plaintiff and land adjacent thereto, by its officers, agents and employees, negligently and carelessly used and employed, discharged, and fired large quantities of dynamite and other high explosives, in blasting, thereby causing concussions which broke, cracked, disturbed and damaged the land and buildings, and the foundation wall, walls, roofs, floors, chimneys, windows, doors, steps, porches, plaster, painting, wall paper, gas, water, steam pipes, furnace, sidewalks, and retaining walls,” and furt