railroad cannot excavate on right-of-way so as to cause fee owner’s coal mine to collapse
How later courts described this case
- railroad cannot excavate on right-of-way so as to cause fee owner’s coal mine to collapse
Written by the judges who cited it.
The opinion
Dissenting Opinion.
Morris, J.
I am of the opinion that the petition for rehearing should be granted. I think appellant is correct in its contention that the ninth paragraph of complaint proceeds on the theory of liability for loss of profits. This appears to be the theory adopted by the trial court in its instructions to the jury, and it should prevail here. On such theory the paragraph was insufficient to repel a demurrer for want of facts.
I think there was error also in sustaining the demurrer to the third paragraph of appellant’s answer which was addressed to the third paragraph of complaint. This error was not rendered harmless unless evidence of all the material facts therein pleaded was admissible under other paragraphs of answer, and I am satisfied it was not.
Note. — Reported in 104 N. E. 301 ; 108 N. E. 9 . On the liability of a railroad company in constructing its roadway, for removal of lateral support to adjoining property, see 21 L. R. A. (N. S.) 318. See, also, under (1) 38 Cyc. 1078; (2) 31 Cyc. 84; (3) 15 Cyc. 804; (4) 3 Cyc. 388; (5) 31 Cyc. 358; (6) 33 Cyc. 165; (7) 38 Cyc. 1041; (8) 14 Cyc. 1208; (9) 33 Cyc. 189; (10) 38 Cyc. 1599; (11) 38 Cyc. 1724; (12) 15 Cyc. 704; (13) 38 Cyc. 1788; (14) 33 Cyc. 188; (15) 38 Cyc. 1502; (16) 3 Cyc. 386.