#### Penn Gas Coal Co. *v.*Versailles Gas Co. Westmoreland Coal Co. *v.*Versailles Gas Co.

In granting the coal to a coal company, the owners of the land executed a release of the right to the support of the surface. Anatural gas company threatened to enter upon the surface, by right of eminent domain, for the purpose of laying gas pipes, without giving security to the coal company. The supreme court held; on a bill for an injunction by the coal company, that the gas company, as grantee of the right of eminent domain from the state, was not bound by the release, and was therefore liable in damages to the coal company — unless it elected to be bound by the release, in which case there would be no liability for damages, and the injunction should then be dissolved. The coal company moved for a re-argument or a modification of the decree on the ground that the dangerous nature of the natural gas made it incumbent on them to maintain subjacent support, and to permit the gas company to avail itself of the release would result in taking their property without compensation. The motion was refused.

March 15, 1890.

Motion for modification of decree or for re-argument of writs of error, Nos. 20 and 21, Oct. T., 1889, reported in 131 Pa. 522.

The motion was as follows :

*731“The appellants move the court for a modification of the order and decree of March 10th, 1890, or for a re-argument, as to the court shall seem proper, and assign for said motion the following reasons:

“ 1. Because to permit the appellee to file a release practically renders the court’s ruling in favor of the appellants’ rights of no avail.

“ 2. Because to permit the appellee.to file a release is to authorize a taking of appellants’ property without either the compensation or security to which this court have said they are entitled.

“ 3. Because the appellants, even if a release be given, will be compelled, for their own protection, to leave coal in place, and their property will thus be taken without compensation.”

*M. Hampton Todd*and *Geo. Tucker Bispham,*for motion,

filed the following argument. — The order and decree made by this court in reversing the decision of the court below is coupled with a stipulation [viz., that, if the appellee released its right to subjacent support, no injunction should issue], the full effect of which it is desired to bring to the attention of the court. It is thought proper by the counsel for the appellants to do this, as, without such special attention being directed thereto, the effect might not be apparent. It is believed that, when full consideration is given to the result which necessarily will follow the insertion of the stipulation in the decree, the court will be of the opinion that the stipulation is antagonistic to the rights of the appellant as declared by the court itself.

The Versailles Company entered without permission, and without giving bond or tendering security, upon land in respect of which the Coal Companies had certain rights. The Coal Companies claimed that this was a taking of their property for public use. They alleged that this was so for two reasons : 1st, because, when the Gas Company exercised its delegated right of eminent domain, it imposed upon the Coal Companies a servitude, by virtue of the exercise of the right itself, with which they were not burdened before, namely, the obligation to support the surface; and, 2d, because the nature of the occupation by the Gas Company was such that the Coal Companies were necessarily obliged, in self-defense, and for their- own protection, against danger of the most serious character, to leave coal in place, and, this being so, the release by the surface owner of the right to subjacent support was practically rendered of no effect, for the action of the Gas Company, proprio vigore, compelled the rendering of the support.

The opinion of this court, delivered on the 10th instant, is hereunto annexed. In it the court say: “ The loss in value to the tract by reason of the appropriation of part of the coal to the support of the surface, is a proper subject for compensation by the viewers appointed to assess damages.”

Now, when did this appropriation take place? It is well settled by all the authorities that it took effect the instant that the defendant *732took possession of the surface for the purpose of laying down its pipe line. But if this is so, the defendant, when it entered upon the surface, as it has done, appropriated so much of the appellants’ coal as was necessary for the support of the surface, and this appropriation gave to the appellants an immediate right of action for the assessment of damages done by such taking. The appellants were not bound to file a bill. They could at once have instituted the proper proceedings for the ascertainment and collection of the damages. The effect of filing the bill is merely to compel the appellees either to give sufficient bond for the damages, or to remove their pipe line.

If these positions be true (and they would seem to be incontrovertible), then, we submit, that the appellee should not be permitted to agree “ to be bound by the release of support by the owners of the surface.” Suppose such a release should be filed, do the appellants thereby lose their right of action for the appropriation of their coal which has already taken place ? If we had an accrued right of action, how could any right of the appellant deprive us of it ?

It is no answer to this position to say that a release from liability to give subjacent support relieves the appellants from all injury in this case. It ignores the second of the above-mentioned reasons upon which, as has been stated, the taking is placed. Natural gas is shown by the affidavits on file to be, in its very nature, so highly dangerous that the Coal Companies will be compelled, for self-protection, to leave the coal in place. They cannot afford to take the risk of a break in the surface, for a single break might fill the mine with natural gas, and the explosion which would most certainly ensue would destroy tens of thousands of dollars of property, and perhaps a large number of human lives.

A paper release by the gas company does not do away with the physical fact of the existence of the pipe. It is the existence of this physical fact, as well as the legal obligation, which compels the Coal Companies to leave coal in place. The release of the legal obligation has no effect upon the existence of the fact.

Moreover, may it not well be doubted whether the public franchise of taking private property for public use can be split up. Has any corporation which possesses such a franchise the right to surrender or transfer to any individual an incident to it, the loss of which would render its exercise highly dangerous to the community? What would be said of a grant by a railroad company which gave to the owners of a ravine, which was crossed by one of its bridges, the right to saw away the supports? And, if such a license would be against public policy, is it not still more against public policy that the gas company should have the power to release the right of 'support which is essential for the safe exercise of its public franchise ?

The questions involved are new, and counsel are not unaware that the appellate court, approaching them for the first time, might be loath to hold the law so strictly as to interfere with the develop*733ment of a new and valuable industry, particularly after hearing on ex parte affidavits; but they respectfully submit that it is not asking too much of the app'ellee to compel it to give a bond in a sufficient amount, with adequate sureties, to protect the appellants in the payment of any possible damages that a full investigation and inquiry may show they are entitled to recover. Such a course does harm to no one, and secures a substantial justice. But to permit this defendant to file a release of liability for adjacent support not only simply remits the appellants to an action to assess damages without a bond to secure their payment, but necessarily, and from the very nature of things, imposes upon them a servitude from which this court, by its decision, has said they ought to be free.

March 17, 1890.

*James S. Moorhead, Knox & Reed*and *John B. Head,*for appellee,

filed no answer to the motion.

Per Curiam,

Motion refused.

H. J. L.