When this case was previously before this court we said: "While the case before us is a rather close one, we think that according to the tests of every-day experience the court was justified in submitting to the jury the question whether or not the drying up of plaintiffs' springs was caused by the defendant's mining operations" beneath the plaintiffs' farm. Whether the connection between the mining operations and the drying up of the springs was causal or coincidental was entirely a matter of inference at that time. The evidence was purely circumstantial.
On April 11, 1932, we affirmed the judgment of the court below for $10,000 which plaintiffs obtained against defendant.
On May 17, 1932, the defendant filed a petition setting forth, inter alia, that "since the trial of said case, the defendant has learned the all-important and material *Page 235 fact, which defendant does not believe will be disputed by plaintiffs, that said springs have not been destroyed by any acts of the defendant or otherwise but that on the contrary, when, very shortly after said trial, rainfall set in, said springs began to flow in a normal and natural manner; that at all times since, the summer and fall of 1931 having been a season of normal though not excessive rainfall, said springs flowed freely and normally, supplying plaintiffs' farm and farm buildings with all plaintiffs' requirements of water and overflowing in the normal manner and to the normal extent; that such condition now continues, and that at all times plaintiffs have been aware of the same and have been using the water from said springs in the normal and usual manner."
To this petition the plaintiffs demurred, thereby admitting all of the facts pleaded.
These facts being thus admitted, it appears to me that the defendant is paying plaintiffs $10,000 for alleged damages never sustained and it is therefore entitled to the redress it is asking for at the hands of the court below, which redress is that judgment should be opened, the verdict set aside and a new trial granted.
This is not a case where a litigant seeks a new trial upon after-discovered evidence which by diligence might have been discovered earlier. Defendant could not have discovered that the plaintiffs' springs had resumed their normal flow until there had been a season of normal rainfall and until there was available data covering at least several months. It appears to me that defendant acted with all of the diligence required under the circumstances. The verdict of the court below was obtained on January 12, 1931. This judgment was not affirmed by the Supreme Court until fifteen months later, i. e., on April 11, 1932. Defendant's petition for reargument was refused by this court on May 9, 1932. Petition for rule to open judgment was filed on May 17, 1932, eight days thereafter. This to me indicates rather unusual *Page 236 diligence by the defendant. The majority opinion says: "It is to be observed, too, that no reason is given for not moving on or about March 1, 1932, as soon as the information is said to have been acquired. At that date, by appropriate petition, defendant could have brought the matter to the attention of this court before the appeal was disposed of on the merits as appellant then presented them."
I think the defendant can not be justly criticized for waiting until the Supreme Court had passed on the question then under its consideration before moving in the court below for the opening of the judgment. The defendant had an undoubted right to go before the court below when the record was remitted to it and ask that the judgment be opened. Surely the delay from March 1, 1932, when defendant was convinced that the springs had resumed their normal flow, to May 17, 1932, when they moved for the opening of judgment, a period of only two and a half months, is not unusual measured by the speed with which legal matters are customarily handled.
Furthermore, if there was any delay in this case the plaintiffs were not in the slightest degree harmed by it. If defendant is amerced of $10,000 for alleged damages which are proved by subsequent natural events to have been mythical, this court should brook no delay in undoing that injustice. The damages claimed and secured by the plaintiffs were supposedly based on facts; it is now admitted (for that is the effect of the demurrer) that they were based merely on erroneous conjecture.
In our opinion filed April 11, 1932, we said: "The testimony as to the drying up of the springs is as follows: 'A' spring began to fail in June or July, 1927, after that there was water in it only during extremely wet seasons. This spring was never as strong as before 1927. 'B' spring began to dry up in the summer of 1928 and the water in it was never afterwards sufficient for domestic use. 'C' and 'D' springs began to dry up about July, *Page 237 1930, and in November of that year they became entirely dry."
When this summary of plaintiffs' testimony, which resulted in a verdict for them, is contrasted with the facts alleged in defendant's petition and admitted by the demurrer "that at all times since, the summer and fall of 1931 having been a season of normal though not excessive rainfall, said springs flowed freely and normally, supplying plaintiffs' farm and farm buildings with all plaintiffs' requirements of water and overflowing in the normal manner and to the normal extent; [and] that such condition now continues . . . . . .," the conclusion is to me inescapable that the legal damages alleged by plaintiffs and on which the judgment of $10,000 was predicated were absolutely nonexistent, and that the dryness of plaintiffs' springs between 1927 and 1932 was due to an act of God (i. e., a season of drought) and not to the acts of defendant.
As the dissenting opinion of Judge GREER of the court below well expresses it: "The petition [of defendant] alleges neither fraud nor after-discovered evidence, at least not evidence that could by any possibility have been produced at the trial, but it does aver mistake. It alleges an act of nature not discernible until after final judgment, which under the pleadings is not denied. It is not inherent or included in the case at the time of the trial, but lay outside it, incapable of exact proof and only brought to light after the judgment was rendered. In point of fact it was nonexistent, and only came to life when normal conditions once again obtained. It meets the test of equity because (under the pleadings) the party could not have availed himself of the evidence at the trial, and is also now found to be clearly unjust. . . . . . . As the pleadings now stand the springs are admittedly back in full force and vigor, and if this be true, a wrong was inadvertently done defendant which it is the privilege if not the duty of the court, in the exercise of its equitable powers, to correct to the extent at least *Page 238 of overruling the demurrer and having plaintiff answer over. If, after testimony shall have been taken on the rule, a different set of facts is shown, and it is found that the evidence submitted is intrinsic and not extrinsic, and collateral to the questions formerly brought before the court, then the rule to open the judgment should be denied, otherwise a new trial will be a mater of simple justice."
I agree with Judge GREER and I would accord the defendant an opportunity to show that the springs whose alleged destruction by defendant's mining operations resulted in a judgment of $10,000 in favor of plaintiffs against defendant have resumed their natural flow and that the plaintiffs did not sustain the damages claimed.
Mr. Justice SCHAFFER joined in this dissent.