(after stating the facts). It is contended, first, that the court erred in allowing copies of the pleadings in the ease to be substituted for the lost originals without requiring a compliance with the statute relating thereto. Sections 6504-6-8, Kirby’s Digest. Appellant makes no contention that the substituted papers were not correct copies, nor does it show any prejudice or injury resulting to it from the court’s action in permitting them be to filed, and the court committed no error in reinstating them of record. Fort Smith Automobile & Supply Co. v. Nedry, 100 Ark. 485.
It is insisted by appellant that it had the right to operate its mine; and if, in the operation thereof, it was flooded with an unusual quantity of water that would not have flowed into appellee’s mine but for the opening between the two, wrongfully made by appellee in crossing the dividing line in its mining operations in the first instance, it can not be held liable for the resultant damages.
The court instructed the jury that the making of such an opening or connection between the two mines in that way would not justify defendant in causing a greater amount of water to flow into the mine of appellee than such as would result ordinarily from the conduct of the mining operations of appellant, and that if the appellant knew of the existence and location of the underground body of water, or by the exercise of ordinary care should have known that its action in releasing or discharging the same into its own mine would result in causing greater quantities of water to flow into the mine of appellee to the damage of appellee, and that appellant wilfully, carelessly or negligently discharged or released great quantities of water into its own mine, and that it flowed in great quantities into the mine of the appellee, the appellee could recover for the damages caused thereby; that it was the duty of appellant to exercise ordinary care in the use of its property in order to avoid injury to the property of appellee; that if it carelessly, negligently or wilfully discharged the water from the abandoned mine south of its workings into its own mine, and the same flowed through it in great quantities into the mine of appellee to its damage, and if appellant knew at the time it released the water into its own mine, or could have known by the exercise of ordinary care, that same would flow into the mine of appellee and injure and damage it, it would be liable therefor.
It also told the jury that, if appellant acted in the matter in dispute as a reasonably prudent person would have done in his own affairs, it was not liable, and that, in order for appellee to recover, it must show that appellant’s work in connection with the body of water underground was done carelessly, negligently and in disregard of appellee’s rights.
The authorities seem to agree that the owner of a mine on a higher level may permit the water to flow where it naturally will in the course of ordinary mining, and is not bound to protect the mine owner upon a lower level from such water, each mine owner being required to make for himself proper provisions for drainage and against flooding so far only as to water coming into the mine in a natural way and in the ordinary course of mining. If an injury is caused from the natural flow of the water from the higher level to the lower mine, no liability results; but, if from the act of the party, he is liable for it. The Law of Mines and Mining in the U. S., Barringer & Adams, 630; 2 Snyder on Mines, § § 1050-1; 2 Lindley on Mines, 807.
“Where, however, the owner of one mine conducts into che adjoining mine water which otherwise would not go there, or causes water to go there at different times, or in quantities greater than it otherwise would, he is liable for the damage resulting.” Law of Mines and Mining in U. S., supra.
“One miner may not turn or pump his water into his neighbor’s mine; but he is not liable if it goes there by seepage or gravitation if induced or accelerated by no act of his. * * * A practical application of the maxim, “so use your own as not to injure others,” controls in such cases. 2 Snyder on Mines, § § 1051, 1054.
One of the text writers states the rule deducible from the authorities as follows: “It is the duty of the highest proprietor, whether his vein be the one which continues on into his neighbor’s or whether it be an upper stratum having a communication into a lower one, to take all reasonable care of his debris and his water; but he is not carried beyond the rule of ordinary care, nor made responsible for consequences not flowing from negligence or wilfulness, if he operates his mine in a careful or skilful manner, and if a loss occurs therefrom it is damnum absque injuria. * * * But the owner of the upper mine can not suffer the flow of his gangway to run down upon the lower mine, when by reasonable diligence he can prevent it. And where there are two mining operations, one owner working on the upper level and one on the lower level of the same vein, which means farther down on its dip, the owner of the upper level, operating in the most approved method and with care, is not required to control the natural flow of the water downward; that is, such water as may percolate through fissures or otherwise, and which he can not control by the exercise of reasonable care and prudence.” Snyder on Mines, § 1058.
In England, an extreme or stricter rule of liability was laid •down in the case of Fletcher v. Rylands, L. R. 1 Exch. 265, holding in effect that whenever a person brings or keeps upon his land anything likely to do mischief, if it escapes, whether beasts, water, filth or stenches, he does so at his peril,.being liable for all damages ensuing to his neighbor, if he fails to keep it, water especially, properly on his own property; but later modified to some extent in Fletcher v. Smith, 2 L. R. App. Cases, 781.
This case, however, was not tried upon the theory of liability for a dangerous agency, water, allowed to accumulate upon appellant’s premises and escape therefrom, causing injury to the adjoining owner, appellee, but upon the theory of negligence of appellant in permitting, or causing, great quantities of water to escape and be discharged into its own mine, knowing at the time that it would flood the mine of appellee unless prevented and without making any preparations to prevent it so doing.
Appellant knew of the existence of the old mines, that they were near together, one of about forty acres in extent, the smaller of from five to eight acres upon its land, that both had been long abandoned, and that the Great Western was filled with water. It made no effort to ascertain whether there was •any connection between the old mines, although it knew there was no map of the workings, before drilling into the Great Western and releasing the large quantity of water, known to be therein, into its mine, although it knew it would flood appellee’s mine, if not prevented by it. It gave appellee no notice, after the water began to seep into the mine, and before it was released by it, that they were about to release the water, that appellee might take such precautions as it deemed necessary for its protection, its only excuse being that it expected to be able to take care of the water in its old mine, and did not-know of its connection with the other old mine, and that all the water therein would be discharged as well.
The exercise of ordinary care would have required that it make reasonable effort to ascertain the quantity of water that would be discharged by drilling into the old mine and the kind of water, if it was dangerous to and destructive of machinery, with which it expected to pump it out, as well as proper preparation to take care of the flow and prevent injury to the adjoining proprietor, and also that it should have given notice to appellee of its proximity to the underground body of water and of its intention to release same, that it could have had an opportunity to protect itself. Having failed to do any of these things, the jury were warranted in finding it negligent and holding it liable for the injury.
The mine was closed for twenty days, its output at the time being from 175 to 200 tons of coal per day, produced at a cost of $2.20 per ton and of the value of $3.85, when mined.
Appellee was at an expense of from $25 to $30 per day for twenty, days, in attempting to remove the water from its mine, and its pumps of the value of $400 were destroyed and the boilers and engines of its mining machinery badly damaged by the corroding acids of the water. Under the circumstances, we do not regard the damages of $1,000 assessed by the jury as excessive.
2. If the allegations of incorporation of appellee can be regarded as put in issue by the answer that appellant had not sufficient knowledge and information to form a belief about whether it was a corporation, we think there was sufficient evidence to show that it was incorporated.
Finding no prejudicial error in the record, the judgment is affirmed.