Opinion
per Curiam.The appellee brought in the Circuit Court of Vermilion County an action on the case against the appellant to recover damages to certain of his land in that county, alleged to have been the result of the removal by the appellant of the underlying strata of coal therefrom, without leaving sufficient support for the surface.
The land was owned by the appellee in fee simple, subject to the express right of the appellant “ to mine, dig or excavate the coal and other mineral therein, and to erect necessary machinery for so doing.”
At the time this suit was commenced, the appellant had taken a considerable portion of the coal from the land and was at work taking the rest. Some parts of the surface of the land subsided from one to two and one-half feet by reason of the appellant’s taking out the coal and not leaving sufficient support to sustain the surface.
The jury who tried the case allowed $6,000 to the appellee as damages, for which the court gave him judgment, and the appellant prosecutes this appeal to reverse the judgment, urging, as error, that the court admitted improper evidence, gave improper instructions, refused proper instructions, and that the damages are excessive.
The court, over the objections of the appellant, permitted the appellee to prove that in the opinion of the witnesses more of the land would subside as a result of the coal that had been taken out, without leaving sufficient support therefor, before this suit was commenced, and that the appellant would hereafter take out the balance of the coal from the land without leaving sufficient support for the surface and thereby causing more of the surface to subside; and instructed the jury to allow the appellee damages for such subsidences of the surface of the land as had occurred at the time this suit was commenced, and which would occur thereafter. And the amount of damages shows that the jury allowed a large part of the damages for prospective subsidences of the surface of the land.
Under the evidence, the appellant had the right to take the coal from the land, but hot to destroy or injure the superincumbent soil, and in removing the coal, the appellant should have left support sufficient to maintain the surface in its natural state. Wilms v. Jess, 94 Ill. 464.
Tor the damages occasioned from subsidences of such parts of the land as had taken place at the time this suit was commenced, the appellee could in this action, recover, but not for such as might thereafter occur. McConnel v. Kibbe, 33 Ill. 175.
The court therefore improperly admitted the evidence objected to by the appellant and improperly gave the instructions complained of by it, and improperly refused to instruct the jury, as requested by the appellant, that the appellee could only recover damages for subsidences of the surface that had taken place at the time the suit was commenced.
And the amount of the damages awarded being greatly in excess of the damages which had accrued at the time this suit was commenced, the improper rulings of the court on the evidence and instructions were prejudicial error, for which judgment will be reversed and the cause remanded.