On Motion for Rehearing.
While the petition of the Portsmouth Refractories Company does not ask that the Harbison-Walker Refractories Company be enjoined from the operation of its coal mine upon the 250-acre tract described in its petition for reasons other than as averred in its petition, that the alleged grant from Devi D. York to the defendant is null and void and of no force and effect, and in conflict with the rights of the plaintiff, and subservient to the rights of the plaintiff, nevertheless evidence was introduced, without objection, tending to show that it is operating its coal mine in such near proximity to plaintiff’s coal mine that in one place it has broken through and into plaintiff’s mine.
It is therefore further ordered and adjudged, upon the motion for rehearing, that the plaintiff be permitted by the District Court to amend its petition in this respect to conform to the evidence, and that upon such amended petition the Harbison-Walker Refractories Company be enjoined from operating its present coal mine in the direction of the present workings of the appellee’s coal mine, but may work the same only in an easterly and soutnerly direction, until it reaches and passes the east dotted line on the map of the Portsmouth Refractories property referred to in the decree of the District Court.
The motion for rehearing is overruled.