Nature of the Case
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Facts
P bought property pursuant to a mining rights clause set forth in an earlier deed conveying to a predecessor in title in 1921. They erected a dwelling and drilled a well to supply water. Things were great until May or early June of 1978. In 1977 P purchased a mobile home and installed it on the property for their son's use. A second well was drilled, and from its installation until the same period in late May or early June of 1978 the supply was plentiful and potable. D owns mining rights under the entire property. Ps own the surface rights to a small section of this tract. D owns surface rights in addition to subsurface rights to a portion of the tract contiguous to Ps' property. D began to expand its operations. An airshaft built 540 and 600 feet from Ps' two wells. Well #1 went dry. Two or three days later, well #2 became polluted. Neighboring properties also experienced similar problems with their wells. Since June of 1978 Ps have had a tank installed at their residence and their son-in-law hauls water from his own home to theirs in 55-gallon lots daily. Ps travel two miles to the home of their son-in-law and daughter to shower, and must now take their laundry to the laundromat twice weekly instead of using the washer in their basement. Well # 2 can be used to flush the commode in the trailer, but cannot be used for cooking, cleaning, bathing, or drinking. Ps sued D for nuisance. Costs of hauling water attempted well repair, and laundry amounted to some $7,000 worth of out-of-pocket expenses. Real estate experts testified the loss of value in the land without any source of usable water to be $32,000. D presented a mining engineer, who opined that deeper drilling was 'reasonably certain' to find water, and later estimated the degree of certainty as '98%.' A jury found for Ps in the amount of $ 32,500. D appealed.
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