Definition and Legal Foundations of Mining Damage
Ein Mining Damage refers in German law to an impairment to third-party properties, buildings, or assets caused by the operation of a mine. The term is closely connected with mining law and encompasses both material and immaterial damages that may result from mining activities, in particular from the underground extraction of mineral resources. The identification, regulation, and compensation for mining damages are governed by various laws and play a significant role in regions shaped by mining.
Legal Foundations
Federal Mining Act (BBergG)
The Federal Mining Act (BBergG) regulates the legal framework for mining in Germany and defines in § 114 BBergG the right to compensation in the event of mining damage. It distinguishes between damages arising from the operation of a mine and those occurring due to the effects of mineral resources on the subsoil or surface. The injured party generally has a claim against the mining company for rectification or compensation.
German Civil Code (BGB)
Insofar as the Federal Mining Act does not contain special provisions, general civil law regulations apply in addition, in particular §§ 823 et seq. BGB (tort liability) as well as property and neighbor law.
State Law Provisions
In addition to federal law, there are sometimes specific state law regulations, such as the Prussian Mining Act or administrative provisions issued by state mining authorities, which serve the protection, determination, and regulation of mining damages.
Types of Mining Damages
Property Damages
Typical mining damages include settlement cracks, ground subsidence, deformation of buildings, disruptions to infrastructure facilities (such as roads, sewers, or pipelines), as well as impairment of agricultural land.
Consequential Damages
Consequential damages can arise if the primary damage causes follow-up effects, for example, water ingress in basements due to mining-induced ground movements, or damage to ecosystems.
Financial Losses
Mining damages are not limited solely to property damage: Purely financial disadvantages, such as the devaluation of real estate due to mining impacts, are also covered by the statutory definition of mining damage.
Liability and Requirements for Claims
Liability Basis
The mining company is liable irrespective of fault for all damages caused by mining activities to third-party property (strict liability). It is sufficient that there is a causal link between the mining activity and the damage that occurred. In individual cases, contributory negligence by the injured party may lead to a reduction of the claim.
Opposing Party
As a rule, the respective responsible mining company is the party against whom the claim is made. In cases of disputed legal succession or cessation of operations, former legal owners may also be held liable, provided they still exist and can be held accountable.
Claim for Compensation
According to § 114 BBergG, the owner of the damaged property may choose between rectification of the damage (natural restitution) or compensation in money. In the case of devaluation of the property, there is a claim for payment of the difference between the original and the reduced market value.
Procedure for Identifying Mining Damage
Reporting and Notification Obligations
A potential mining damage should be reported promptly to the competent mining authorities or the responsible company. Proof and documentation are essential in this regard.
Securing Evidence and Expert Opinions
For securing evidence and determining the extent of damage, publicly appointed experts are often engaged. In case of dispute, court-appointed evidence proceedings may also be initiated. The burden of proof for the causality of the damage regularly lies with the claimant (however, ‘prima facie’ evidence is generally sufficient for typical damages in active or abandoned mining areas).
Limitation Period
The claim for compensation for mining damage is subject to the standard civil law limitation period set out in § 195 BGB (three years). The limitation period begins at the end of the year in which the injured party became aware of the damage and the liable person, or would have become aware but for gross negligence.
Procedures and Dispute Resolution
Out-of-Court Settlement
In many cases, an amicable settlement with the responsible company can be reached, for example, by payment of compensation or the carrying out of remediation measures.
Legal Proceedings
If no agreement is reached, claims can be asserted through civil litigation. The competent civil courts decide on the nature and extent of the compensation claim. In court proceedings, expert opinions and technical securing of evidence play a central role in practice.
Special Features in Mining Damage Law
Old Mining Damages
In the case of damages from former mining activities (‘old mining’), there are special challenges in enforcing claims, particularly with regard to identifying the responsible company as well as the availability of financial means for compensating the damage.
Compensation for Free and Proprietary Mineral Resources
For certain mineral resources, the Federal Mining Act lays down specific provisions. It is necessary to consider whether the mining operator holds a permit, a license, or mining property rights. These aspects may have an impact on the basis for liability and the enforcement of claims.
Public Registers and Disclosure Obligations
A multitude of mining operations is listed in mining or mine field registers. Owners and affected parties can obtain information there about the affected fields, historical operational methods, and current company data in order to identify possible responsible parties.
Conclusion
The term Mining Damage encompasses a complex legal framework consisting of special mining law provisions as well as general civil law regulations. The most important claims include rectification and compensation claims against the responsible mining company, which may arise on a strict liability basis. Enforcement is supported by comprehensive procedural rules, measures for securing evidence, and special regulations for old mining. It is advisable for affected property owners and users to document the damage at an early stage and to examine the relevant provisions to assert their claims in a legally secure manner.
Frequently Asked Questions
Who is generally liable for compensation in the event of mining damage?
In the legal context, liability for mining damage in Germany is mainly regulated by the Federal Mining Act (BBergG). Pursuant to § 114 BBergG, the person who had the right to carry out mining operations at the time of the harmful event is generally liable, i.e., the so-called mining owner or the holder of an appropriate mining permit. Liability is strict, meaning it does not depend on proof of fault by the operator—the liability arises by mere causation of the damage. The mining operator can only be exempted from liability under strict statutory conditions, for example, if so-called ‘force majeure’ was the cause of the damage, which, however, is rarely recognized in practice. In the case of legal succession, for example due to company transfers, the new owner may, under certain circumstances, be held liable for damages that have already occurred or that only manifest subsequently.
What claims are available to injured parties in the event of mining damage?
Injured parties whose property or possession has been impaired by mining damage generally have a legal right to natural restitution, that is, restoration to the original condition. If such restoration is impossible or would entail disproportionate costs, there is a right to compensation in money. This results primarily from §§ 114, 117 BBergG. Furthermore, there may also be claims for consequential damages, such as loss of use, rental losses, necessary alternative accommodation, or, in some cases, the costs for precautionary hazard prevention. The key principle is that the injured party should be put in the position he or she would have been in had the damage not occurred. If the cost of restoration exceeds the market value of the affected property, compensation is generally limited to this market value.
What special provisions apply to mining damage to buildings?
Mining damage to buildings is often characterized by delayed detectability and specific causal relationships, which frequently make legal attribution more difficult. Under German law, in the case of damage to buildings, an easing of the burden of proof (reversal of the burden of proof) is typically applied in favor of the injured party (§ 120 BBergG). This means that, in the event of damage, it is generally presumed that it was caused by mining operations, provided the damage occurs in a typical mining region and during the relevant operating period. The mining operator must then, if necessary, provide counter-evidence that the damage is attributable to other causes. For remediation, owners are entitled to full restoration of usability and structural integrity; official standards and any stricter requirements must be taken into account.
What is the legal procedure for asserting a mining damage claim (regulation of mining damage)?
The procedure usually begins with the immediate written notification of the damage to the responsible mining operator. Subsequently, the operator must promptly record and document the damage together with the injured party. If no agreement is reached on the cause or extent of the damage or compensation, the Federal Mining Act, in particular § 122 BBergG, provides for the so-called mining damage procedure, which is usually conducted before an ordinary civil court in the event of disputes. In various mining regions, there are industry-specific conciliation or arbitration bodies designed to facilitate out-of-court settlements. In court proceedings, the plaintiff often benefits from the aforementioned reversal of the burden of proof in favor of the injured party. It should always be noted that potential claims are subject to limitation periods (usually three years from knowledge).
Who bears the burden of proof in disputes over the cause of mining damage?
In the area of mining damage, the Federal Mining Act provides, on the one hand, a considerable easing of the burden of proof for injured parties. This means that, if damage occurs in areas with active or former mining operations, and a mining-related causality seems likely, it is presumed that the mining activities were the cause of the damage (§ 120 BBergG). The mining operator then bears the burden of proof that the damage either was not caused by its operations or was caused solely by other factors. In practice, providing this evidence is often difficult for mining operators, especially if geological or structural pre-existing damage as a contributing cause cannot be ruled out.
What deadlines must be observed when asserting claims for mining damage?
The decisive legal factor for asserting claims for mining damage is compliance with limitation periods. According to § 195 BGB, the regular limitation period is three years from the end of the year in which the injured party became aware, or without gross negligence should have become aware, of the damage and the tortfeasor. In addition, § 199 BGB provides for an absolute limitation period of ten years from the occurrence of the damage, even if the injured party was unaware of it during that time. In exceptional cases, such as intentional acts, longer periods apply. Ongoing limitation periods may also be suspended by negotiations, conciliation proceedings, or the filing of a lawsuit.
To what extent is private insurance a legal substitute for the liability of the mining company in the event of mining damage?
Private insurance policies—such as standard residential building insurance or specific policies for natural hazards—do not generally provide primary cover for mining damage, as such damage is, by law, primarily to be compensated by the mining operator. Many insurance policies exclude mining damage from coverage or expressly limit liability for damage resulting from mining activities. Therefore, injured parties must regularly first approach the mining operator as the responsible party. Only if the responsible party cannot be identified or if there is no liable party or insufficient security, may the insurer cover the claim in exceptional cases; however, this must be clearly stipulated in the policy. Thus, as a rule, there is no option to choose between a compensation claim against the operator and an insurance benefit.
