Harris Stanley Coal & Land Co. v. Chesapeake & O. Ry. Co., 9987

• Decision Date: 03 April 1946
• Docket Number: No. 9987,9988.,9987
• Citation: 154 F.2d 450
• Parties: HARRIS STANLEY COAL & LAND CO. et al. v. CHESAPEAKE & O. RY. CO. CHESAPEAKE & O. RY. CO. v. HARRIS STANLEY COAL & LAND CO. et al.
• Court: U.S. Court of Appeals — Sixth Circuit

154 F.2d 450 (1946)

HARRIS STANLEY COAL & LAND CO. et al. v. CHESAPEAKE & O. RY. CO. CHESAPEAKE & O. RY. CO. v. HARRIS STANLEY COAL & LAND CO. et al.

Nos. 9987, 9988.

Circuit Court of Appeals, Sixth Circuit.

April 3, 1946.

C. W. Napier and B. P. Wooten, both of Hazard, Ky., for appellants and cross-appellees.

LeWright Browning, of Ashland, Ky., for appellee and cross-appellant.

Before SIMONS, MARTIN and MILLER, Circuit Judges.

SIMONS, Circuit Judge.

The principal question in these appeals is whether a case had been made by the railroad for the granting to it of a permanent injunction. It sought to restrain certain operations by the coal company in its mine adjacent to the railroad right-of-way, the operations being alleged to threaten injury to the property of the railroad and to constitute a hazard to the freight and passenger traffic moving over its line. A temporary injunction pending consideration of the merits, was earlier granted but later dissolved. Upon full hearing a permanent injunction was refused and a counterclaim by the coal company for damages to its mine through removal of lateral support in the construction of the railroad in 1905 and the later removal of the railroad siding, was dismissed. No. 9987 is the coal company's appeal from the dismissal of its counterclaim; No. 9988 is the railroad's appeal from the denial of a permanent injunction.

The coal mine is in mountainous country on the west bank of the Big Sandy River, opposite the city of Prestonsburg, in Floyd County, Kentucky. Between it and the Levisa branch of the Big Sandy, and from 50 to 100 feet below the projected operations, lie the tracks of a branch line running from Ashland, Kentucky, to Elkhorn City, Kentucky, a distance of 130 miles, and serving the public as a transportation facility for both passengers and freight. This line was built upon a right-of-way secured from the owner of the coal property in 1905. Thereafter, the coal company acquired the land adjacent to the railroad, leasing it to the Middle Creek Coal Company which began mining operations in that year. In 1908, 1909 and 1910 the railroad constructed sidings in the mine and made extensions thereto as mining operations warranted. Middle Creek operated intermittently until 1930 when it abandoned the mine, and in 1934 and 1935 the sidings and extensions were torn up and removed by the railroad.

The increased need for coal occasioned by the war, led to the view that coal could still be profitably extracted from the mine, and in 1942 the property was leased to one Cameron, who assigned to Paintsville-Millers Creek Collieries, Inc., which resumed mining operations. In the previous operation of the mine a tunnel, known as the left entry, was driven into the mountain side. This lies immediately west of the railroad's right-of-way, between 50 and 100 feet above it and roughly parallel with it. Conforming to accepted mining practice, pillars of coal were left in the entry to support the surface of the land, and a barrier was left along the base of the cliff between the end of the coal seams and the outcropping of the coal on the surface. The major mining operations were to the right of the left entry. With resumption of operations in 1942, and with purpose to fully recover all coal within the mine, the lessee proposed to remove the pillars and approximately 50 percent of the barrier. This is known as "pulling the pillars," a practice well recognized in the coal mining districts of Eastern Kentucky. On June 15, 1943, the railroad filed its complaint to enjoin this operation, on the ground that it would destroy the only support for the land surface above the left entry, causing slips and slides down the mountain side to the injury of its right-of-way and of the freight and passengers moving on its line. The coal company answered that the pillars were not necessary for the support of the surface land, denied that their removal would injure the railroad's property or interfere with its operations, asserted that the railroad was estopped because it had encouraged the development of the mine for 33 years, and counterclaimed for damages due to the removal of the siding necessitating the hauling of coal by wagon, and for recovery of damage to its land by removal of lateral support in the original construction of the railroad in 1905.

Upon the issue of danger to the railroad property and operations thereon in pulling the pillars in the left entry and reducing the barrier, expert opinion evidence appears fairly well balanced, four qualified mining engineers attesting the danger and a like number denying it. There is, however, undisputed evidence to the effect that at a point 600 feet south of the place here involved, there had been a subsidence of the mountain side on to the railway track — a fact noted in the court's opinion, 56 F.Supp. 849, though not made the subject of a finding. The cause of this subsidence is not disclosed, but it may be assumed that no pillars were pulled at the point of the slide.

Notwithstanding the coal company's insistence that its proposed operations would not disturb the surface of the land, the court found that "there is possibility or even probability that the mountain side would slip or subside." It also found, however, that "it is not clearly shown to such an extent as to leave the mind of the court in no doubt that such slipping or subsidence would result in damage to the plaintiff's right-of-way." It thereupon announced as conclusions of law that the issuance of the injunction would cause great injury to the coal company, confer no comparable benefit on the railroad, that its right to an injunction is doubtful and that the railroad has a complete and adequate remedy at law either through money damages in the event of injury, or by incurring a comparatively small cost in protecting itself. As to the possibility that the mountain might fall at the time a train is at a particular point and injure or kill human beings, the court reasoned, in its opinion, that this would require a coincidence of events that can hardly be raised to the status of probability. At the most, such a happening would be a remote possibility and property damage, if any, not of such magnitude that it could not speedily and adequately be corrected. In explanation of its conclusion that the railroad could, at moderate cost, protect itself, and for that reason has a complete and adequate remedy at law, the court reasoned that because the railroad possesses the power of eminent domain and has, under the Kentucky Statute (K.R.S. 416.010) the right to condemn land to protect its right-of-way, it may avoid injury by purchasing or condemning the coal company's mine.

We consider the challenge to the decree denying permanent injunction, fully cognizant of the mandate of Rule 52(a), Federal Rules of Civil Procedure, 28 U.S. C.A. following section 723c, that "findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses." We are not here confronted, however, with any conflict of evidence as to evidentiary facts, nor with the credibility of witnesses. The issue is whether, in the light of all of the circumstances, there is threat of injury in the proposed operations of the coal company to the property of the railroad, and to the lives of passengers and crews upon its trains. The conclusion that there is or is not such danger, and if there is, whether it is imminent or remote, is one that a reviewing court is itself competent to draw. It remains free to draw the ultimate inferences and conclusions which evidentiary findings reasonably induce. Kuhn v. Princess Lida of Thurn & Taxis, 3 Cir., 119 F.2d 704; Globe-Union, Inc., v. Chicago Tel. Supply Co., 7 Cir., 103 F. 2d 722; Letcher County, et al. v. De Foe, 6 Cir., 151 F.2d 987. Nor was there here a determination based in any real sense upon relative credibility of opposing witnesses. The evidence relied upon was opinion evidence as to the likelihood of future happenings. It may be assumed that each group of experts deposed honestly as to what might or might not happen in the light of its experience and scientific knowledge. So the court thought, and so do we. Impending danger from the proposed operations or its absence was but an inference to be drawn from opinions, exhibits and attendant circumstances.

The primary test of equitable jurisdiction to grant a permanent injunction is whether there does or does not exist an adequate legal remedy for the injury sought to be prevented. What, in a given case, is or is not adequate legal remedy, must be determined in the light of the circumstances in each particular case. It has been well said that the legal remedy must not only be plain, speedy and...