Garland Coal & Mining Company v. Few, 6026.

• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)
• Writing for the Court: BRATTON, , PICKETT, Circuit , and KNOUS
• Citation: 267 F.2d 785
• Parties: GARLAND COAL & MINING COMPANY, a corporation; Canadian Mining Company, a corporation; Sallisaw Stripping Company, a corporation; and Ernie Young, an individual, d/b/a Cary Construction Company, Appellants, v. Clifton FEW, Appellee.
• Docket Number: No. 6026.,6026.
• Decision Date: 27 June 1959

267 F.2d 785 (1959)

GARLAND COAL & MINING COMPANY, a corporation; Canadian Mining Company, a corporation; Sallisaw Stripping Company, a corporation; and Ernie Young, an individual, d/b/a Cary Construction Company, Appellants,
v.
Clifton FEW, Appellee.

No. 6026.

United States Court of Appeals Tenth Circuit.

May 27, 1959.

Rehearing Denied June 27, 1959.

267 F.2d 786

Anna B. Otter, Oklahoma City, Okl., and Kelly Brown, Muskogee, Okl. (John R. Couch of Pierce, Mock & Duncan, Oklahoma City, Okl., with them on the brief), for appellants.

Woodrow H. McConnell and Ranel Hanson, Oklahoma City, Okl., for appellee.

Before BRATTON, Chief Judge, PICKETT, Circuit Judge, and KNOUS, District Judge.

PICKETT, Circuit Judge.

This action was brought by the owner of a 110 acre farm in Haskell County, Oklahoma, against three corporations and one individual who were jointly engaged in strip coal mining operations on lands adjacent to the plaintiff's property. The plaintiff alleged that the defendants' activities created a continuing nuisance and also caused damages from trespass. Damages were sought for injury to plaintiff's real property, improvements and crops; for loss occasioned when the mining activities necessitated an otherwise unplanned sale of livestock; for personal injury consisting of extreme mental anguish, physical discomfort, inconvenience and annoyance; and for loss of the services and companionship of plaintiff's wife and for the necessary expenses of her medical care. The plaintiff also sought punitive damages and a judgment enjoining certain of defendants' activities and requiring the abatement of certain conditions.

There was no evidence to sustain the claims with respect to the livestock or the medical expenses and loss of consortium, and the case was submitted to a jury only upon the questions of actual damages for injury to plaintiff's property, punitive damages and damages for inconvenience, annoyance and discomfort of plaintiff. The jury returned a verdict in favor of the plaintiff in the sum of $4,500 actual damages, $3,625 punitive damages, and $500 actual damages for inconvenience, annoyance and discomfort. The verdict for actual damages of $4,500 was reduced by a remittitur to $2,419.51, and judgment in the sum of $6,544.51 was entered against the defendants. The court, concluding that certain of defendants'

267 F.2d 787

mining operations created a nuisance, ordered the abatement of those conditions which interfered with natural water courses on lands adjacent to plaintiff's property and enjoined such of the activities as damaged plaintiff in the free use and enjoyment of his land. The principal questions raised on appeal relate to instructions as to damages to plaintiff's property resulting from the alleged nuisance, the right to punitive damages, and abatement of conditions interfering with the natural flow of water

Plaintiff's evidence established that in 1941 he purchased the farm in question, at which time there was a limited amount of coal mining activity in the area. A six room house and other buildings were constructed, along with additional improvements, at a total cost of approximately $6,500. In 1951 there was some coal mining activity near plaintiff's property conducted by others than those involved in this action. In October, 1954 the defendants moved heavy machinery onto the property adjoining the plaintiff on the north, and began strip mining operations which, for the purpose of obtaining coal, necessitated the removal of the overburden from the underlying coal deposits. Within a short time the operations were extended to the property adjoining the plaintiff on the east. Throughout the time that the mining activities were being conducted by these defendants, explosives were used to loosen the overburden, which was then removed in long strips and placed in piles called "spoil banks", next to the pits formed by this removal process. After removal of the coal, these pits were 40 to 50 feet in depth. Plaintiff testified that heavy charges of blasting powder,¹ some of which were exploded within 85 feet of his house, knocked putty from the windows of the house, caused its floors to sink, its foundation and walls to crack inside and outside, ruined his water well and damaged his outbuildings. He also testified that in addition to the dust caused by the blasting and use of machinery, the existence of the large piles of overburden, with coal dust on top, caused large amounts of dust to be blown onto his property and into his home and buildings; that the spoil banks 20 to 25 feet in height also had the effect of damming several natural water courses and diverting water into a single channel, thereby causing portions of his property to be excessively flooded during heavy rainfall, and that the digging of the deep pits created an unnatural drainage situation which caused his orchard to die for lack of water. Plaintiff also testified that the heavy machinery, in removing the overburden and coal, operated a very short distance from his house and property, twenty-four hours a day, and that trucks carrying coal passed within 15 feet of his house, creating additional noise and dust;² and that the terrifying noise of the machines

267 F.2d 788

so close to the house prevented sleep at night. Plaintiff testified that he complained to the superintendent and other employees and asked that something be done to relieve the condition, but that he obtained no relief

The court instructed the jury that a nuisance results when a person so uses his property as to cause a substantial injury to the property of another, and then stated that "If the facts show the mining operations were being conducted in such manner as to constitute a private nuisance causing a substantial injury to the property of the plaintiff, then the plaintiff may recover compensation for the injury sustained, and the Constitution of Oklahoma provides that no private property shall be taken or damaged for private use with or without compensation unless by consent of the owner, and in cases of this character, the use need not be of a careless or negligent nature. Even though the defendants might not have been guilty of carelessness or negligence, as would be required in ordinary lawsuits, if in the use of their property along adjacent to the property of plaintiff, in their mining operations, they caused substantial injury to the property of the plaintiff, he has a right under the law to recover as for a private nuisance." The defendants urge that this instruction is a statement of strict liability, or liability without fault, and is an unwarranted interpretation of Article 2, § 23 of the Oklahoma Constitution.³

This case arose in Oklahoma, and, of course, is controlled by Oklahoma law. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188. In a long line of decisions the Oklahoma courts have sustained recoveries under conditions and circumstances such as are shown here, without proof of negligence on the part of the defendants. City of Muskogee v. Hancock, 58 Okl. 1, 158 P. 622, L.R.A.1916F, 897; Tibbets & Pleasant v. Benedict, 128 Okl. 106, 261 P. 551; Fairfax Oil Co. v. Bolinger, 186 Okl. 20, 97 P.2d 574; Phillips Petroleum Co. v. Vandergriff, 190 Okl. 280, 122 P.2d 1020; British-American Oil Producing Co. v. McClain, 191 Okl. 41, 126 P.2d 530; Seismograph Service Corp. v. Buchanan, Okl., 316 P.2d 185;⁴ Smith v. Yoho, Okl., 324 P.2d 531; Superior Oil Co. v. King, Okl., 324 P.2d 847.

267 F.2d 789

While seemingly conceding that the Oklahoma decisions have construed Art. 2, § 23 of the Constitution to permit recovery without a showing of negligence in cases of this type, the defendants contend that each of those cases was premised on a tacit determination that the complained-of activity was of an ultrahazardous nature. From this, they urge, it follows that the instruction in this case was erroneous because it authorized recovery, without a finding of negligence, for all damage to the plaintiff and his property, even though some, if not all, of this damage was caused by activity that was not ultrahazardous. Although some of the cited cases arose out of situations which might be classed as ultrahazardous, there is no indication that the Oklahoma courts intended to limit the applicability of the constitutional provision to only such situations. In City of Muskogee v. Hancock, supra, the court held that the use of explosives in a populous area and within a few feet of plaintiff's building subjected the defendant to strict liability for damage caused by vibration and concussion. However, the court was troubled by the decisions in some jurisdictions, to the effect that absolute liability is imposed where the blasting causes physical objects to be propelled onto the plaintiff's property, but that where the injury results solely from concussion and vibration, recovery must be predicated on a showing of...