Blue Diamond Coal Co. v. Neace
| Decision Date | 20 May 1960 |
| Parties | BLUE DIAMOND COAL COMPANY, Appellant, v. Wireman NEACE et al., Appellees. |
| Court | United States State Supreme Court — District of Kentucky |
J. W. Craft, Jr., Bruce Stephens, Jr., Hazard, for appellant.
D. G. Boleyn, Hazard, for appellee.
Blue Diamond Coal Company appeals from a judgment entered on a jury verdict awarding appellees, Wireman Neace and wife, $2,000 on their counterclaim against it for damages to their real property caused by the company's coal mining operations. It is contended that the trial court erred in overruling appellant's motion for a directed verdict and for judgment notwithstanding the verdict.
Appellees own the surface of 50 acres of land at or near the head of the hollow on Rock House Branch of Sixteen Mile Creek in Perry County. Their title is subject to the rights of the company as the owner of the coal and other minerals in, under and adjacent to their property through a deed from Z. H. Fugate et ux. to the Tennis Coal Company executed August 31, 1903, the terms of which are virtually identical with those quoted from the deed involved in Buchanan v. Watson, Ky. 1956, 290 S.W.2d 40, and describe the rights conveyed as follows:
'The following property, rights and privileges, in, of, to, on, under, concerning and appurtenant to the hereinafter described tract of land, which said property, rights and privileges are as follows, to-wit:
'All the coal, minerals and mineral products, * * * such of the standing timber as may be, or by the Grantee, its successors, or assigns be deemed necessary for mining purposes, * * * together with the right to enter upon said lands, use and operate the same and surface thereof, * * * in any and every manner that may be deemed necessary or convenient for mining, * * * and in the use of said land and surface thereof, by the Grantee, its successors or assigns, Grantee, its successors and assigns, shall be free from, and is, and are hereby released from liability or claim of damages to the said Grantor, their heirs, representatives or assigns. * * * and there is reserved to the Grantor all the timber upon said land, except that necessary for mining, and the purposes hereinbefore mentioned, and the free use of land for agricultural purposes, so far as such use is consistent with this property, rights and privileges hereby bargained, sold, granted or conveyed, and the right to mine and use coal for Grantor's own personal household and domestic purposes.'
Some years before the inception of this litigation the company had removed, by the conventional method of deep mining, all of the 'mineable' coal in a seam located in the hill above the appellees' home, leaving a fringe of coal in place between the face where the operation left off or was 'pulled back' and the line in the side of the hill where the seam of coal crops out to the surface soil. According to the company, the coal left in this fringe area was not mineable by the process of deep mining because the cost would be prohibitive. However, the newer process of auger mining makes it possible to remove the remnant economically by boring it out from the side of the hill. In order to accomplish this process it is necessary first to excavate along the side of the hill so as to remove the overburden of soil and 'bloom' (the low grade unmerchantable coal at the edge of the seam) and lay open a face into which the augers may be drilled. This preparatory operation partakes of the nature of strip mining, and it is necessary that in clearing away the overburden a rather broad, flat surface be left along the side of the hill for the location and operation of the mining equipment and for the loading and passage of trucks. This purpose is effected by simply shoving the soil and debris over and down the side of the hill.
The major item of loss to the appellees apparently lay in the timber destroyed in making the cut against the slope of the hill. In addition, some 25 acres of their land, including the garden, were invaded and certain improvements damaged by the stumps, rocks, coal and debris cast down the hillside.
The first question on this appeal is whether Buchanan v. Watson applies. It clearly does. See also Bevander Coal Co. v. Matney, Ky.1959, 320 S.W.2d 301. Therefore, the company was entitled to a directed verdict unless its rights...
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