Calhoun v. Kentucky-West Virginia Gas Co.

• Decision Date: 15 March 1948
• Docket Number: No. 10537-10539.,10537-10539.
• Parties: CALHOUN et al. v. KENTUCKY-WEST VIRGINIA GAS CO. KEEN et al. v. SAME. SWORD et al. v. SAME.
• Court: U.S. Court of Appeals — Sixth Circuit

166 F.2d 530 (1948)

CALHOUN et al. v. KENTUCKY-WEST VIRGINIA GAS CO.

KEEN et al. v. SAME.

SWORD et al. v. SAME.

Nos. 10537-10539.

Circuit Court of Appeals, Sixth Circuit.

March 15, 1948.

Jean L. Auxier, of Pikeville, Ky. (Jean L. Auxier and William J. Baird, both of Pikeville, Ky., on the brief), for appellants.

John L. Smith, of Catlettsburg, Ky. (John L. Smith, of Catlettsburg, Ky., and Joseph D. Harkins, of Prestonsburg, Ky., on the brief; Joseph D. Harkins, Jr. and Walter S. Harkins III, both of Prestonsburg, Ky., of counsel), for appellee.

Before SIMONS, McALLISTER and MILLER, Circuit Judges.

SIMONS, Circuit Judge.

The appellants all live in the vicinity of a large pumping plant at Dwale, in Floyd County, Kentucky, operated by the appellee. The plant was put into operation in November, 1941, furnishes the motive power for a long-distance pipe line transporting natural gas and contains heavier and more powerful machinery than has ever been before the subject of litigation in Kentucky. The Calhouns acquired their property before the plant was constructed and have lived there ever since. The Keens acquired their property after the pumps were put into operation, and the Swords are tenants who have lived in the vicinity since the completion of the plant. The appellants sought damages for injury to themselves and their homes because the machinery of the plant caused such violent quaking of the earth that their houses and other possessions were injured and their peace and quiet disturbed, with physical and mental suffering resulting.

The court below concluded that under Kentucky law recovery for injuries resulting from nuisance is limited to those owning real property at the time the alleged nuisance is first put into operation, that damages are measured solely by depreciation in the market value of the property injured, and that there may be no recovery for annoyance, inconvenience, sickness, or personal discomfort. Although each of the plaintiffs individually sued for $3,500 for personal injuries and each family group for $750 for injury to property, the court concluded that since the amount sought to be recovered by each group of plaintiffs for damages to real property was less than $3,000 it lacked jurisdiction over the controversies and dismissed the actions upon a pre-trial hearing.

The causes are here upon a consolidated appeal from the judgments of dismissal, and the controversy as it has been developed in brief and argument revolves about Kentucky law in respect to whether recovery may be had for personal injuries as distinguished from injuries to real property. The jurisdictional issue being perceived, it must first be disposed of, since it is elementary that a court has no power to decide the merits of a controversy over which it has no jurisdiction, except insofar as it may be imperative to determine facts upon which the issue of jurisdiction itself depends.

Jurisdiction was invoked on the ground of diversity of citizenship. The general rule in such cases is that the jurisdiction of the Federal Court has to be determined by the allegations of the bill and not upon the facts as they may turn out, or by a decision on the merits. Mosher v. Phœnix, 287 U.S. 29, 53 S.Ct. 67, 77 L.Ed. 148; Levering & Garrigues Co. v. Morrin, 289 U.S. 103, 53 S.Ct. 549, 77 L.Ed. 1062. If the bill of complaint sets forth a substantial claim, a case is presented within the federal jurisdiction, however, the court upon consideration may decide as to the legal sufficiency of the facts alleged to support the claim. Jurisdiction as distinguished from merits is wanting where the claim set forth in the pleading is plainly unsubstantial, either because obviously without merit or because its unsoundness results so clearly from court decisions as to leave no room for the inference that the questions sought to be raised can be the subject of controversy. Levering & Garrigues Co. v. Morrin, supra.

In St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 288, 58 S.Ct. 586, 590, 82 L.Ed. 845, the rule governing dismissal for want of jurisdiction is said to be that the sum claimed by the plaintiff controls if the claim is apparently made in good faith. It must appear to a legal certainty that the claim is really...