Crabtree Coal Min. Co. v. Hamby's Adm'r

• Decision Date: 09 January 1906
• Citation: 90 S.W. 226
• Parties: CRABTREE COAL MIN. CO. v. HAMBY'S ADM'R.
• Court: Kentucky Court of Appeals

90 S.W. 226

CRABTREE COAL MIN. CO. v. HAMBY'S ADM'R.

Court of Appeals of Kentucky.

January 9, 1906

Appeal from Circuit Court, Hopkins County.

"Not to be officially reported."

Action by J. H. Hamby's administrator against the Crabtree Coal Mining Company. Judgment for plaintiff. Defendant appeals. Affirmed.

C. J Waddill, for appellant.

Ruby Laffoon and Lee Gibson, for appellee.

HOBSON C.J.

J. H Hamby owned a tract of land in Hopkins county, on Sugar creek, 50 or 60 acres of which was bottom land along the creek. The Crabtree Coal Mining Company owns a coal mine on Sugar creek above the Hamby land. It also owns a railroad switch running from its mine through Hamby's land to the Illinois Central Railroad. Hamby sold it the right of way for the railroad switch in the year 1878, the right of way being 50 feet wide. The tipple of the coal company is near Sugar creek and its slack pile, which covers one or two acres, is just on the creek and not far above Hamby's land. Hamby died in March, 1902. After his death these two actions were brought against the coal company, one by his personal representative and the other by his widow and children. It is in substance alleged in the petitions that the defendant negligently constructed and maintained its railroad switch or roadbed, diverting the water passing off the surface of the land and carrying it in an unnatural course over Hamby's land, washing dirt brush, logs, and slack into the bed of Sugar creek and upon Hamby's land, filling up the creek, making dams in it, and diverting the water from the channel, and causing piles of débris to accumulate on Hamby's land and an unnatural quantity of water to run over it; that the defendant dug out of its mine large quantities of coal, slack, copperas, and other poisonous substances, and negligently deposited same on banks of Sugar creek, negligently so placing it as to be carried by the surface water and the water which naturally flows from the creek over the Hamby land; that it pumped from its mine large quantities of poisonous water, which it threw into the creek, thereby causing it to flow over the Hamby land and poison it and destroy its fertility. Damages were sued for by the administrator up to Hamby's death, and by the widow and children after his death. The defendant answered. The two suits were heard together. The jury found in favor of the administrator for $500, and in favor of the widow and children for $250. The coal company appeals.

A great many grounds are relied upon for a reversal of the judgment, which will be considered as fully as may be done without unduly lengthening the opinion. When Hamby conveyed to the coal company the right of way for a valuable consideration, $500, the grantee had the right to use the right of way for the purposes specified in the deed; that is, for a railway from its mine to the railroad track. But in using its right of way it was required to conform to the rule that one must always use his own property with due regard to the rights of others. The coal company had no right under its grant to maintain its track in a way that would be injurious to Hamby in diverting the surface water from its natural flow or obstructing the channel of the creek; nor did it have the right to place upon its right of way, where the water would take it over Hamby's land, anything that would injure Hamby, where a person of ordinary care would know that the water would take it upon Hamby, and that it would be destructive to his property. While a coal company may properly use slack where it will not injure others, it has no right to place it upon the land of another, and it is equally to be blamed if it places it where it is evident nature will take it over the land of another.

The five-year statute of limitations has no application to the action. The sum of the case is that the coal company deposited a large pile of slack on the bank of Sugar creek above Hamby's land, where it would naturally wash into the creek, and deposited a large quantity of slack along its right of way where it would naturally wash over Hamby's land; that it pumped out of its mine poisonous waters, which it threw into the creek, and that the creek was further poisoned from the drainage from its slack pile on the bank of the creek; that in this way the creek has become stopped up and the water is diverted from its...