Fairfax Inn v. Sunnyhill Mining Co.

• Decision Date: 08 June 1951
• Docket Number: Civil Action No. 203-E.
• Citation: 97 F. Supp. 991
• Court: U.S. District Court — Northern District of West Virginia
• Parties: FAIRFAX INN, Inc. v. SUNNYHILL MINING CO.

97 F. Supp. 991

FAIRFAX INN, Inc. v. SUNNYHILL MINING CO.

Civil Action No. 203-E.

United States District Court, N. D. West Virginia.

June 8, 1951.

R. Doyne Halbritter, James T. Dailey, Jr., Kingwood, W. Va., L. Baker Fowler, Elkins, W. Va., for plaintiff.

Jacob S. Hyer and Donald K. Crawford, Elkins, W. Va., for defendant.

BAKER, Chief Judge.

This action is based upon alleged damages caused to the property of the plaintiff by the defendant. It is claimed that this damage resulted when the defendant blasted with dynamite on defendant's property and the concussion therefrom injured the plaintiff's property. There is no allegation that the blasting cast any rocks or other debris upon the plaintiff's property. The complaint sets forth three causes of action; first, it alleges that the defendant was negligent in its blasting operations and so injured the plaintiff; second, it alleges that the defendant, even though not negligent, used such a dangerous instrumentality that he is liable to the plaintiff in the absence of proof of negligence; third, it alleges that the defendant's conduct constituted a nuisance.

The defendant has filed a motion to dismiss. The defendant first asserts that the complaint does not comply with the Federal Rules of Civil Procedure, 28 U.S.C.A., in that it sets forth three separate causes of action. I feel that the complaint complies with Rule 8 of the Rules of Civil Procedure in all essential respects.

Second, the defendant asserts that the cause of action at the time the suit was instituted was barred by the Statute of Limitations. This being an injury to real property, the one-year Statute of Limitations does not apply, and I hold that this action was instituted within the time permitted by West Virginia law.

The third and principal attack upon the complaint goes to the theory alleged in the second and third causes of action, that the defendant is liable even if he acted without negligence. There is a division of judicial opinion among the courts of this country on this question. Counsel for the defendant and for the plaintiff have each cited numerous cases from other states, which sustain their respective positions. However, counsel were unable to find any West Virginia case directly in point, and my own research has not disclosed such a case. Therefore, under the rule in the case of Erie Railway Company v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 118, I must arrive at a conclusion which I believe to be the law in West Virginia without the guidance of an explicit pronouncement of the Supreme Court of Appeals of this state. In two cases; namely, Weaver Mercantile Co. v. Thurmond, 68 W.Va. 530, 70 S.E. 126, 33 L.R.A., N.S., 1061, and Wigal v. City of Parkersburg, 74 W.Va. 25, 81 S.E. 554, 52 L.R.A., N.S., 465, our Supreme Court dealt with damage resulting upon adjoining property from the impounding of water on the defendant's land. In the first case, the town of Thurmond maintained a wooden tank on a hill above the plaintiff's property. The tank burst and the plaintiff's store was flooded with muddy water. The Court held the defendant liable without any proof of negligence upon its part. In its syllabus, the Court said: "A man is bound to use his premises so as not to injure his neighbor's property."

In Wigal v. City of Parkersburg, supra, an almost identical state of facts existed, although in that case a death resulted from the bursting tank, and the Court said in its syllabus: "In the absence of proof that the breaking of the tank was caused by some superior force, such as an unusual and violent disturbance of the elements or an explosion clandestinely caused, negligence will be inferred from the breaking."

The general principal of law broadly stated in those two cases; namely, that one must not use his property in such a way as to damage another, indicates that the trend in West Virginia is toward imposing liability in a case like the one at bar.

As to the rule at common law in the United States generally, the best exposition that I have found or that has been cited to me is that in the case of Exner v. Sherman Power Construction Co., 2 Cir., 54 F.2d 510, 512, 80 A.L.R. 686. The opinion in that case by Judge Augustus N. Hand, and concurred in by Circuit Judges Learned Hand and Swan, traces the developments in this law and discusses the legal question involved generally as applied in the courts of the United States. This case arose before the Supreme Court decision in Erie Railway Company v. Tompkins. The Court expressly rejected a contention that a state statute was controlling, and decided the matters presented upon the basis of the general American law. In this connection, Judge Hand said: "We may say at the outset that we have been referred to nothing...