Green v. Asher Coal Min. Co.

Decision Date20 March 1964
Citation377 S.W.2d 68
CourtSupreme Court of Kentucky
PartiesGeorge G. GREEN et al., Appellants, v. ASHER COAL MINING COMPANY, Appellee.

William A. Watson, Middlesboro, for appellants.

E. B. Wilson, Pineville, for appellee.

CLAY, Commissioner.

This controversy involves the liability of the owner of land leased for strip maining purposes to a lower riparian owner allegedly damaged by debris produced in the strip mining operation. The trial court dismissed appellant plaintiffs' complaint on the ground it failed to state a claim.

The complaint alleges in substance the following facts. Appellee defendant is engaged in the business of purchasing, leasing and developing lands for the purpose of carrying on mining operations. It leased some of its land to be mined for coal and the lessee adopted the method of strip mining. Defendant 'was fully cognizant and aware of the nature of the mining operation thus to be conducted'. The mining operation resulted in the displacement of top soil, rock, shale and other types of strata. After the cessation of the strip mining operation the defendant did not restore the land to prevent soil erosion or excessive drainage along natural water courses. As a result of the condition created, following a heavy rainfall vast quantities of loose rock, dirt and coal were washed down the mountainside, obstructing natural water courses, causing the flooding of plaintiffs' premises, and depositing debris thereon, thereby injuring plaintiffs' land.

It is alleged defendant failed to exercise ordinary care in the use of its property and was guilty of wanton, reckless and wilful conduct. Punitive as well as compensatory damages were demanded.

The complaint (which we commend as a model pleading) very thoroughly states a basic cause of action. The important, difficult and narrow question is whether it states a claim against the defendant landowner. It is the position of the defendant that the wrongful acts complained of were committed by its lessee and it is not liable therefor. It cannot be disputed that as a general rule the landlord is not liable for the negligent acts of his tenant. 32 Am.Jur., Landlord and Tenant, sections 161, 817; Farmer v. Modern Motors Co., 235 Ky. 483, 31 S.W.2d 716; Pinnell v. Woods, 275 Ky. 290, 121 S.W.2d 679; Cole v. Back, 305 Ky. 668, 205 S.W.2d 303.

As with all general rules there are exceptions. They stem from other general rules. Every owner must use his own property with due regard to the rights of other owners. Crabtree Coal Min. Co. v. Hamby's Adm'r, 28 Ky.Law Rep. 687, 90 S.W. 226. If a landowner uses his property in a negligent or unskillful manner or creates conditions thereon which are unusual, unreasonable or unnatural, thereby causing damage to adjoining landowners, he may be held liable. Chesapeake & O. R. Co. v. Weddington, 231 Ky. 745, 22 S.W.2d 131. The landowner may be liable for acts which cause flooding of his neighbor's land. Chesapeake & O. R. Co. v. Saulsberry, 262 Ky. 31, 88 S.W.2d 949. The landowner may be liable to lower riparian owners if he places deleterious substances on his land which ordinarily would carry to other lands. Nebo Consol. Coal & Coking Co. v. Lynch, 141 Ky. 711, 133 S.W. 763.

The exceptions to the rule of immunity arise in those cases where the condition or use of the premises is so potentially harmful that the courts will not permit the owner to hide behind a lease. For example, we have the 'sidewalk' cases. In Mitchell's Adm'r v. Brady, 124 Ky. 411, 99 S.W. 266, 13 L.R.A.,N.S., 751, a pipe attached to a rented building fell upon a pedestrian. Even though the lessee was obligated under the lease to keep the building in repair and not to permit it to become unsafe, this Court held the lessor liable and stated (page 267 of 99 S.W.):

'The owner of a building erected over the sidewalk is not absolved from liability to a person injured by the fall of a part of the building on the sidewalk, by reason of the fact that he has leased the property to another and the tenant has obligated himself to keep the property in repair. Both the tenant and the owner in such a state of case are responsible. It is encumbent upon the owner to keep his premises safe, and he cannot relieve himself of this liability by contract with his tenant.'

To the same effect was Goldberg v. Wunderlich, 248 Ky. 798, 59 S.W.2d 1018 (involving a defect in a cellar door which developed after the tenancy began). These cases disclose a policy followed under certain circumstances when the nature of the injury is such as to be directly traceable to a potentially dangerous condition which the lessor should anticipate and guard against, even though he does not have actual control of the premises.

Another exception has been recognized where land is leased for a purpose involving the admission of the general public. Examples are amusement parks, theatres, beaches, motels and baseball grandstands. See Prosser on Torts, 2d Ed., section 80 (page 469). Prosser comments that this rule is an arbitrary one simply recognizing a greater responsibility of the lessor when the use involves a danger to the public. As before suggested, the matter is one of policy in the light of unusual conditions.

Another exception is where the lessee creates and maintains a nuisance on the premises. As said in Harper and James, The Law of Torts, Vol. 2, section 27.20 (page 1527):

'Liability of the landlord for the activities of the tenant may however be based on an express authorization of the very conduct or condition that is the source of injury, or on the unreasonably great likelihood, at the time of the letting, that the tenant will create such a nuisance. Such a likelihood will be found where injury results from the normal, expectable use by the tenant of the leased premises and appliances in the condition they were in at the time of the letting.'

The use of the word 'nuisance' in this connection is simply a convenient method of describing a condition which causes injury to another. See definition of 'nuisance' in Words and Phrases, Permanent Edition, Vol. 28A. In many cases we have examined, the imposition of liability upon the lessor rests upon the peculiar nature of the condition. If potential harm is sufficiently substantial and predictable, it is the duty of the lessor to abate the nuisance created by his lessee. See Swift & Co. v. Peoples Coal & Oil Co., 121 Conn. 579, 186 A. 629.

Blasting cases furnish another example. In Board of Chosen Freeholders of Hudson County v. Woodcliffe Land Imp. Co., 74 N.J.L. 355, 65 A. 844, the defendant had leased his land for the purpose of removing earth and rock and by reason of excavation and blasting the adjoining property owner was injured. The court said (page 846 of 65 A.):

'We can see no distinction in principle between the liability of the lessor who demises premises with an already existing nuisance, and the liability of a lessor who demises premises for a purpose the necessary result of which is a nuisance, and the case is much stronger against a lessor who demises premises for the very purpose of creating a nuisance either by authorizing it or by making the act of the tenant his own. It would be manifestly wrong to allow the lessor to escape liability merely by demising the premises in order that the nuisance might be the original act of the lessee only.'

Similar decisions were reached in Benton v. Kernan, 127 N.J.Eq. 434, 13 A.2d 825, and Fagan v. Silver, 57 Mont. 427, 188 P. 900. Apparently to the contrary is Tennessee Coal Iron & R. Co. v. Hartline, 244 Ala. 116, 11 So.2d 833.

The theory that the lessor is liable when his property is leased for a use which involves the...

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13 cases
  • State of Cal. By and Through Brown v. Watt
    • United States
    • U.S. District Court — Central District of California
    • August 18, 1981
    ...the lessee where land was leased for the purpose of carrying on the very activity which caused the harm. See, e. g., Green v. Asher Coal Mining Co., 377 S.W.2d 68 (Ky.1964); United States v. Morrell, 331 F.2d 498 (10th Cir. 1964); Daigle v. Continental Oil Co., 277 F.Supp. 875 (W.D. La.1967......
  • King v. Modern Music Co.
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma
    • April 3, 2001
    ...who authorizes or permits act by tenant which landlord should prohibit, and a third party is injured thereby, and, Green v. Asher Coal Min. Co., 377 S.W.2d 68 (Ky.1964), ruling that a landlord would be responsible if tenant operations conducted under the lease result in injury that may be r......
  • Totten v. Parker
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    ...668, 205 S.W.2d 303. Under the circumstances here, Gulf was not liable under any of the exceptions to the rule. Cf. Green v. Asher Coal Mining Company, Ky., 377 S.W.2d 68. Although appellants argue that Gulf should be held liable because the boys were employed in violation of KRS 339.230 an......
  • United States v. Morrell, 7419-7421.
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • April 28, 1964
    ...use permits do not pay a fee. 43 C.F.R. § 161.6(c). 17 Brownlee v. Landers, Tex.Civ.App., 166 S.W.2d 734, 737. 18 Green v. Asher Coal Mining Co., Ky.Ct. App., 377 S.W.2d 68. See also 53 A.L.R. 19 Judge Christensen said, 208 F.Supp. 85: "Accordingly, it is concluded that the agents of the go......
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