Green v. Asher Coal Min. Co.
Decision Date | 20 March 1964 |
Citation | 377 S.W.2d 68 |
Court | Supreme Court of Kentucky |
Parties | George 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 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.):
To the same effect was Goldberg v. Wunderlich, 248 Ky. 798, 59 S.W.2d 1018 ( ). 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):
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.):
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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