Hancock v. Terry Elkhorn Mining Co., Inc.

• Decision Date: 28 September 1973
• Citation: 503 S.W.2d 710
• Parties: Ed W. HANCOCK, Attorney General, et al., Appellants, v. TERRY ELKHORN MINING COMPANY, INC., et al., Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 710

503 S.W.2d 710

Ed W. HANCOCK, Attorney General, et al., Appellants, v. TERRY ELKHORN MINING COMPANY, INC., et al., Appellees.

Court of Appeals of Kentucky.

Sept. 28, 1973.

Rehearing Denied Feb. 8, 1974.

Ed W. Hancock, Atty. Gen., David Murrell, Laura Murrell, David C. Short, David D. Beals, Asst. Attys. Gen., Frankfort, Phillip M. Walther, Columbus, Ohio, Jack Lewis, Paintsville, for appellants.

Henry D. Stratton, Stratton & Johnson, Pikeville, J. K. Wells, Wells & Wells, Paintsville, Jerry Grigsby, Department of Highways, Pikeville, for appellees.

CATINNA, Commissioner.

This is an appeal from an order and judgment of the Johnson Circuit Court upholding the validity of special overweight truck permits issued pursuant to KRS 189.270, denying the right of the Attorney General to intervene in the pending action, and refusing to enjoin violations of load-limit laws and regulations; and a cross-appeal from so much of the judgment as mandatorily enjoined Terry Elkhorn Mining Company, Inc., to maintain certain highways.

A number of citizens and residents of Johnson County, Kentucky, who lived on and near Kentucky Highways 302 and 1107, filed this class action seeking to enjoin Terry Elkhorn and certain named individuals from hauling coal in trucks on these roads whose weight violated the load limits placed on them by the Highway Department.

The complaint in Count 1 sought a recovery of money damages; however, this count was subsequently dismissed. Count 2 sought to enjoin temporarily and permanently the use of the roads by coal trucks whose gross weight, including load, exceeded 30,000 pounds, the maximum weight for a Class B highway as set by the commissioner of the Department of Highways.

Count 3 sought to enjoin the operation of overloaded trucks on the roads in that such operation constituted a public nuisance, with the homes and residences along the roads being damaged by the vibration caused by the trucks, together with the dust and grime created thereby. It was stated that such illegal use of the roads was a disruption of the peaceful and lawful utilization of the property belonging to the residents.

Counsel from the Attorney General's office was present at all hearings held on the claims seeking injunctive relief. However, he did not attempt to intervene until much later when a motion was filed asking that he be permitted to intervene, along with which motion there was tendered a separate complaint on behalf of the Attorney General as an official of the Commonwealth.

The record in this proceeding almost defies comprehension. Counsel for the Attorney General aptly stated: 'Procedurally this is a confused case,' characterizing the handling of the case as being 'informal' or 'casual.' An effort was made to implead the Department of Highways. The order and judgment of the court denied the Attorney General the right to intervene but did make the Department of Highways a party to the action.

Every step of the proceeding was objected to by counsel for Terry Elkhorn. Although counsel could not find time to introduce evidence when the hearings were held, he did find time to file a motion to intervene on behalf of 380 people, which motion of some 92 pages consisted of 258 separate paragraphs. Upon the granting of leave to intervene, an answer and counterclaim 353 pages long was filed by the intervenors, who consisted of all the employees of Terry Elkhorn, the trucking companies, the truck owners and truck drivers, the owner and operator of the tipples, and their respective spouses and children.

Although numerous points are cited as grounds for reversing or affirming the judgment, we are of the opinion that answers to four questions are dispositive of the issues in this litigation: (1) Did the Attorney General have the right to intervene? (2) Were the overweight permits issued by the Highway Department, pursuant to KRS 189.270 and its Regulation HIWA-TC-P1, valid? (3) Should the court have enjoined the continued violation of the load-limit laws of the Commonwealth? (4) Did the trial court have the authority or jurisdiction to mandatorily enjoin Terry Elkhorn to maintain portions of Highways 302 and 1107?

Subsequent to the filing of this action, the court assigned it for a hearing upon the issue of injunctive relief. Hearings were held on September 8, 1970, September 14, 1970, September 24, 1970, and November 6, 1970. Counsel for Terry Elkhorn was present and participated in all hearings. Terry Elkhorn now claims that the court deprived it the right to introduce evidence and thereby denied it its constitutional right to due process of law. We do not find that Terry Elkhorn or the other defendants were denied the right to introduce evidence at any of the hearings. On September 8, 1970, appellants introduced a number of witnesses on the question of whether the coal trucks being operated on 302 and 1107 exceeded the statutory load limits and whether their operation constituted a public nuisance. At the conclusion of appellants' evidence, counsel stated to the court that he was of the opinion that the evidence as introduced was sufficient to allow the court to grant the injunctive relief requested. Terry Elkhorn did not offer any evidence, counsel stating at that time that they had nothing further to offer. However, counsel for Terry Elkhorn prevailed upon the court to continue the hearing so that he might look into the law on the right of the parties no maintain a class action. The hearing was continued until September 14, 1970, at which time counsel for Terry Elkhorn filed a rather lengthy transcript of a hearing conducted by the Highway Department on overweight trucks and filed its first overweight permit issued by the Highway Department under KRS 189.270 .

The record shows that prior to this time Terry Elkhorn did not have a permit. Counsel for Terry Elkhorn insisted that he wanted to put on proof in regard to the question of a temporary injunction, and it was agreed by counsel at that time that he would take or have proof ready for taking within ten days from that date which would have been September 24, 1970. As the permit issued under KRS 189.270 was for a period of ten days, expiring on September 24, the court continued the hearing until that date.

On September 24, there was a prolonged argument about the validity of permits under KRS 189.270, in the course of which counsel for Terry Elkhorn informed the court that the Highway Department was, at the expense of Terry Elkhorn, repaving parts of Highways 1107 and 302 and that the work would be completed within ten days. The overweight permit also had been renewed. The court indicated that the hearing would be set over until such time as the repaving of the highways was completed. Thereupon Terry Elkhorn refused to put on any evidence, but rather asked that the taking of the evidence be passed to the hearing date, October 2, 1970, which the court announced would be the final hearing, and all parties were instructed to have ready for submission any and all matters they wanted the court to consider.

The hearing on October 2, 1970, apparently was continued, although there is nothing in the record to show what happened. Another hearing was held on November 6, 1970. This hearing consisted of extensive arguments on the right of the Attorney General to intervene. The appellants put on additional evidence to show that the new road was being damaged by the heavy trucks. Counsel for Terry by horn objected rather strenuously and said that he was not prepared for an evidentiary hearing as he had no idea one has intended. This court notes, however, that at the two previous hearings Terry Elkhorn had unequivocally promised to produce its evidence at the 'next' hearing.

This has been a rather long recitation of what this court considers a corollary factual matter, but it definitely establishes in the opinion of the court the fact that Terry Elkhorn was not deprived its right to introduce evidence, but rather that counsel refused to introduce evidence on its behalf. By way of a postscript we might add that Terry Elkhorn's brief sets out what evidence would have been introduced if it had not been deprived of that right. We note that every item of evidence mentioned in the brief is in this record by the rather lengthy and repetitious statements of counsel, and the court is not unaware of the evidence upon which Terry Elkhorn intended to rely.

It is not denied that the trucks hauling Terry Elkhorn's coal on Kentucky Highways 302 and 1107 all exceeded the 'posted' load limit of 24,000 pounds. Terry Elkhorn admitted that the trucks were overweight denying, however, that they exceeded the 73,280 pounds designated by the special permits. Employees of the Department of Motor Transportation testified that they had never weighed a truck on either of said highways which was not overweight.

None of the affending drivers or truck owners was ever convicted of operating in excess of the legal load limit. Counsel for Terry Elkhorn, in stating the case to the court, said: 'Many of the defendants have been previously indicted for operating overweight trucks, but of the many warrants and indictments which reached trial, not one has resulted in a conviction and the majority of such trials resulted in acquittal of the defendant.' Counsel had already admitted that all of the trucks exceeded the legal load limit, while denying that the load limit of the special permits was violated. Counsel for Terry Elkhorn further argued in the brief that he would have been able to introduce evidence to show that all warrants and citations against the appellees for violating weight-limit statutes brought to trial before a Johnson County jury resulted in acquittals . An employee of the Department of Motor Transportation testified that some of the trucks he had weighed exceeded the posted load limit of 24,000 pounds by as much as 49,000 pounds and that the trucks were so heavily loaded...