Harvey Coal Corp. v. Smith
| Decision Date | 30 April 1954 |
| Citation | 268 S.W.2d 634 |
| Parties | HARVEY COAL CORP. v. SMITH et al. |
| Court | United States State Supreme Court — District of Kentucky |
Craft & Stanfill, Hazard, for appellant.
D. G. Boleyn, Hazard, for appellees.
In the lower court Ernest Smith in his answer and counterclaim sought to recover damages of $8235 from the Harvey Coal Corporation, for the alleged arbitrary, malicious and wanton destruction by the latter of his garden crop, a number of fruit trees in his orchard, and fencing, grass and timber on his land. Upon a transfer of the case to the ordinary docket for trial, the jury awarded Smith damages of $1470.
The corporation has moved for an appeal and urges two grounds for reversal: First, that Smith's claim is barred by the five-year statute of limitations, KRS 413.120(4), which it alleged and relied upon as a defense in its reply; and next, that under the provisions of its leases bestowing upon it the right to mine coal it was specifically absolved from all liability to Smith for the acts set forth. Since we conclude the first ground is determinative of this appeal, a consideration of the second contention is not necessary in this opinion.
The undisputed facts are that appellant prior to July 22, 1944, pursuant to various leases held by it which are not questioned as to their validity and as to the rights and powers granted thereunder, was mining coal under the tract of land owned by appellee, Smith, and, on or about that date, it became necessary in carrying on its operations to build upon a portion of the surface of appellee's land a tramroad, a trestle, certain power lines and several other structures. In clearing a right of way to construct these facilities, appellant was required to remove a small amount of appellee's fencing as well as certain of his fruit trees and in erecting some of the above installations it was necessary to use some of the timber located on appellee's land. When appellant began this work appellee and one George Smith intervened and attempted, under threats of violence, to prevent the commencement or continuance of the contemplated work. A suit was then instituted by appellant against these persons to enjoin them from hindring or interfering in any manner with the proposed construction and at a hearing upon a motion for a temporary injunction the then judge of the Perry Circuit Court on July 26, 1944, granted the injunction in conformity with the prayer. After the injunction issued appe...
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Bickett v. Countrymark Energy Res., LLC
...be time barred, as well as all other claims for the access roads which have been in place since the 1960s. See Harvey Coal Corp. v. Smith , 268 S.W.2d 634, 634–35 (Ky. 1954) (holding that the counterclaim filed by the landowner against the coal leaseholder for damages was barred by the five......
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Armstrong v. Logsdon
...at the time it was pleaded, it could not be invoked 'to affirmatively recover damages'. This ruling was followed in Harvey Coal Corp. v. Smith, Ky., 268 S.W.2d 634 (1954), which involved a counterclaim for damage to trees, crops, etc. In Hatfield v. Hatfield, Ky., 417 S.W.2d 218 (1967), whi......
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Williams v. Texas Gas Transmission, LLC, No. 2007-CA-001085-MR (Ky. App. 8/29/2008)
...is denied the right to affirmatively recover damages on account of it." Id. This reasoning was later confirmed in Harvey Coal Corporation v. Smith, 268 S.W.2d 634 (Ky. 1954), overruled on other grounds, Armstrong, 469 S.W.2d 342 (Ky. 1971). Similarly, at bar, Texas Gas is not seeking damage......
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Institutional Labor Advisors, LLC v. Allied Res., Inc.
...a counterclaim was time-barred, as it was not brought within one year after the last legal service was rendered); Harvey Coal Corp. v. Smith, 268 S.W.2d 634, 635 (Ky. 1954), over'd on other grounds, Armstrong v. Logsdon, 469 S.W.2d 342 (Ky. 1971) (noting that while "the statute of limitatio......