Hoskins' Adm'r v. Kentucky Ridge Coal Co.

• Court: Supreme Court of Kentucky
• Writing for the Court: MILLIKEN
• Citation: Hoskins' Adm'r v. Kentucky Ridge Coal Co., 277 S.W.2d 57 (Ky. 1955)
• Decision Date: 25 March 1955
• Parties: Betty L. HOSKINS' ADMINISTRATOR (Arthur Ward), Appellant, v. KENTUCKY RIDGE COAL COMPANY et al., Appellees.

Page 57

277 S.W.2d 57

Betty L. HOSKINS' ADMINISTRATOR (Arthur Ward), Appellant, v. KENTUCKY RIDGE COAL COMPANY et al., Appellees.

Court of Appeals of Kentucky.

March 25, 1955.

Claude P. Stephens, Prestonsburg, Jesse K. Lewis, Lexington, for appellant.

Lay & Knuckles, E. B. Wilson, Pineville, for appellee.

MILLIKEN, Justice.

The main issue on this appeal is whether it was proper for the trial court to grant the appellees, defendants below, a summary judgment on the basis of the evidence introduced in support of their motion therefor. Since we have decided that the summary judgment must be set aside, we will not state the facts and collateral legal issues in detail.

The appellant, as plaintiff below, sued the appellees for $105,000 for mining coal in a disputed 10-acre tract before the death of its owner, Betty L. Hoskins, in 1939. In 1948 or 1949, the estate of Mrs. Hoskins was adjudged the owner of the tract by adverse possession by the United States District Court for the Eastern District of Kentucky. The appellees had mined the coal under the tract as an incident of their mining operations on their adjoining land on the assumption, apparently, that the 10-acre tract belonged to them. There was no surface indication that the coal was being extracted from the tract, and the issue resolves itself, for the purpose of this appeal, as to whether the appellants are charged with actual notice of the trespass by any other means.

The appellees were required by statute to file annually with the State Department of Mines an accurate map of their workings and to keep another copy of the map at their own office. The statute, KRS 352.450, declares:

'(1) The operator or superintendent of each coal mine shall annually not later than January 6, make or cause to be made an accurate map of the workings of the mine, on a scale of one hundred, two hundred, three hundred or four hundred feet to the inch, showing the area mined and the froms of the excavations up to January 1, together with the location and connection of the lines of all adjoining lands within one thousand feet of the excavations, and the name of each owner so far as known, marked on each tract. The operator or superintendent shall deposit a true copy of the map with the chief within forty-five days after January 1, and another copy of the map shall be kept at the office of the mine.'

In support of their motion for a summary judgment on the theory that the appellant had received actual notice of the underground trespass and the statute of limitations had consequently run, the appellees introduced an extract from the testimony of their engineer, A. A. Fish, in the aforementioned proceedings in...