Island Creek Coal Co. v. Rodgers
| Decision Date | 01 October 1982 |
| Citation | 644 S.W.2d 339 |
| Parties | ISLAND CREEK COAL COMPANY, Appellant, v. Jewell RODGERS and Elsie Rodgers, Appellees. CIMARRON COAL CORPORATION, Appellant, v. Jewell RODGERS and Elsie Rodgers, Appellees. |
| Court | Kentucky Court of Appeals |
C. Alex Rose, Louisville, William A. Logan, Richard L. Frymire, Joe A. Evans III, Michael D. Hallyburton, Madisonville, for appellants.
Terry Noffsinger, Evansville, Richard E. Hibbs, Madisonville, for appellees.
Before GANT, McDONALD and VANCE, JJ.
This is an appeal of a blasting case. It was tried as a lead case, and many others remain to be tried. The appellants, Island Creek Coal Company and Cimarron Coal Corporation, received adverse judgments against them in the circuit court. They prosecute their appeals separately.
The jury awarded the Rodgerses $50,000 in damages for injury to their home. Fifty percent of the award was assessed against Island Creek and 50 percent against Cimarron. In addition, Cimarron Coal Corporation was assessed $45,000 in punitive damages.
The appellees, Jewell and Elsie Rodgers, sued to recover damages to their home located in Sharp Subdivision, just east of Madisonville in Hopkins County. The subdivision is located above Island Creek's East Diamond Mine which is composed of 5,000 acres of underground mines, containing seams of coal 90 feet and 250 feet below the surface. The mining operations under Sharp Subdivision were begun in 1905 by the West Kentucky Coal Company, Island Creek's predecessor in title. The operations have been abandoned since 1971.
Mr. Jewell Rodgers has been employed by Bearing Service Company for over 30 years. His employment is related to the mining industry, and he personally makes business calls on mine operations. In 1966 the appellees built their home, knowing that the house was situated over underground mines and that other subdivisions in the area built over mines had trouble with subsidence. Subsidence is defined as,
[A]ny movement of the soil from its natural position. This movement may be in any direction. It may be of surface or subsurface soil. A shifting, falling, slipping, seeping or oozing of the soil is a subsidence within the meaning of the term as used in this Chapter.
Restatement (Second) of Torts § 817, comment h at 68 (1977).
Cimarron Coal Corporation engaged in strip mining in various areas sought and east of Sharp Subdivision, within 5,600 to 23,000 feet of the subdivision. The property Cimarron was mining had been acquired from Island Creek in 1967. Cimarron used strip mining methods with explosives in order to fragmentize the rock and soil so the coal would be exposed.
On April 29, 1977, the appellees experienced an earthquake-like blast which they claim caused the damage to their home.
The Evidence As It Related To Island Creek.
The Rodgerses and Cimarron offered proof through expert testimony that the abandoned mines were left with insufficient pillar support.
According to Island Creek, uncontradicted evidence showed that in 1905, when the mineral fee severance occurred, modern-day land development and subdivisions were not only unheard of but unthought of. Island Creek did not begin mining by the underground method until 1948, and they continued until 1963.
An expert for Island Creek testified as follows:
[Island Creek had] done an excellent job of designing and mining both the Number 11 and Number 9 coal seams and had left more than adequate coal to support the surface in its natural state for an indefinite time (100 years or more) and that the only known conditions which could have produced subsidence in the Sharps area were the discharge of sewage into the old mines, or blasting operations of Cimarron, or a combination of the two.
He further explained that the sewage discharge would result in a softening of the fire clay which in turn would permit the remaining pillars to "punch" down through the fire clay, increasing the load and strain upon the large sandstone layers which support the surface. He explained that the repeated blasting from Cimarron resulted in the failure or fracture of the support members which caused a subsidence.
The Rodgerses testified that on April 29, 1977, at 11:40 p.m., there was a shaking and jolting of their home followed by a terrific blast. The next morning they discovered their damage.
Cimarron's blasting records established that the blast shot consisted of 16 drill holes 32 feet deep, each containing 275 pounds of anfo, a mixture of ammonium nitrate and fuel oil. The holes were shot 25 milliseconds apart. The blast site was located about 13,200 feet from the nearest part of Sharp subdivision.
Cimarron's expert testified that the blast, if more than 5,600 feet from the house, would be too remote to cause direct damage as the Rodgerses complain. Cimarron's experts concluded that the blasting did not contribute to or accelerate the subsidence. The subsidence, they felt, was caused by Island Creek's extracting coal from the seams under the subdivision; by the seams' having inadequate support in the mines; and by the use of an unacceptable mining practice of not lining up the panels or passageways of Nos. 9 and 11 seams. They theorized that when Island Creek abandoned or closed the mine and terminated its pumping operations, water accumulated in the mine and the fire clay softened, causing the support pillars to sink. Lastly, Cimarron's experts stated that Island Creek failed to leave a barrier pillar for support immediately under the Sharp subdivision.
The trial, expertly handled by the trial court, spanned 20 days and included an exhaustive list of witnesses. A review of the record shows that the array of expert testimony corroborates and then, on the other hand, contradicts each and every claim and defense made by the parties. We will discuss the asserted errors in the order they were argued and briefed.
CONTEMPLATED, AT THE TIME OF THE MINERAL SEVERANCE.
Island Creek proved that the severance of the coal from the fee occurred in 1905. It argues that the uncontradicted evidence established that when the severance occurred, the subdivision in which the Rodgerses' property was located was a remote woodland and it was not possible for a modern-day subdivision to have been developed upon the property. It is argued further that in 1905 bare subsistence required at least 50 acres, and a one-half ( 1/2) acre subdivision lot certainly would not have been adequate for that purpose. Beyond that, running water, electricity, indoor plumbing and gas service, which are indispensable to the development and use of modern day subdivisions, were not available in rural Kentucky. Island Creek vigorously contends that there was no obligation, legal or otherwise, to support the surface in contemplation of development of a modern subdivision.
The unquestioned law of Kentucky is that an underground mine operator is obligated to support the surface and leave it in its "natural state." West Kentucky Coal Company v. Dilback, 219 Ky. 783, 294 S.W. 478 (1927), states at page 479:
As we have said, the right to mine is subservient to the right of the surface owners to have the surface maintained in its natural state free from subsidence or partings of the soil, and this right of support is absolute and not dependent upon any questions of negligence. [Emphasis ours.]
The question of liability of an underground mine operator for damages to structures on the surface which were built after the underground operations had been abandoned is a matter of first impression in Kentucky. What constitutes "natural state"? Island Creek advances the argument that the definition of "natural state" is the surface as it was when the coal rights were severed (in this case, 1905). The Rodgerses argue to the contrary. They claim it makes no difference when the coal rights were severed because strict or absolute liability on the underground mine operator for any damage to the surface is applicable, the only exception being that if subsequent structures are put on the surface, the underground operator would not be liable for any damage attributable to the structures themselves causing or contributing to the subsidence. The Rodgerses remind us that the weight of the house had nothing to do with the cause of the subsidence, as their uncontradicted expert testimony verified.
It is easy to follow Island Creek's argument to the contrary, and it's a good one. If Island Creek's responsibility is fixed at the year 1905, the year of the fee severance, then it would be responsible for only remote and rural farmland; certainly no liability would exist for damage to a modern house in a subdivision 72 years later. Island Creek is armed with authority from foreign jurisdictions to support this position, namely, Marvin v. Brewster Iron Mining Co., 55 N.Y. 538 (1874); Collins v. Gleason Coal Co., 140 Iowa 114, 115 N.W. 497 (1908); Paull v. Island Coal Co., 44 Ind.App. 218, 88 N.E. 959 (1909); Drummond v. White Oak Fuel Co., 104 W.Va. 368, 140 S.E. 57 (1927); and Noonan v. Pardee, 200 Pa. 474, 50 Atl.Rep. 255 (1901). To the contrary, we define "natural state" as the condition of the surface, including reasonable and forseeable improvements thereon, at the time the coal is severed, not from the fee, but from the earth.
Also, our review of Kentucky law convinces us that strict liability is applicable. In West Kentucky Coal Co. v. Dilback, supra, the court dealt with damage to a well. There the coal company was operating an underground mine not a far distance from the house of the appellee. The...
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