Kentucky West Virginia Gas Co. v. Lafferty

• Citation: 174 F.2d 848
• Decision Date: 02 May 1949
• Docket Number: No. 10806,10807.,10806
• Parties: KENTUCKY WEST VIRGINIA GAS CO. v. LAFFERTY et al. KEEN et al. v. KENTUCKY WEST VIRGINIA GAS CO.
• Court: U.S. Court of Appeals — Sixth Circuit

174 F.2d 848 (1949)

KENTUCKY WEST VIRGINIA GAS CO. v. LAFFERTY et al. KEEN et al. v. KENTUCKY WEST VIRGINIA GAS CO.

Nos. 10806, 10807.

United States Court of Appeals Sixth Circuit.

May 2, 1949.

John L. Smith, of Catlettsburg, Ky. (John L. Smith, of Catlettsburg, Ky., and Joseph D. Harkins, of Prestonburg, Ky., on the brief), for Kentucky West Virginia Gas Co.

Jean L. Auxier, and William J. Baird, both of Pikeville, Ky. (Jean L. Auxier and Wm. J. Baird, both of Pikeville, Ky., on the brief), for Lafferty, Keen, and others.

Before ALLEN, MARTIN, and McALLISTER, Circuit Judges.

McALLISTER, Circuit Judge.

These two appeals include fifteen cases which were consolidated for trial in the district court. In the cases involved in the first appeal, complainants below were awarded damages, and the Kentucky West Virginia Gas Company appeals; in the second appeal, the district court dismissed the suits of complainants, and they seek review of such determination.

In November, 1941, the Kentucky West Virginia Gas Company placed in operation a plant furnishing the motive power for a long-distance pipe line transporting natural gas and containing unusually heavy and powerful machinery. The complainants in the district court in both of the above appeals sought damages for the diminution of the value of the use and enjoyment of their residences because the machinery of the plant caused violent quaking of the earth and the shaking and trembling of the houses in which they lived.

In various cases involving damages resultant from nuisances, the courts of Kentucky, according to the proofs and issues, allow recovery for damages for (1) the depreciation of the market value of real estate; (2) for depreciation of the rental value; (3) for personal injury to the owners or occupiers of the real estate; and (4) for diminution of the value of the use and enjoyment of the property. The complainants sought damages resulting from a permanent nuisance and that is the only kind of nuisance upon which recovery is here justified. Originally, the complainants asked damages for the diminution of the value of the use of their property and for the depreciation of the market value of the real estate. At the conclusion of the proofs, they dismissed their claim "to real property damage." In a colloquy with the court, it was explained that they wished to dismiss their claim for depreciation of the value of the real estate, and to go to the jury on the question of the diminution of the value of the use of their property. The district court liberally and properly construed the pleadings and the motion of dismissal of part of the original claim, and subsequently submitted the case on the sole question of damage to the value of the use of the property.

After complainants' dismissal of their claim for damages for depreciation of the value of the real estate, there remained in the case two possible claims for damages — for personal injury from the nuisance, and for diminution of the value of the use and enjoyment of the property. Counsel for the gas company contend that both of these kinds of damage are of the same nature, that is, that they both come under the classification of personal injuries. This question becomes important because, at the conclusion of the proofs, the gas company moved for permission to file an amended answer, pleading the Kentucky one-year statute of limitations for personal injuries. KRS 413.140. Such a plea would serve as a bar to the recovery of damages for diminution of the value of the use of the property, if such damages were for personal injuries, except such damages as had accrued within the year before the filing of the suit. Kentucky Distilleries & Warehouse Co. v. Barrett, Ky., 112 S.W. 643. Although the district court refused permission to amend the plea, setting up the statute of limitations as a defense, we deem it proper to consider the case as though the plea had been timely filed and allowed by the court.

There is a substantial difference between damages for discomfort, annoyance, and the like, regarded as allowable for personal injury, and damages allowable for depreciation in the value in the use of premises. A claim of damages for diminution of the value of the use of real estate is not a claim for damages for personal injury, but for injury to the real estate, and with this conclusion, counsel for the appellant company agree. See City of Holdenville v. Kiser, 179 Okl. 216, 64 P.2d 1223. Complainants' claims for damages for diminution of value of the use of the property, being based upon a property injury, would, therefore, not be barred by the Kentucky one-year statute of limitations applicable to personal injuries.

A more difficult question is presented with respect to the question of the measure of damages in the case. It is submitted that if the nuisance is temporary, the measure of damages is the depreciation in the rental value of the property, if it be rented, or, if occupied by the owner, the diminution of the value of the use and occupation, citing Pickerill v. City of Louisville, 125 Ky. 213, 100 S.W. 873; Hutchison v. City of Maysville, 100 S.W. 331, 30 Ky.Law Rep. 1173; City of Madisonville v. Hardman, 92 S.W. 930, 29 Ky.Law Rep. 253. However, if the nuisance is permanent, it is declared that the measure of damage is the depreciation in the market value of the property, citing Kentucky-Ohio Gas Co. v. Bowling, 264 Ky. 470, 95 S.W.2d 1; Gay v. Perry, 205 Ky. 38, 265 S.W. 437; Cumberland Grocery Co. v. Baugh's Adm'r, 151 Ky. 641, 152 S.W. 565, 43 L.R.A.,N.S., 1037, Ann.Cas.1915A, 130; Louisville H. & St. L. R. Co. v. Roberts, 144 Ky. 820, 139 S.W. 1073; City of Madisonville v. Hardman, supra.

In this case, counsel for the company contend that, although the nuisance was admittedly a permanent nuisance, the trial court, instead of properly instructing the jury that the measure of damages was the difference in market value of the property, instructed that the jury should determine whether and how much the value of the use of the property had been diminished; and that the measure of damages so given was the one properly applicable to a temporary nuisance instead of a permanent one. Consideration of the claim that the trial court erred in applying to an admittedly permanent nuisance the measure of damage applicable only to a temporary nuisance requires some review of the Kentucky cases on the subject, as under the rule in Erie R. Co. v. Tompkins, 304 U. S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A. L.R. 1487, Kentucky law, as declared by the courts of that state, is here controlling.

The above cases, cited by counsel for the gas company, sustain their contention on the measure of damages allowable in cases involving temporary and permanent nuisances. However, dependent on the special circumstances involved, there has been considerable qualification of, and supplement to, the general rule so announced, in the actual decisions of other Kentucky cases. Thus, in a case involving a temporary nuisance, City of Prestonsburg v. Lafferty, 218 Ky. 652, 291 S.W. 1030, supports a rule of recovery by an occupant of real estate of damages for sickness and health as an element additional to, or separate from, damages recoverable in respect of an injury to the property or by its use. Kentucky Distilleries & Warehouse Co. v. Barrett, Ky., 112 S.W. 643, a case involving a temporary nuisance, sustained a verdict for damages for injury to health and also to real estate. In Mahan v. Doggett, 84 S. W. 525, 526, 27 Ky.Law Rep. 103, in a case involving a temporary nuisance, it was held that the plaintiff could recover for damage to his personal property, his real estate, and for the discomfort suffered by him and his family. Further, it was said that even if he had sustained no damage to his property, he would have been entitled to recover for the discomforts suffered. With respect to the damage caused by the temporary nuisance, the court said: "All the damages occasioned by it ought to have been recovered by the injured party." In City of Madisonville v. Hardman, supra 92 S.W. 931, 29 Ky.Law Rep. 253, in a case involving a permanent nuisance, it was held that "a recovery may be had where the evidence justifies it for sickness, disease, annoyance, discomfort, and injuries to property." The court fur ther observed: "In fact, every injury to person and property that the person complaining has sustained by reason of the nuisance may be recovered in one action." It is important to note that the court did not find this holding inconsistent with its statement that the Kentucky rule "is that, where the injury or nuisance complained of is permanent, the measure of damage is the depreciation in the market value of the property." In Wiedman v. Line, 13 Ky. Law Rep. 590, in a case involving a permanent nuisance, where plaintiff alleged that defendant had erected a large brewery and that the operation of its machinery had jarred her house and cracked the walls and caused smoke and nauseous vapor to be thrown into her house, and that the jarring and noises created day and night by the operation of the machinery were so great as to cause sickness to her and her family and to make her house uninhabitable, the court of appeals held that she was entitled to recover upon proof of the facts alleged and of the damage suffered.

While the Kentucky cases hold that there can be no recovery for depreciation of the market value of real estate because of a temporary nuisance, they do not forbid recovery of damages for diminution of value for the use and occupation of property because of a permanent nuisance, where such damage is the only damage suffered, or the only damage upon which recovery is sought, and plaintiff's right to all damage is comprehended and determined in one action. With regard to other elements of damages in nuisance cases, it was held in Chesapeake & O. R. Co. v. Caldwell, 213 Ky. 410, 281 S.W. 176, that such an element as...