Kentucky West Virginia Gas Co. v. Matny

• Decision Date: 20 May 1955
• Parties: KENTUCKY WEST VIRGINIA GAS COMPANY, Appellant, v. Ricey MATNY, Appellee. KENTUCKY WEST VIRGINIA GAS COMPANY, Appellant, v. Vina DAVIS, Appellee. KENTUCKY WEST VIRGINIA GAS COMPANY, Appellant, v. Mary NELSON, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 805

279 S.W.2d 805

KENTUCKY WEST VIRGINIA GAS COMPANY, Appellant, v. Ricey MATNY, Appellee.

KENTUCKY WEST VIRGINIA GAS COMPANY, Appellant, v. Vina DAVIS, Appellee.

KENTUCKY WEST VIRGINIA GAS COMPANY, Appellant, v. Mary NELSON, Appellee.

Court of Appeals of Kentucky.

May 20, 1955.

C. Kilmer Combs, Prestonsburg, John L. Smith, Catlettsburg, for appellant.

Hollie Conley, A. J. May, Prestonsburg, for appellee.

CLAY, Commissioner.

This is an appeal from four $1,000 judgments against the defendant, Kentucky West Virginia Gas Company, based upon alleged discomfort and annoyance caused by a nuisance.

Defendant constructed a plant and pumping station in 1941, for the purpose of gathering gas and compressing it into transmission lines for delivery to consumers. Eight engines were installed for operation of the pumping plant, and it was alleged and proved that the pumping station produced vibrations which caused the ground to tremble and the plaintiffs' homes nearby to shake and oscillate.

The petition alleged the plant was negligently and carelessly constructed and that its operation impaired the value of the use and occupancy of each of the plaintiffs' homes. In a second paragraph it was alleged that plaintiffs suffered serious and permanent impairment of health. It was also alleged that defendant could at a reasonable expense alter its plant and operation so as to eliminate the vibrations. The principal defense was the statute of limitations.

The trial court in its instructions limited the recovery to annoyance and discomfort sustained during the 12 months prior to the filing of suit.

The proof is overwhelming that the plant was constructed in a careful and prudent manner. No witnesses were produced to show that it was constructed negligently, nor was it proven that piling support would have eliminated the vibration, unless the plant was torn down and rebuilt at another site. Mention is made in the evidence of a synchronizing machine which could conceivably minimize the vibrations, but engineers stated that all the engines would have to be working at the same time in order for the force of one engine to counteract the other, and that it would be impractical to use in view of the varying number of engines operated throughout the year. This type of synchronizing machine was not in existence when this plant was constructed in 1941.

It is plainly evident that the nuisance complained of is a permanent one. The rule is well settled in this state that where damages are caused by a permanent structure properly constructed, and not negligently operated, a recovery must be had for the permanent nuisance once and for all, and the action must be brought within five years from the date such structure was completed and its operation commenced or from the date of the first injury, or from the date it became apparent there would be injuries resulting from the structure or its...