Kentucky & West Virginia Power Co., Inc. v. McIntosh

• Decision Date: 02 June 1939
• Citation: 129 S.W.2d 522,278 Ky. 797
• Parties: KENTUCKY & WEST VIRGINIA POWER CO., Inc., v. McINTOSH.
• Court: Kentucky Court of Appeals

129 S.W.2d 522

278 Ky. 797

KENTUCKY & WEST VIRGINIA POWER CO., Inc., v. McINTOSH.

Court of Appeals of Kentucky

June 2, 1939

Appeal from Circuit Court, Perry County; S. M. Ward, Judge.

Action by Mrs. Filmore McIntosh against the Kentucky & West Virginia Power Company, Incorporated, for damages claimed to have been caused by maintaining a nuisance by negligently operating defective spray machinery which sprayed steam and dirty water on plaintiff's house, and to abate the alleged nuisance. From a judgment of the circuit court entered on a jury's verdict for $750 in favor of plaintiff, defendant appeals and plaintiff cross-appeals.

Reversed on appeal and affirmed on cross-appeal.

Willis W. Reeves, of Hazard, W. D. McKinney, of New York City, and Martin & Smith, of Catlettsburg, for appellant.

C. A Noble and Jesse Morgan, both of Hazard, for appellee.

SIMS Commissioner.

This is an appeal from a judgment of the Perry Circuit Court entered on the jury's verdict for $750 in favor of Mrs. Filmore McIntosh, the plaintiff below, against the Kentucky & West Virginia Power Company, the defendant below.

The defendant is a public service corporation and some thirty years ago it constructed a power plant on the south bank of the North Fork of the Kentucky River, on the outskirts of Hazard, from which it sells current to its customers in the surrounding territory. The plant is a large and expensive one, representing an investment of $3,500,000, and is operated by steam turbines. Such plants use great quantities of water in hot weather in cooling the turbines, and as the river on which defendant's plant is located did not furnish sufficient water for this purpose, the defendants in 1927 built a concrete dam across the river some little distance down the stream from its plant, thereby forming a pool six to ten feet deep which is referred to in the record as a "spray pond." There are two concrete piers constructed in the spray pond which are about five feet thick at the base, six to eight feet long, and extend about twenty-eight feet above the water and are two feet thick at the top. A large pipe runs over these piers and a system of small perforated pipe is attached thereto. There are two such contrivances constructed in this spray pond at a cost of $48,000. The water is pumped from this pond at the rate of 20,000 gallons a minute, runs around the turbines and then the heated water is brought back and is sprayed into the pond to cool it. Thus the same water can be continuously pumped from the pond for cooling the turbines.

O. A Fuller, in 1927, built a house costing $4,800 in the Woodland Park addition to Hazard. This house is across the river from defendant's plant and is located 149 feet from its spray system. In February 1934, the plaintiff bought this house for $2500, and on September 1, 1936, she instituted this suit. The petition alleges defendant maintains a nuisance by negligently operating defective spray machinery, and has damaged her property in the sum of $5000 by spraying steam and dirty water on her house, causing it and the furniture therein to remain damp and to "rot, scale and collapse." Defendant's answer traversed the allegation that its machinery is defective, or is negligently operated, or that it sprays plaintiff's premises. Following the traverse, defendant pleads affirmatively it is a public service corporation and its spray system is necessary in the operation of its plant and is properly constructed; that the plaintiff was fully aware of the location and manner of operation of this spray system when she bought the property which she claims has been damaged thereby; that the plaintiff is barred by the five year statute of limitation from prosecuting this action. In an amended petition plaintiff sets out the manner in which the spray system was erected, and in effect alleges it is a permanent structure, although she avers same can be moved and the nuisance thereby abated, and she asks for such relief. The issues were completed by plaintiff replying to defendant's answer, and by defendant answering her amended petition.

Plaintiff introduced no evidence that the spray system was defectively constructed or negligently operated. But she and her witnesses testified that water and steam from the spray system damaged her house inside and out; that this spray system could be moved a short distance and the nuisance thereby abated. At the conclusion of...