Koch v. Eastern Gas and Fuel Associates

• Decision Date: 22 December 1956
• Docket Number: No. CC833,CC833
• Citation: 142 W.Va. 386,95 S.E.2d 822
• Parties: John KOCH et al. v. EASTERN GAS AND FUEL ASSOCIATES et al.
• Court: West Virginia Supreme Court

Page 822

95 S.E.2d 822

142 W.Va. 386

John KOCH et al. v. EASTERN GAS AND FUEL ASSOCIATES et al.

No. CC833.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 6, 1956.

Decided Dec. 22, 1956.

Syllabus by the Court

1. 'By virtue of statute [Code, 56-4-39] in this state a defendant can plead several matters of defense, whether of law or fact, in the same plea. The common law objection for duplicity is thereby abolished.' Hunt v. Di Bacco, Pt. 4 Syl., 69 W.Va. 449 .

2. 'Pleadings are not vitiated by surplusage.' Pt. 2 Syl., Horchler v. Van Zandt, 120 W.Va. 452 .

3. 'A person in possession of land is required so to use it as not to injure the property of another person.' Pt. 1 Syl., Oresta v. Romano Bros., 137 W.Va. 633 .

4. Where in an action of trespass on the case to recover damages for continuing trespasses on plaintiffs' real estate, allegedly caused by the negligence of defendants in permitting gases and other deleterious and chemical matter to be blown by currents of wind upon the plaintiffs' adjacent lands from a gob pile or piles, operated by the defendants, in which the plaintiffs, as appears from the allegations of the declaration, seek to recover damages of a temporary nature, as distinguished from permanent damages, a special plea to the declaration, setting forth that the plaintiffs moved into their property in the vicinity of the then established and maintained gob pile, and asserting the plaintiffs' assumption of risk, such plea was properly interposed to the declaration; but, where the allegations of the declaration are to the effect that the alleged wrongdoings on the part of the defendants are progressive and continuing, the plea of assumption of risk cannot be employed to bar damages to the plaintiffs, which have occurred since the plaintiffs moved into and upon their property, and after defendants have been notified, or by the exercise of reasonable care should have known, of the injurious effect of its gob pile or piles.

5. Where in an action of trespass on the case to recover damages for continuing trespasses to plaintiffs' real estate, allegedly caused by the defendants in permitting noxious gases and other deleterious and chemical matter, alleged to have been blown by wind currents upon plaintiffs' adjacent lands from a gob pile or piles, allegedly negligently operated by the defendants, in which the plaintiffs, as appears from the allegations of the declaration, seek to recover damages of a temporary nature, as distinguished from permanent damages, a special plea to the declaration setting forth a prescriptive right so to operate such gob pile or piles, does not set forth a defense to the action, and on certification to this Court of the trial court's ruling in sustaining a demurrer to such plea, such ruling will be sustained.

Alfred R. Rutnam, John L. McIntire, Tusca Morris, Robert M. Amos, A. Blake Billingslea, Fairmont, for plaintiffs.

James M. Guiher, Steptoe & Johnson, Clarksburg, John D. Amos, Fairmont, Arthur A. Waltenbaugh, Pittsburgh, Pa., for defendants.

Jackson, Kelly, Holt & O'Farrell, Charleston, amicus curiae for the West Virginia Coal Assn.

RILEY, Judge.

The plaintiffs, John Koch and Olga Koch, instituted in the Circuit Court of Marion County their action of trespass on the case against Eastern Gas and Fuel Associates, a voluntary trust association, commonly known as a Massachusetts trust association, and validated in this jurisdiction by Chapter 47, Code, 1931, as last amended, by adding thereto a new article designated Article 9a, Sections 1 to 6, inclusive, Chapter 163, Acts of the Legislature, Regular Session, 1947, and Edward Shaw, superintendent of the coal mine and mining plant of the defendant trust association, to recover one hundred thousand dollars for damage to the premises of the plaintiffs, statute at or near 'gob dumps' or 'gob piles' on the premises of the defendant trust association, allegedly negligently operated by the defendants. The rulings of the court in sustaining plaintiffs' demurrer to defendants' special plea No. 2, which alleged that defendants acquired rights by prescription, and defendants' special plea No. 3, which asserts that plaintiffs assumed the risk, were certified by the trial court to this Court. Specifically the certified questions are:

'(1) Were the defendants relieved of liability for the alleged wrongs set forth in the plaintiffs' declaration herein by reason of assumption of risk of such wrongs by the plaintiffs as alleged under the provisions of defendants' Special Plea No. 3?

'(2) Were the defendants relieved of liability for the alleged wrongs set forth in plaintiffs' declaration herein by reason of their acquisition and possession of a prescriptive right against plaintiffs and their lands as alleged in the provisions of defendants' Special Plea No. 2?'

In this Court counsel for both the plaintiffs and the defendants filed briefs and argued the case orally; and the West Virginia Coal Association, with prior leave of this Court, filed a brief as amicus curiae in support of the brief and position of Eastern Gas and Fuel Associates.

Plaintiffs' declaration in the first count thereof alleges that this case is based primarily upon actionable negligence in that the defendants, Eastern Gas and Fuel Associates and Edward Shaw, the trust association's superintendent, for many years prior to the institution of the action were the operators of a large coal mine and mining plant in connection therewith, located in and about Grant Town, Paw Paw District, Marion County, about one-half mile in a northwesterly direction from property, consisting of two parcels of land, conveyed to the plaintiffs by Frank W. Witt and wife, on May 19, 1943, and of record in the office of the Clerk of the County Court of Marion County, which is now owned and occupied by the plaintiffs. More specifically it is alleged in verbatim that: '* * * the defendants carelessly, negligently, willfully, wantonly and unlawfully piled, placed, threw and dumped, and caused permitted and suffered carelessly, negligently, willfully, wantonly and unlawfully to be pilled, placed, thrown, and dumped before and at the time of the committing of the wrongs, grievances and injuries herein complained of, and still carelessly, negligently, willfully, wantonly and unlawfully continue to pile, place, throw, dump and operate and caused, permitted and suffered to be piled, placed, thrown, dumped and operated on said surface lands of the defendant trust adjacent to and near to said tracts of land of the plaintiffs, large quantities dumps and piles of refuse materials from said coal mine and mining plant therewith of said defendant trust, consisting of gob, bug dust, coal dust, slack coal, slag, slate, sulphur balls and other deleterious and chemical matters, which were and are highly combustible, and when they are ignited or allowed to burn, produce and emit gases, fumes, dust, smoke, acid, gases, chemicals and precipitates, which were and are injurious to and destructive of animal and vegetable life; and the defendants, at the time aforesaid and within five years from the bringing of this suit * * * negligently used and operated said 'gob dumps' or 'gob piles' located on said land to the defendant trust thereby producing and emitting therefrom dangerous gases, acid gases, toxic gases, including sulphur dioxide gases detrimental to the public health and likewise to the health of the plaintiffs and tenants and other persons residing and living on said land of the plaintiffs.'

In the second of the declaration, in reference to the negligent operation of the gob piles, and the piling of refuse thereon, which bear pertinently on the question whether the instant action is properly an action of trespass on the case to recover temporary damages for continuing trespasses, it is alleged:

'The plaintiffs further aver that the defendants, many years prior to the institution of this action, when the plaintiffs were the owners of said land and the buildings, structures and improvements thereon, as aforesaid, were the operators of said large coal mine and the mining plant therewith, located on Big Paw Paw Creek, in and about Grant Town, in the District, County and State as aforesaid averred, and that said coal mine and the mining plant therewith were situated about one mile in a southwesterly direction from said land of the plaintiffs; that in the operation of said coal mine and the mining plant therewith by the defendants, while the plaintiffs were the owners and occupiers of said land * * * and were the owners and occupiers of the buildings and other structures thereon, the defendants hauled, by means of trolley and large buckets or containers thereon, from said coal mine and mining plant therewith mine refuse materials, of slate, rock, shale, coal dust and slag and other articles of refuse, a part of which was and is highly combustible; that said refuse and materials after being extracted and hauled from said mine and mining plant therewith were and have been thence hitherto dumped and piled from day to day and night to night, and from time to time, in and on two large dumps or piles, commonly known as 'gob dumps' or 'gob piles', on the surface of the lands of the defendant trust at points at or near said coal mine and mining plant therewith, within and about said town of Grant Town, * * * and within about one-half mile of the land of the plaintiffs; and the plaintiffs further aver that it then and there became and was and has been hence hitherto the duty of the defendants to use reasonable care to keep and so operate said refuse materials dumped and piled in said 'gob dumps' or 'gob piles', as aforesaid, from becoming and remaining on fire and from generating and distributing large quantities of injurious and dangerous gases, fumes, dust, smoke, acid gases, chemicals and precipitates, all of which were and are injurious and destructive to said land of the plaintiffs, the...