Kycoga Land Co. v. Kentucky River Coal Corporation, 8142
| Decision Date | 03 April 1940 |
| Docket Number | No. 8142,8143.,8142 |
| Citation | 110 F.2d 894 |
| Parties | KYCOGA LAND CO., Inc., v. KENTUCKY RIVER COAL CORPORATION. KENTUCKY RIVER COAL CORPORATION v. KYCOGA LAND CO., Inc. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Buford C. Tynes, of Huntington, W. Va., and Joseph S. Graydon, of Cincinnati, Ohio (Joseph S. Graydon, Buford C. Tynes, and Ira M. Nickell, all of Ashland, Ky., and Maxwell & Ramsey, of Cincinnati, Ohio, on the brief), for Kycoga Land Co. P. T. Wheeler, of Hazard, Ky., and Simeon S. Willis, of Ashland, Ky., for Kentucky River Coal Corporation.
Before SIMONS, ALLEN, and ARANT, Circuit Judges.
The controversy culminating in these appeals was brought to the attention of the court below by the bill of the appellant to have its title quieted to the minerals lying under a tract of approximately 100 acres, in Knott County, Kentucky. The lands having been incorporated by metes and bounds description in a lease from the appellee to the Knott Coal Corporation engaged in mining coal over a large area covered by the lease, and the operations having been extended to some 7½ acres of the land claimed by the appellant, it prayed, in its bill, for an accounting in respect to coal removed, damages to the land resulting from such removal, together with statutory penalties and punitive damages recoverable under Kentucky law, for a willful or wanton trespass. The Knott Coal Corporation was originally a party defendant, but under circumstances to be disclosed, has disappeared from the case.
The original bill was filed in 1930 and the first question to reach decision was that of title. The lands involved were known as the Wm. Kelley tract, and in a painstaking and exhaustive opinion the late Judge Cochran traced its title from the original patents, gave effect to periods of adverse possession, reconciled erroneous references in the several deeds in the chain of title, carefully traced the metes and bounds descriptions therein, and arrived at the conclusion that the appellant had clear title unaffected by conveyances and circumstances through which the appellee asserted ownership to the minerals thereunder. A decree followed on August 31, 1932, quieting title in the appellant and adjudicating its right to recover whatever damages might be ascertained to have been suffered by the defendants by reason of the trespass, and referring their ascertainment to a special master directed to take evidence thereon and report his findings to the court. The decree, however, provided that the findings of the master should not be final or be given presumptive effect, and that all matters referred should be open for determination by the court as if no findings had been made.
From this decree the appellee seasonably filed a petition for appeal with the District Court, which was allowed but not then perfected. Timely orders continued the matter to April 20, 1934. No further extension of time to perfect appeal was granted prior to that date, but on May 4, 1934, a purported extension was secured to July 18, and continuances were thereafter obtained to November 28, 1936, following the entry of a second decree upon the master's report.
The master, in compliance with the order of reference, received evidence upon and considered the question of damages, reported the amount of coal removed from appellant's lands by the appellee's lessee, announced his conclusion that the trespass had been wanton and willful and that if the strict rule of damages applicable to such trespass was to be applied, the basis for assessment was the price per ton received by Knott Coal Corporation at the tipple, which, derived from evidence given by Knott of its average price, was $1.56 per ton. While the master recommended a decree upon another basis deemed by him to be equitable in view of the fact that the appellee did not itself remove the coal and that its lessee was but an innocent trespasser, both parties agree that the master's recommendation in this respect is untenable. The court did not adopt it or consider it of sufficient merit to warrant discussion.
Upon exceptions of both litigants to the master's report, the question of damages was submitted to the court in 1936. Judge Cochran having died, the record was reviewed by his successor, Judge Ford who, on August 27, announced an opinion in which he rejected the master's conclusion that the trespass was willful, found it to be inadvertent, the amount of coal removed to have been 113,680 tons, the measure of damages for removal to be the usual royalty agreed upon in leases of coal land in the locality which was 10 cents per ton. He found, in addition, that 26,473 tons of coal had been hauled from adjacent lands through the plaintiff's tract, and that the customary charge for such transportation was 2 cents per ton, and concluded that interest should be computed upon each award from the date of Judge Cochran's decree quieting title, on August 31, 1932. A final decree followed on November 18, 1936, conforming to the opinion. From it the plaintiff appeals. The earlier decree quieting title is challenged by the defendant's cross-appeal.
The first question to confront us is the timeliness of the cross-appeal. The decree of August 31, 1932, adjudicating title, was final. Effort to keep appeal therefrom alive until damages should have been determined, failed by reason of the defendant permitting its extension to April 20, 1934, to lapse without renewal during the extended period. The finality of the decree is demonstrated by the fact that it adjudged ownership in the plaintiff, with nothing further required by way of process since the appellee was not in possession at the time, nor exercising title or ownership, and its lessee had abandoned operations. Gulf Refining Co. v. United States, 269 U.S. 125, 136, 46 S.Ct. 52, 70 L.Ed. 195; Maas v. Lonstorf, 6 Cir., 166 F. 41; Gardner v. Grand Beach Co., 6 Cir., 29 F.2d 481. Our decision in Nashville Syrup Co. v. Coca Cola Co., 6 Cir., 215 F. 527, Ann.Cas.1915B, 358, does not militate against this conclusion. The appeal in that case was substantially from an earlier decree as re-entered. In the present case there is nothing in Judge Ford's decree which renews or completes adjudication of title previously made by Judge Cochran. The earlier decree was complete and required nothing from the later one to give it finality. The analogy to patent suits is not apt since appeals therein are governed by special statute. If we are wrong in this the cross-appellant still must fail since we are not persuaded of error in the conclusion so carefully reached by Judge Cochran. The cross-appeal must be dismissed.
The question finally to be determined is whether the District Court, in giving judgment to the plaintiff for the trespass upon its lands, applied the correct rule of damages under the law of Kentucky. This becomes of moment when it is considered that the decree awarded the appellant approximately $12,000, whereas, if its views are to be accepted, an award to it on the basis of market value of coal removed, together with statutory penalties, punitive damages and interest, will approximate $250,000. Carroll's Kentucky Statutes, section 1244a-1, declares it to be a misdemeanor "if any person shall wilfully or knowingly mine or remove coal from the lands or premises of another of the value of twenty dollars ($20.00) or more without color of title in himself to the coal so mined and removed," and in addition to a fine to be imposed, provides that the person guilty of such misdemeanor shall be "liable in damages to the owner, double the market value of such coal so wrongfully mined and removed," the term "person" being defined to include corporations. It is upon this statute that the plaintiff mainly relies.
It becomes necessary, therefore, to consider whether upon the whole record the trespass committed by the defendant was willful, in that it was knowingly and deliberately committed, or under circumstances that showed a wanton or reckless disregard of the...
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