Lynn Min. Co. v. Kelly

• Decision Date: 05 March 1965
• Citation: 394 S.W.2d 755
• Parties: LYNN MINING CO., Inc., et al., Appellants, v. Carl KELLY et al., Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 755

394 S.W.2d 755

LYNN MINING CO., Inc., et al., Appellants, v. Carl KELLY et al., Appellees.

Court of Appeals of Kentucky.

March 5, 1965.

As Modified on Rehearing Oct. 8, 1965.

Logan E. Patterson, Patterson & Berger, Pineville, Willis W. Reeves, Reeves, Barret & Cooper, Hazard, for appellants.

Alva A. Hollon, Hazard, for appellees.

CLAY, Commissioner.

Several residents of Combs, Kentucky, appellees, brought this suit against defendant appellants to recover property damages allegedly caused by the negligent operation of appellants' coal tipple. The jury awarded the aggregate sum of $13,100. On this appeal appellants contend (1) the claims were barred by the statute of limitations, and (2) there was a failure of proof on the proper measure of damages.

It is conceded appellants' operation constituted a nuisance, resulting from the expulsion of excessive amounts of coal dust in the community. The nature of this nuisance is the controlling consideration in deciding both questions raised on this appeal.

The parties assume that the five year statute, KRS 413.120, is the governing one. It would, however, bar appellees' claims only if the condition created by appellants constituted a permanent nuisance. Kentucky West Virginia Gas Company v. Matny, Ky., 279 S.W.2d 805. If the facts established a temporary nuisance, this was a continuing trespass for which damages could be recovered for each recurring injury (subject to the limitation that damages could not be recovered for so much of the injury as occurred more than five years before the commencement of the action). West Ky. Coal Company v. Rudd, Ky., 328 S.W.2d 156.

The briefs indicate some confusion exists with respect to the basic question involved. ¹ Appellants contend that since this was a permanent structure, the nuisance, if any, was a permanent one; whereas, appellees contend that this is a temporary structure because it was negligently operated. It is not the nature of the structure which is determinative of the issue but the nature of the nuisance.

It is true a temporary structure cannot be a permanent nuisance. On the other hand, a permanent structure may create a temporary nuisance. Madisonville, H. & E. R. Co. v. Graham, 147 Ky. 604, 144 S.W. 737; Curlin v. Ashby, Ky., 264 S.W.2d 671.

A permanent structure properly constructed and properly operated may constitute a nuisance. Louisville Refining Company v. Mudd, Ky., 339 S.W.2d 181. If so, it would be permanent nuisance, and 'the action must be brought within five years from the date such structure was completed and its operations 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 operation'. Kentucky & West Virginia Power Co. v. McIntosh, 278 Ky. 797, 129 S.W.2d 522; Kentucky West Virginia Gas Company v. Matny, Ky., 279 S.W.2d 805. The quoted language is somewhat ambiguous because it suggests there are optional times when a cause of action accrues. In considering the statute of limitations, it is necessary that the time when the period begins to run be fixable with certainty. Perhaps this quotation should be modified by this preface: 'Depending upon the kind and effect of the nuisance and the nature of the relief sought * * *.' In any event, the cause of action would not accrue until the complaining party had suffered an injury (and a threat of injury may fall in this category). Norfolk and W. Ry. Co. v. Little, 274 Ky. 681, 120 S.W.2d 150; Associated Contr. Stone Co. v. Pewee Val. San. & Hosp., Ky., 376 S.W.2d 316.

A permanent structure may, however, constitute or create a temporary nuisance. We have said this occurs when the structure has been negligently constructed, or negligently operated. Madisonville, H. & E. R. Co. v. Graham, 147 Ky. 604, 144 S.W. 737; Strough v. Ideal Supplies Co., 300 Ky. 34, 187 S.W.2d 839. The injection of the concept of negligence into various aspects of the law of nuisance has caused endless and unnecessary difficulties. The time has come to remove it.

To begin with, negligence is not an essential element of the plaintiff's cause of action. Defendant's liability is not based on the failure to exercise due care, but arises from the unreasonableness of the use of his property in the light of the gravity of harm to the plaintiff. Louisville Refining Company v. Mudd, Ky., 339 S.W.2d 181; Associated Contr. Stone Co. v. Pewee Val. San. & Hosp., Ky., 376 S.W.2d 316.

For reasons difficult to understand, we have held it necessary to prove negligence in blasting cases where the damage was caused by concussions or vibrations as opposed to the casting of physical objects on the plaintiff's land. See Aldridge-Poage, Inc. v. Parks, Ky., 297 S.W.2d 632; Marlowe Construction Company v. Jacobs, Ky., 302 S.W.2d 612; and cases cited therein. The soundness of this theory was questioned in both of those opinions and it was repudiated in the two cases cited in the preceding paragraph. In the latter it was recognized that an invasion of another's right to the use and enjoyment of his property constitutes a trespass and the exercise of due care is not a defense. The present Kentucky law is that a plaintiff, claiming to have been injured by the creation or maintenance of a nuisance, may be entitled to relief without allegation or proof of negligence on the part of the defendant. The Parks and Jacobs cases, just above cited, and those of similar import, are expressly overruled to the extent they adopted a contrary rule.

The immediate problem before us may likewise best be solved without resorting to the 'negligence' terminology. If a structure, even though permanent, can be changed, repaired or remedied at reasonable expense to abate the nuisance, then the condition is temporary. City of Ashland v. Kittle, Ky., 305 S.W.2d 768; Fergerson v. Utilities Elkhorn Coal Co., Ky., 313 S.W.2d 395. Whether the structure was negligently constructed is utterly irrelevant. The same may be said with respect to the method of operation of the structure. If such method can be altered at reasonable expense so as to eliminate the offending condition, it is likewise a temporary one regardless of negligence.

There is an explanation for the reference to 'negligence' in our opinions on this point. It was apparently assumed that if a nuisance was traceable to negligence in construction or operation, the condition could be corrected or eliminated at minimal or no cost at all, and therefore was temporary. Without deciding if this assumption is valid, the real issue does not involve the existence or nonexistence of negligence as such. It involves simply the reasonable remediability of the condition.

To recapitulate, in determining whether a nuisance is permanent or temporary, the question is not whether the defendant failed to exercise due care in the construction, maintenance or operation of a structure. It is whether the cause of the nuisance results from some improper...