Nebo Consol. Coal & Coking Co. v. Lynch

• Decision Date: 24 January 1911
• Citation: 141 Ky. 711,133 S.W. 763
• Parties: NEBO CONSOL. COAL & COKING CO. v. LYNCH.
• Court: Kentucky Court of Appeals

133 S.W. 763

141 Ky. 711

NEBO CONSOL. COAL & COKING CO. v. LYNCH.

Court of Appeals of Kentucky.

January 24, 1911

Appeal from Circuit Court, Hopkins County.

Action by John D. Lynch against the Nebo Consolidated Coal & Coking Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Jonson & Jennings, for appellant.

Gibson & Kincheloe, for appellee.

CARROLL J.

In this action by the appellee, Lynch, against the appellant company to recover damages for injuries done to his land, the petition averred that the appellee was the owner of a tract of land adjoining the land owned by the appellant company, on which it had its buildings and mining machinery, and that "in operating its coal mine it has continuously, since the year 1906, unlawfully, negligently, and carelessly thrown from its said mine slack, copperas, and other deleterious substances into a branch, with a deep and well-defined channel, that runs through the lands of the company as well as his lands; *** and has continually, since the year 1906 unlawfully and negligently placed a large quantity of slack copperas, and other deleterious substances in and near said water course, and said copperas and other deleterious substances so placed have been continually since the year 1906 by ordinary rains washed into said water course and down same on plaintiff's land, and said water course, where it passes through his land, is now and has been for more than one year filled up with slack, copperas, and other deleterious substances, *** and has unlawfully and carelessly pumped from its coal mine copperas water, and thrown same where it would naturally run in said water course, and through and over his land. He says that as a direct and proximate result of these negligent acts 25 acres of his land lying on said water course has been covered by slack copperas, copperas water, and other deleterious substances which injured the fertility of the land and permanently destroyed the market value thereof."

In the first paragraph of its answer, the appellant traversed the averments of the petition. In the second paragraph it set out in substance that in 1904 it purchased a large body of land and the mineral and mining rights in adjoining lands, including the land of appellee, and at a large expense erected its machinery, buildings, and other appliances for mining and taking out coal which it had purchased, and began the mining and shipping of coal from its mine; that the right to mine and remove the coal constitutes the only value to it of said land and other rights purchased by it; and that its buildings, machinery, and equipment are situated on land that lies above the drainage level of appellee's land, so that the water falling or originating thereon naturally flows over the land of appellee, and into the water course described in the petition. It further set out that it had at all times employed unusual care to avoid doing any injury to the lands of appellee, but that, in the exercise of ordinary care and in the usual and customary method of operating its mine, it is necessary that it should pump on its land water from its mine, and throw on its land refuse from the mine, and that to deprive it of this privilege will work great and irreparable injury to it. It further set up that appellee knew that it was expending large sums of money in establishing its plant, and that it was necessary that it should operate it in the usual and customary manner, and that it was induced by his acts to believe that he would make no objection to or claim any damages for any injury done to his land by it in the usual and customary method of mining. It...