North East Coal Co. v. Pickelsimer

• Decision Date: 20 February 1934
• Citation: 253 Ky. 11,68 S.W.2d 760
• Parties: NORTH EAST COAL CO. v. PICKELSIMER et al. SAME v. WELLS.
• Court: Kentucky Court of Appeals

68 S.W.2d 760

253 Ky. 11

NORTH EAST COAL CO. v. PICKELSIMER et al.

SAME v. WELLS.

Court of Appeals of Kentucky

February 20, 1934

Appeal from Circuit Court, Johnson County.

Separate suits by Laura Pickelsimer and another and by Noah Wells against the North East Coal Company. From judgments for plaintiffs, defendant appeals.

Reversed with directions.

E. C O'Rear, of Frankfort, and Fred Howes and Kirk & Wells all of Paintsville, for appellants.

W. J. Ward, of Paintsville, for appellee Noah Wells.

J. L. Harrington, of Paintsville, and J. B. Clark, of Inez, for appellees Laura Pickelsimer and another.

RICHARDSON Justice.

These appeals involve the same questions of law and substantially the same facts.

About the year 1892, Nerva Crider and Nettie Crider, the mother and sister of Laura Pickelsimer and Emma Mutts, died, and were buried on John's creek, or Hyden's branch, Johnson county, Ky. at a place used as a graveyard for people residing in this immediate vicinity, including the family and friends of William Hyden, who, at that time, owned the farm on which it was located. The farm is now owned by Lewis Butcher.

About 24 years ago George Wells, a son of Noah Wells, was also buried in this graveyard.

About the year 1900, William Hyden, the owner of the fee in the farm on which the graveyard was located, conveyed the coal and other minerals thereunder to John C. C. Mayo, and by mesne conveyances the title was acquired by the North East Coal Company. It opened mines thereon in 1916. The coal was mined on what is commonly known as the "re-treat plan;" i. e., the entries were first driven to the farthest extent of the mineral boundary; rooms and pillars were mined on the return toward the mouth. Before the North East Coal Company acquired title to the lease, an entry and an air course were driven under one corner of the graveyard. At the time of the happening of the occurrences herein involved, the graveyard contained about 75 graves, only about one-half dozen of them were marked, or could be located by "markers." Only about a dozen were so cared for as to indicate their existence. The lease under which the North East Coal Company held title, and mined coal thereunder, contained no reservation of the graveyard or notice of its existence. However, in mining coal under it, it left intact 75 per cent. of the area of coal thereunder, which still remains unmined. The graveyard is located on the crest of a hill near a creek. The coal was mined around the 75 per cent. which was left immediately under the graveyard. On the completion of the mining operation, the mouth of the mine was closed, and some time thereafter a "hill seam," or a natural crevice in the stratum or a natural separation of the stone formation overlying the territory mined, which was 150 feet below the surface, appeared, producing on the surface different openings, which extended at some points from the top of the soil to the bottom of the opening of the sandstone stratum. The bottom of the "hill seam," or natural cleavage of the sandstone stratum, was observable at different points in the graveyard. Without particularizing the locations of the openings or cracks of the surface of the graveyard or their dimensions, we shall consider them as they relate only to the graves of Nerva or Nettie Crider and George Wells. The evidence as to the "hill seams" or cracks, as they concern other graves, is not only immaterial, but not admissible in the actions of Laura Pickelsimer and Emma Mutts and Noah Wells; the only issue in their respective cases was the nature and extent of the seams or cracks as they affect the graves of Nerva Crider and Nettie Crider and George Wells. Cincinnati, N. O. & T. P. R. Co. v. Perkins, 204 Ky. 334, 264 S.W. 758. The evidence of the injury to the graves of others or of Nerva Crider and Nettie Crider was inadmissible for, or in favor of, Noah Wells and vice versa.

At the date of the deaths of Nerva Crider and Nettie Crider, Laura Pickelsimer was six months old. Their graves had been pointed out to her. She was permitted to say their graves were "just a hole in the ground now." "There is a crack in the graveyard, it is no shape for anyone to be buried there now;" and she could not now be buried there because of the "condition of the burial ground." No monument, tombstone, or other marker was at the grave of either the mother or sister. She claims their graves, where they had been pointed out to her, were "down in that crack," and that "she would not want to be buried there." For the last 20 years she had seldom visited the graves of her mother and sister, and had not visited them for the past 3 years, for the reason she "had a bad show to get there," though she only resided 7 miles from the burial ground. The sister, who joined her in her action, lived in California, and had only been in Kentucky twice in 23 years; the last visit being 7 years ago when she visited her mother's grave. The sister is 3 years older than Mrs. Pickelsimer. They were the only living children of their mother, and their father was dead. Lewis Butcher testified he was present when Nerva Crider was buried, and helped bury her. He knew where her grave was located, and remembered Nettie Crider as a child. He further testified the grave of Nerva Crider "had gone down," "sunk down," "broken up," and there is a place he could not see the bottom. He had seen other people "put long poles down in there;" and "they said they could not touch the bottom." This witness was permitted to describe the cracks in the surface throughout the graveyard, which, in some places, had filled up. He stated a coffin could be seen at one time, but the crack in the earth exposing it had filled up. He did not identify or undertake to say it was the coffin in which either Nerva or Nettie Crider was buried.

Noah Wells was permitted to describe the cracks in the surface, as they appeared at different points and places in the graveyard. When asked to describe them, as they concerned the grave of his child, his answer was, "There is a crack there at the head of the grave and another one there is 18 inches of the foot of the grave and then the grave is sunk down." There was no marker or monument to his child's grave. It was 10 days old at its death, and no care or attention had been given to its grave since its burial. He had not filled it up since the child was buried.

The graveyard is ragged, uncared for, unkept, and no attention has been given it or the graves therein by the relatives of those who were buried in it.

Wells does not claim, nor state, that any crack in the surface appeared in the grave of his child, or near it, except at the edge and the end, and neither the appearance nor the dimension of which is given by the witnesses. Noah Wells, Laura Pickelsimer, and Emma Mutts were not parties to the lease under which the North East Coal Company mined the coal in the vicinity of the graveyard. There were no consensual relations between them and the North East Coal Company; therefore the principles stated in Griffin v. Fairmount Coal Co., 59 W.Va. 480, 53 S.E. 24, 2 L. R. A. (N. S.) 1115; Kuhn v. Fairmount Coal Co. (C. C. A.) 179 F. 191, are not applicable and controlling. Noah Wells, as the father of George Wells, and Laura Pickelsimer and Emma Mutts, as the only surviving daughters of Nerva Crider, and the only heirs at law of Nettie Crider, their parents being dead, while they were not the owners of the fee or of any interest in the soil where their deceased relatives were buried, were in that character of possession of the soil where their relatives were buried as entitled them to prosecute their respective actions for the interruption or desecration of the graves of their relatives or the interference with their dead bodies. Hook v. Joyce, 94 Ky. 450, 22 S.W. 651, 15 Ky. Law Rep. 337, 21 L. R. A. 96; Hertle v. Riddell, 127 Ky. 623, 106 S.W. 282, 32 Ky. Law Rep. 477, 15 L. R. A. (N. S.) 796, 128 Am. St. Rep. 364.

In Louisville Cemetery Ass'n v. Downs, 241 Ky. 773, 45 S.W.2d 5, 6, it was written: "A recovery may be had by the next of kin or the surviving spouse for an unwarranted interference with the grave of a deceased, or for the infliction of an injury to a corpse, if either be done (a) maliciously, (b) or by gross negligence, (c) or wantonly, i. e., with a reckless disregard of the rights of another ( Louisville & N. R. R. Co. v. Hull, 113 Ky. 561, 68 S.W. 433, 24 Ky. Law Rep. 375, 57 L. R. A. 771), (d) or for an unlawful or secret disinterment or displacement thereof (Ky. St. §§ 466, 1335), or (e) an action of trespass quare clausum fregit may be maintained by the holder of the title, or the person in possession, of the lot on which a grave is located (Cooley on Torts, 239, 240; 1st Blackstone's Commentaries, 429; Hook v. Joyce, 94 Ky. 450, 22 S.W. 651, 15 Ky. Law Rep. 337, 21 L. R. A. 96), or (f) for the removal of a body from one grave to another by those in authority and control of the cemetery or burial ground, without notice, or an opportunity, to him who in law is entitled to be present, if he desires, before its removal. 1st Washburn on Real Estate, § 33; Kincaid's Appeal, 66 Pa. 411, 5 Am. Rep. 377; Partridge v. First Ind. Church, 39 Md. 637; Bessemer Land & Improvement Co. v. Jenkins, 111 Ala. 135, 18 So. 565, 56 Am. St. Rep. 26." Streipe v. Liberty Mutual Life Ins. Co. et al., 243 Ky. 15, 47 S.W.2d 1004.

The term "next of kin," in this character of case means those who inherit from the deceased, the fee, interest, or easement in the soil containing the dead body, under the statute of descent. Thompson on Negligence, vol. 7, § 748, page 891; Mount v. Tremont Lbr. Co., 121 La. 64, 46 So. 103, 16 L. R. A. (N. S.) 199, 126 Am. St. Rep. 312, 15 Ann. Cas. 148. I...