North-East Coal Co. v. Hayes

• Citation: 244 Ky. 639,51 S.W.2d 960
• Parties: NORTH-EAST COAL CO. v. HAYES et al.
• Decision Date: 24 June 1932
• Court: Court of Appeals of Kentucky

51 S.W.2d 960

244 Ky. 639

NORTH-EAST COAL CO. v. HAYES et al.

Court of Appeals of Kentucky

June 24, 1932

Appeal from Circuit Court, Johnson County.

Action by Louisa Hayes and another against the North-East Coal Company. Judgment for plaintiffs and defendant appeals.

Reversed and remanded for a new trial.

Kirk &amp Wells, of Paintsville, for appellant.

A. J Kirk & Son and W. G. Wells, all of Paintsville, for appellees.

HOBSON C.

On November 1, 1902, W. W. Stafford, etc., conveyed a boundary of land they owned in Johnson county to another, under whom appellees, Arch Hayes and Louisa Hayes claim. The deed contained this clause:

"There is reserved in this deed of conveyance all the coals, mineral and mineral products, all the oils and gases, all the salt mineral and salt waters, fire and potter clay, all iron and iron ores, all the stone and such of the standing timber as may be necessary for actual mining purposes only, and the exclusive rights of way for any and all railroads and ways that may hereafter be located on said property, either by the said W. W. Stafford and Isaac Ward or their heirs, or assigns in, on or under the heretofore described tract of land, together with the right to enter upon said land and use and operate the same and the surface thereof in all and any manner that may be deemed necessary and convenient for mining, removing therefrom all the said minerals and products, and the manufacture of the same and shipping the said articles and products above named, as well as to remove the products from or out of any other land owned by the said W. W. Stafford and Isaac Ward, their heirs and assigns, or from any lands they may hereafter acquire, with the exclusive right to erect thereon, maintain and remove therefrom all such structures as may be deemed necessary or convenient by the said W. W. Stafford and Isaac Ward, their heirs and assigns, in the free and full exercise and enjoyment of the rights and privileges herein reserved.

The party of the second part is to have the right to mine and use coal for household purposes only and the right to cut and use timber for farming purposes."

The tract of land contains 61.75 acres. The mineral rights reserved in the deed are the property of the North-East Coal Company. Appellees brought this action against the coal company on January 15, 1929, alleging that the coal company had removed the coal from the land, not leaving sufficient pillars to support the roof, and by reason thereof the surface of the land had broken down, and slides had come in the surface, destroying its market value; that the defendant had negligently failed to construct adequate drainage pipes, and had changed the natural flow of the water on plaintiff's bottom lands, and had caused slips or slides to come and run out over the bottom lands, thereby destroying and rendering unfit for use the water in the plaintiff's well, by all of which the farm on which they resided had been damaged in the sum of $2,000. The allegations of the petition were denied by answer; proof was heard; and at the conclusion of the evidence the defendant moved the court to give the jury a peremptory instruction to find for it. This was refused. The defendant then moved the court to give the jury the following instruction:

"The court instructs the jury that the defendant had the right to go upon, over and under the land in question for the purpose of mining and removing all the coal therefrom and if the jury believe from the evidence that the coal which the defendant has mined and removed from under said property was done in the usual, customary and proper manner, defendant would not be liable for any resulting breaks or damages in or to the surface of said land and the jury will find for the defendant."

This instruction was refused; the court thereupon on its own motion gave the jury this instruction, to which the defendant excepted: "If the jury believes from the evidence that by reason of defendant mining and removing the coal from under the plaintiffs' surface of the land, mentioned in evidence, the surface of said land was caused to crack or break down or slides to come thereon, or that in mining said coal the defendant caused water from the mines to run into and injure plaintiff's well or run onto and injure plaintiff's land, they will find for the plaintiff. If they do not so believe and find they will find for the defendant."

The court also told the jury that, if they found for the plaintiff, and believed that the injury was permanent and could not be remedied at a reasonable expense, then the measure of damages was the diminution in the market value of the land caused by the things complained of, but, if the matters complained of were temporary, and could be remedied at a reasonable expense, then the measure of damages was the diminution in the value of the use of the property, up to the filing of the suit. The court also gave the jury this instruction: "C. The jury will say in their verdict whether the damages awarded, if any, is in whole or in part only, and what part, for permanent or temporary injury, or both."

The jury returned the following verdict: "We the jury agree and find for the plaintiff in the sum of Five Hundred ($500.00) Dollars, for damages, considered both temporary and permanent."

The court refused a new trial and entered judgment for the plaintiff for $500. The defendant appeals.

1. As to the breaks in the surface: In West Kentucky Coal Co v. Dilback, 219 Ky. 783, 294 S.W. 478, 479, the court thus stated the rule: "As we have said, the right to mine is subservient to the right of the surface owners to have the surface maintained in its natural state free from subsidence or partings of the soil, and this right of support is absolute and...