Norton Coal Mining Co. v. Wilkey

• Decision Date: 24 January 1930
• Citation: 23 S.W.2d 942,232 Ky. 539
• Parties: NORTON COAL MIN. CO. v. WILKEY et al.
• Court: Kentucky Court of Appeals

23 S.W.2d 942

232 Ky. 539

NORTON COAL MIN. CO. v. WILKEY et al.

Court of Appeals of Kentucky

January 24, 1930

Appeal from Circuit Court, Hopkins County.

Action by L. P. Wilkey and another against the Norton Coal Mining Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

C. J Waddill, of Madisonville, and John T. Edmunds, of Hopkinsville, for appellant.

J. A Jonson and Chas. G. Franklin, both of Madisonville, for appellees.

REES J.

Appellees L. P. Wilkey and W. M. Wilkey, who were the plaintiffs below own 231 acres of land near Nortonville in Hopkins county. Pleasant Run creek flows through the farm. All of the land is lowland subject to overflow. The Norton Coal Mining Company operates a coal mine and washery in the watershed of Pleasant Run creek, and plaintiffs brought this action to recover damages to their farm and growing crops alleged to have been caused by the pollution of the waters in Pleasant Run creek resulting from the operation of appellant's coal washery.

This is the second appeal of this case. The opinion on the former appeal (Norton Coal Mining Co. v. Wilkie) is reported in 224 Ky. 192, 5 S.W.2d 1058, where a statement of the facts will be found. On the first trial plaintiffs recovered a judgment for $2,000 which was reversed on the ground that the evidence as to the extent of the damage was vague and intangible and furnished no standard whereby the jury could intelligently measure the diminution of the rental value of the farm during the years sued for. On the return of the case to the lower court, the plaintiffs filed an amended petition in which they sought additional damages in the sum of $1,200 for the years 1927 and 1928, but in the prayer of the amended petition they asked for total damages in the sum of $3,000, the amount prayed for in the petition. On the second trial the jury returned a verdict in favor of plaintiffs for $1,750.

A reversal is sought on the following grounds: (1) The evidence was not sufficient to form a basis for any fair estimate of damages; (2) the verdict is flagrantly against the weight of the evidence; (3) the verdict is excessive; and (4) the instruction on the measure of damages is erroneous.

On the first trial plaintiffs proved that the rental value of the land had been reduced one-half, but they failed to show the number of acres cultivated each year, the kind and character of crops raised, or the market value thereof, and it was held that the evidence was insufficient to enable the jury to measure the damages. On the second trial evidence was introduced which showed the number of acres cultivated each year, the kind of crop raised, and the amount of each crop produced and the amount which would have been produced without the operation of the washery. The market price of the various crops for each year was also proved. A number of witnesses testified that the reasonable rental value of the land without the operation of the washery was from $5 to $8 an acre for the land cultivated, and $1 to $2 an acre with the...