Severt v. Beckley Coals, Inc., 12771

• Decision Date: 02 December 1969
• Docket Number: No. 12771,12771
• Citation: 153 W.Va. 600,170 S.E.2d 577
• Court: West Virginia Supreme Court
• Parties: Wiley SEVERT et al. v. BECKLEY COALS, INC.

Page 577

170 S.E.2d 577

153 W.Va. 600

Wiley SEVERT et al. v. BECKLEY COALS, INC.

No. 12771.

Supreme Court of Appeals of West Virginia.

Submitted May 13, 1969.

Decided July 15, 1969.

Rehearing Denied Dec. 2, 1969.

Syllabus by the Court

1. In the absence of a statute providing an absolute right to injunctive relief, such relief is not a matter of right but its grant or refusal usually rests in the sound discretion of the court to be exercised in harmony with well established equitable principles.

2. 'The granting or refusal of an injunction, whether mandatory or preventive, calls for the exercise of sound judicial discretion in view of all the circumstances of the particular case; regard being had to the nature of the controversy, the object for which the injunction is being sought, and the comparative hardship or convenience to the respective parties involved in the award or denial of the writ.' Point 4, syllabus, State ex rel. Donley v. Baker, 112 W.Va. 263 (164 S.E. 154).

3. Equity does not have jurisdiction of a case in which the plaintiff has a full, complete and adequate remedy at law, unless some peculiar feature of the case comes within the province of a court of equity.

4. The nature of damages to real estate, whether temporary or permanent, is determined by the character of the nuisance to which the land is subjected and not by the quantity of the resultant damages.

5. 'If a private nuisance is of such character that its continuance is necessarily an injury, and is of a permanent character, that will continue without change from any cause without human labor, and dependent for change on no contingency of which the law can take notice, then the damage is original and permanent, and the right of action at once exists for recovery of entire damages, past and future; and one recovery is a grant or license to continue the nuisance, and there can be no second recovery for its continuance. It is otherwise where the damage is not continuous, but intermittent, occasional, or recurrent from time to time.' Point 2, syllabus, Guinn v. Ohio River Railroad Company, 46 W.Va. 151 (33 S.E. 87).

6. Where the injury to real estate is such as to affect its value permanently, permanent damages can be recovered for that injury; or, if the character of the agency, from the operation of which the injury arises, is such that it can reasonably be expected to continue for an indefinite time, and its operation in the ordinary and proper way produces the injury complained of, the plaintiff not only can, but he must, if he would recover damages at all, sue and recover permanent damages.

7. The proper measure of damages for injury of a permanent nature to real estate is the difference between its market value immediately before the injury and its market value immediately after the injury.

Bailey, Worrell, Camper & Viers, Harry G. Camper, Jr., Welch, Leo Bridi, Beckley, for appellant.

D. Grove Moler, Mullens, Kwass, Stone & Blue, Fred O. Blue, Bluefield, for appellees.

HAYMOND, President:

On this appeal the defendant, Beckley Coals, Inc., a corporation, presently the sole defendant, the other original defendant Mary Ann Coals, Inc., having been dismissed from this action, seeks reversal of a joint judgment in favor of the plaintiffs Wiley Severt and Edna Severt, husband and wife, for $7,000.00 for damages to real estate owned by them, and separate judgments in favor of the plaintiff Wiley Severt for $2,000.00 for personal injury, of the plaintiff Edna Severt for $2,000.00 for personal injury, and of the plaintiff Suzanne Severt, formerly an infant but now an adult, for $1,000.00 for personal injury, in a civil action in the Circuit Court of Wyoming County, West Virginia; and the plaintiffs cross-assign as error the refusal of the circuit court to grant them injunctive relief to prevent the defendant from operating its coal mining facility near the residence of the plaintiffs Wiley Severt and Edna Severt, in the rural community of Pierpoint, in Wyoming County, West Virginia, and to award temporary damages to those plaintiffs. By order entered September 27, 1967, the circuit court rendered the foregoing judgments upon the verdicts of the jury and by its final judgment rendered January 15, 1968, the circuit court overruled the motions of the defendant to set aside the foregoing judgments and to grant the defendant a new trial and also overruled the motion of the plaintiffs for injunctive relief.

This appeal and supersedeas was granted October 14, 1968, upon the application of the defendant.

In their complaint the plaintiffs seek recovery of damages for injury to real estate and personal injuries caused by the negligence of the defendant and by a nuisance maintained by it or, in the alternative, for injunctive relief to enjoin the operation of the coal mining facility of the defendant and an award of temporary damages resulting from such operation.

There is little if any dispute in the material facts and the questions presented for decision are questions of law.

The defendant assigns numerous errors which, as summarized, are (1) the refusal of the circuit court to set aside the verdicts and the judgments upon them because they are contrary to the law and the evidence and without evidence to support them and the refusal to grant a new trial or to enter judgment in favor of the defendant; (2) the admission of certain incompetent evidence offered by the plaintiffs; (3) the giving of Instruction No. 2, offered by the plaintiffs; and (4) the refusal to give certain instructions offered by the defendant.

The plaintiffs Wiley Severt and Edna Severt own jointly Lots 67, 68 and 69 in the small community of Pierpoint, in Slab Pork District, Wyoming County, West Virginia. They acquired Lots 67 and 68 in 1948 and improved them with a six-room dwelling house which they have occupied as a residence. Sometime later they purchased Lot 69. When they constructed their home, and until 1965, according to their testimony and the testimony of numerous other witnesses produced in their behalf, there were no coal, rail or other industrial operations within a quarter of a mile of the Pierpoint community. Prior to 1965, when the defendant began its mining operation there had been a small mine within 150 to 200 feet from the property now owned by the plaintiffs but that operation was discontinued prior to 1948. There were also several small and two large mining operations within a range of a quarter of a mile and two miles from the home of the plaintiffs. The plaintiffs and several witnesses in their behalf testified that none of those operations produced or cast or deposited dust upon their property or other property in the Pierpoint community, although several witnesses in behalf of the defendant testified that these operations caused the presence of some, though less, dust than that produced by the mining operation of the defendant.

According to the testimony of the plaintiffs and numerous witnesses, the defendant in 1965 began the operation of its mine at at distance of approximately 60 feet from the property line of the plaintiffs and within 120 feet of their home, and installed an exhaust fan, a crusher and belt carrier, and trucks to transport coal, all of which are in constant operation from approximately 6:00 o'clock in the morning until 2:00 o'clock in the morning of the following day and that such operation continues for six days during each week; that these facilities cast and deposit large quantities of black coal dust in and upon the yard and porch, the exterior walls and roof and all parts of the interior of their home, which covers the furniture, clothing, linens, food and other contents of the home, and upon the person of the plaintiffs, which cause them to clean the property and their person oftener than usual and almost continually and produce constant loud and disturbing noise, which disrupts the rest and sleep and disturbs the peace and comfort of the plaintiffs; that the dust has destroyed the paint on the exterior of the dwelling, covers the porch and the yard, destroys vegetation, and prevents the usual and ordinary use of the yard and the porch of the home. The evidence that the mining operation of the defendant produces, casts and deposits large quantities of dust in and upon the property of the plaintiffs and upon their person and causes continuous loud noise which disturbs the peace and comfort of the plaintiffs and disrupts their sleep and rest, is not controverted, and the only evidence in behalf of the defendants on that point relates to the amount or the quantity of the dust and such evidence was that the amount or the quantity of such dust was less than that testified to by the plaintiffs and the witnesses in their behalf.

On the question of the alleged negligence of the defendant in the location and operation of its mining facility, there is evidence in behalf of the plaintiffs that the fan could have been otherwise located and placed at a greater distance from the property of the plaintiffs, but there is also evidence in behalf of the defendant that the fan was placed at the only available location for installation and effective use in connection with its operation. There is also evidence that the defendant operates its mining facility according to approved and generally acceptable mining standards and that it is not negligent in the operation of its facility.

The plaintiff Wiley Severt testified that the operation of the mining facility by the defendant depreciated the value of his residence from approximately $15,000.00 before to less than $5,000.00 after the defendant began its operation, and he testified that he could not give away his property after the defendant started to operate its mining facility. A real estate appraiser, a witness in behalf of the plaintiffs, testified that the market value of the property before the operation of the facility was $13,400.00 and afterwards was $6400.00....