Solar Coal Co. v. Hoskins

• Decision Date: 21 June 1927
• Citation: 295 S.W. 989,220 Ky. 693
• Parties: SOLAR COAL CO. ET AL. v. HOSKINS ET AL.
• Court: Kentucky Court of Appeals

295 S.W. 989

220 Ky. 693

SOLAR COAL CO. ET AL. v. HOSKINS ET AL.

Court of Appeals of Kentucky.

June 21, 1927

Appeal from Circuit Court, Perry County.

Actions by M. C. Hoskins and by E. M. McIntosh against the Solar Coal Company and another were heard together. Judgment for plaintiffs, and defendants appeal. Reversed and remanded.

J. W Craft, of Hazard, for appellants.

Napier & Helm, of Hazard, for appellees.

HOBSON C.

In November, 1917, M. C. Hoskins and E. M. McIntosh were each engaged in operating coal mines on Little Willard creek in Perry county, and were delivering their coal at Conda Station, on the Louisville & Nashville Railroad, by hauling it in wagons over the public highway from their mines down the creek to the station. The Solar Coal Company was engaged in opening up its property on Willard creek above the mines of Hoskins and McIntosh, and to get its coal out it constructed a spur line railroad from the station to its tipple on Willard creek. The World War was raging, and there was great demand for coal in America. The Solar Coal Company was making every endeavor to get out its coal as promptly as it could, and to this end was rushing the construction of the spur line to completion. In constructing the spur line, which ran along near the county highway, it obstructed the highway so that Hoskins and McIntosh could not haul over it. Each of them had a rate of three cars a week, and had appliances and arrangements for delivering 25 tons of coal a day. It cost them $2 a ton to get the coal to the railroad, and at the railroad they got $3 a ton for it. For a period of 16 weeks each of them was interrupted half the time, and lost the profit from getting out sixteen 40-ton cars of coal, upon which he would have made a profit of $640. In addition to this, McIntosh incurred an extra expense of 25 cents a ton on 528 tons, which he got out, amounting to $132. They each brought an action against the coal company and the corporation which constructed the railway for it. The two cases were heard together, and on final hearing they recovered judgment for the amounts indicated. The defendants appeal.

It is insisted for the appellants that the proof does not warrant a recovery, and that the jury should have been instructed peremptorily to find for the defendants. The road obstructed was a public highway which had been maintained by the county as such more than 20 years. The obstruction of the public highway was a common nuisance and, being a tort, any one sustaining a special injury thereby may recover the damages sustained by him. In such cases where a business is interrupted the profits of the business, which were lost and may be ascertained with reasonable certainty, may be recovered. In Barnes v Midland R. R. Terminal, 218 N.Y. 91, 112 N.E. 926, the defendant constructed a pier in order to provide a means of passage from the upland to the sea, and in doing this obstructed a highway along the foreshore of Staten Island; thus injuring the business of the plaintiffs, who were conducting a resort for public recreation and amusement. Holding that an award of loss of profits was proper, the court said:

"We do not doubt that loss of profits resulting from the nuisance is an element to be considered in any estimate of the damages. French v. Conn. River Lumber Co., 145 Mass. 261 ; Weinman v. De Palma, 232 U.S. 571, 575 [34 S.Ct. 370, 58 L.Ed. 733]; Bates v. Holbrook, 89 A.D. 548 ; St. John v. Mayor, etc., of N. Y., 6 Duer [13 N.Y. Super. Ct.] 315; Bagley v. Smith, 10 N.Y. 489 . The defendant has no ground for complaint, because it is impossible to measure them to a nicety."

In Bates v. Holbrook, 89 A.D. 548, 85 N.Y.S. 673, the plaintiff was occupying a building as a hotel under a lease. The defendant erected and maintained certain structures and machinery in the street in front of plaintiff's building, obstructing the use of the street by persons in reaching the hotel. It was held in an elaborate opinion, citing many authorities, that the plaintiff's loss of profits in his business might be recovered.

In French v. Conn. River Lumber Co., 145 Mass. 261, 14 N.E. 113, French owned and kept a public house which was reached from a landing on the Connecticut river. The defendant constructed a boom across the river to catch its logs, and this boom and logs destroyed plaintiff's landing, so that it could not be used. Affirming the judgment in favor of the plaintiff, the court, citing many authorities, said:

"The diminution in the plaintiff's business

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