Strough v. Ideal Supplies Co.

• Citation: 187 S.W.2d 839,300 Ky. 34
• Parties: STROUGH et al. v. IDEAL SUPPLIES CO.
• Decision Date: 18 May 1945
• Court: Court of Appeals of Kentucky

187 S.W.2d 839

300 Ky. 34

STROUGH et al. v. IDEAL SUPPLIES CO.

Court of Appeals of Kentucky

May 18, 1945

Appeal from Circuit Court, Kenton County; Joseph P. Goodenough Judge.

Action by Frank G. Strough and others against Ideal Supplies Company to enjoin a nuisance arising from the operation by defendant of a coal yard in the City of Ludlow. From judgment awarding insufficient relief, the plaintiffs appeal, and the defendant cross-appeals.

Affirmed.

Francis J. Hanlon, of Covington, for appellants.

U. J Howard, Alex Howard, and Howard & Howard, all of Covington for appellee.

TILFORD Chief Justice.

Appellants sued to enjoin a nuisance arising from the operation by appellee of a coal yard in the City of Ludlow, and being dissatisfied with the relief awarded, they have appealed.

The facts disclosed by the pleadings and proof are succinctly stated in the Chancellor's opinion, from which we quote the following excerpts:

'For more than thirty years defendant has owned the entire tract of land involved in this litigation where it has operated and maintained a sand and gravel pit.

'The history of this territory is that the entire tract of land was a hill or mound which defendant cut away and then built and maintained its sand and gravel pit, and developed that part of the area now occupied by these plaintiffs and their neighbors as a subdivision.

'The defendant developed the subdivision and sold lots to plaintiffs and their neighbors. These plaintiffs have lived there for a period ranging from about six to fourteen years.

'In the Winter of 1942 defendant company began operating a coal business. There are and have been three bins on defendant's premises, one of which is used for sand, another for gravel, and the third for coal.

'The Southern Railroad Company hauls the coal in flat bottom gondola cars to the premises of the defendant. The railroad switch or track is sloped and run over the bins or hoppers. The coal car is stopped over the coal bin or tipple. The gates on the bottom of the car are opened and the coal is dropped into the coal bin. From the coal bin the coal is dumped into wagons by means of a chute and delivered to defendant's customers; that coal which is not required for immediate delivery is stacked in a coal pile on defendant's premises.

'Plaintiffs in their petition allege that defendant conducts its coal business in such a manner that it causes 'large quantities of dirty coal dust to be thrown out and to permeate the atmosphere and causes loud noises to be made, to such an extent as to deprive the plaintiffs and each of them of the right to enjoy the comforts of human existence in their respective homes.'

'The prayer of the petition is:

"Wherefore plaintiffs pray that the defendant be enjoined from so using, maintaining and operating on its said premises said coal hopper and trucks thereon in such manner as to produce said coal dust and noise, annoyance, and injuries to plaintiffs and others similarly affected. That plaintiffs be permitted to sue on behalf of themselves and other similarly affected by said nuisance. They pray for their costs herein and for all just, proper and equitable relief to them belonging.'

'Defendant filed its answer which consisted of a general denial; then filed an amended answer which specifically denied the allegations of the petition, and by way of affirmative pleading stated that it owned and operated the property involved in this litigation many years before plaintiffs and their neighbors built their homes. That the ground on which the homes were built was originally a sand and gravel pit owned and operated by the defendant, and that after this sand and gravel pit was reduced to the level of the street, defendant subdivided this property and sold these lots to plaintiffs and their neighbors for the purpose of building homes thereon; that the coal hopper of which the plaintiffs now complain has been in its present place of operation for more than twenty-five years.

'Defendant pleads further that before coal is dumped into this hopper it is watered, and before the coal is moved from the bin to the wagons it is again watered.

'It is defendant's further defence that plaintiffs and their neighbors live in the vicinity of the C. N. O. & T. P. Railway Company which maintain and for many years has maintained a coal yard, tipple and scrap pile, and noises made by the defendant in its business is negligible compared to the noises made by the Railroad Company.

'Defendant alleges it has invested in its property and business some $60,000.00. * * *

'Plaintiff by amended petition alleged and so proved that after the unloading of the coal from the railroad cars into the hopper and trucks, the defendant by its agents and employees then conveyed said coal in trucks from said hopper to its yards some four hundred feet away from the hopper where the coal is again unloaded and piled up in said yard.

'Plaintiffs pleaded and proved that the defendant company, through its agents and servants, hammered on the side of these coal cars or gondolas in order to release the coal in these cars to the disturbance of these plaintiffs and their neighbors.

'One particular part of the testimony introduced by the defendant is to the effect that beginning shortly after the institution of this action, defendant before unloading said cars of coal which were brought to its hopper on the railroad switch, the coal was sprinkled and wetted down in an effort to prevent any dust or dirt from same from flying away from the coal bin and onto to defendants premises and going into the atmosphere and being conveyed by same to the places of residence of the plaintiffs. Notwithstanding plaintiffs' claim that regardless of the sprinkling and wetting down of the coal, the dust continues to fly into

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