Watson v. Kenlick Coal Company, Inc.

• Decision Date: 21 June 1974
• Docket Number: No. 73-2234.,73-2234.
• Citation: 498 F.2d 1183
• Parties: Mitchell WATSON et al., Plaintiffs-Appellants, v. KENLICK COAL COMPANY, INC., et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

498 F.2d 1183 (1974)

Mitchell WATSON et al., Plaintiffs-Appellants, v. KENLICK COAL COMPANY, INC., et al., Defendants-Appellees.

No. 73-2234.

United States Court of Appeals, Sixth Circuit.

Argued April 18, 1974.

Decided June 21, 1974.

William H. Allison, Jr., Louisville, Ky., for plaintiffs-appellants.

Donald Combs and William J. Baird, Pikeville, Ky., for defendants-appellees.

Before PHILLIPS, Chief Judge, and MILLER and LIVELY, Circuit Judges.

PHILLIPS, Chief Judge.

Plaintiffs-Appellants ("the Watson family" or "the Watsons") claim that the destruction of surface rights in land owned by them incident to past and prospective strip mining by the defendants-appellees is actionable under 42 U. S.C. § 1983. They sue for an injunction and damages. Specifically, the Watson family contends that appellees, who admittedly own the minerals in, on and under the Watson land, are acting under color of state law and depriving them of their property without due process and just compensation, all in violation of the Fourteenth and Fifth Amendments.

District Judge H. David Hermansdorfer, finding no state action or constitutional deprivation, dismissed the complaint for lack of subject matter jurisdiction. His decision is reported at 365 F.Supp. 456 (E.D.Ky.1973). We affirm.

The Watsons are private citizens who own the surface rights to certain land located in Magoffin County, Kentucky. Defendants-appellees, the Howards, are private citizens who own the minerals, including coal, in, on and under the land. The Howards derived their rights as remote successors in interest of a mineral severance grant or deed from the former owners-predecessors of the title to the Watsons. Defendants-appellees, the Kenlick Coal Co., Inc. and the Tip Top Coal Co., Inc., are lessees who engage in strip mining the land. Defendants-appellees, the Baileys, are officers of the coal companies.

The gravamen of the complaint is that the appellees, without the Watsons' consent, have been strip mining the land; and that these strip mining operations have resulted in the destruction of the Watsons' surface rights in the land and constitute a denial of due process and a taking of the land without just compensation. State action is premised upon the issuance of permits to strip mine by the Division of Reclamation, a division of the Kentucky Department of Environmental Protection, or, in the alternative, upon decisions of the Court of Appeals of Kentucky in unrelated cases.

A prerequisite to the vesting of federal jurisdiction for an alleged wrong under § 1983 is the deprivation of a right guaranteed by the Constitution and laws of the United States. Such deprivation must be "under color of law." There must be state action. Adickes v. S. H. Kress & Co., 398 U.S. 144, 150, 152, n. 7, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); United States v. Price, 383 U.S. 787, 794, n. 7, 86 S.Ct. 1152, 16 L. Ed.2d 267 (1966). We find neither a constitutional deprivation nor state action.

Appellees have been strip mining the Watsons' land under authority of a "broad form" deed executed in 1905. The deed, which included a waiver of damages, severed the mineral rights from the surface estate thereby creating two distinct estates in the land by conveying the rights to:

"all coal minerals and mineral substances and products; all oils and gases; all salt and salt mineral waters; all fire and potters clay; all iron and iron ores; all stone; all slate; all ores and mines; and all subterranean substances and products; and all combinations of same, or any or all of the same; situated, lying and being in, on or under the hereinafter described land, or that may hereafter be found thereon, therein or thereunder; and such of the standing timber thereupon as may, at any time of the use thereof, be, or by the party of the second part, its successors or assigns, be deemed necessary or convenient for mining purposes, or so deemed necessary or convenient for the exercise and enjoyment of any or all the property, rights and privileges herein bargained, sold, granted or conveyed, including timber necessary for dams and railroads, or branch lines thereof, as may hereafter be constructed upon the said lands; and the exclusive rights-of-way for any and all railroads, tram roads, haul roads and other ways, pipe lines, telephone and telegraph lines that may hereafter be located on said land by the parties of the first part, their heirs, representatives or assigns, or by the party of the second part, its successors or assigns, or by any person or corporation with or without the authority of either of said parties, their, or its heirs, representatives, successors or assigns; and also the right to maintain, keep in repair and operate the same and said railroads, tram roads, haul roads, ways, pipe lines, telephone and telegraph lines; and also the exclusive right to enter upon said land and drill thereupon for oil and gas, and to pump for and store the same upon said land, and remove pipe and transport the same therefrom; and to use and operate the said land and surface thereof and any and all parts thereof, including the right to use, divert, dam and pollute water courses thereon in any and every manner that may, by party to the second part, its successors or assigns, be deemed necessary or convenient for the full and free exercise and enjoyment of any and all the property, rights and privileges hereby bargained, sold, granted or conveyed, including, but not limiting to, that of drilling, mining, pumping and therefrom removing or otherwise utilizing the said pipe, telegraph and telephone lines, rights-of-way, roads, ways, timber, coal, minerals, slate, oil, gas, salt water, clay, iron ore, mines, stone and subterranean substances and products thereof, and any and all other property and rights hereby bargained, sold, granted or conveyed, and for the transportation therefrom of said articles; and also the right to build, erect, alter, repair, maintain and operate upon said land, and at its option to therefrom remove, any and all houses, shops, buildings, tanks, derricks, inclines, tipples, dams, cokeovens, store and ware rooms, and machinery and mining and any and all equipment, that may, by party of the second part, its successors or assigns, be deemed necessary or convenient for the full and free exercise and enjoyment of any and all the property, rights and privileges hereby bargained, granted, sold or conveyed; and the right to thereupon convert, reduce, refine, store, dump and manufacture the said, or any or all of said property, or products, in, upon or under said land, or other land owned, or hereafter acquired by said party of the second part, its successors or assigns, by purchase, lease or otherwise; and the right to dump, store and leave upon said land any and all muck, bone, shale, water or other refuse from said mines, wells, ovens or houses; and any and all matters and products that may be excavated from mines or produced by the exercise or enjoyment of any or all the property, rights and privileges hereby bargained, sold, granted or conveyed; and the right to remove all pillars and other lateral and subjacent supports without leaving pillars to support the roof or surface; and the right to use said land for removal or storage of the products taken out of any other land owned, or hereafter acquired by party of the second part, its successors or assigns by lease or otherwise; and the right to erect upon said land and maintain, use, repair and operate, and at their pleasure remove therefrom, any and all buildings and structures, and machinery and mining and any and all equipment, whether specifically enumerated herein or not, that may, by party of the second part, its successors or assigns, be deemed necessary or convenient for the exercise or enjoyment of any or all the property, rights and privileges herein bargained, sold, granted or conveyed; and also the free access to, upon and over said land for the purpose of surveying and prospecting for said property and interests."

The Court of Appeals of Kentucky has held that a "broad form" deed gives the mineral owner the right to strip mine and subjects him to liability only if he exercises that right wantonly, oppressively, maliciously or arbitrarily. See, e. g., Martin v. Kentucky Oak Mining Co., 429 S.W.2d 395, 399 (Ky.1968); Croley v. Round Mountain Coal Co., 374 S.W.2d 852, 854 (Ky.1964); Blue Diamond Coal Co., Inc. v. Campbell, 371 S. W.2d 483, 485 (Ky.1963); Ritchie v. Midland Mining Co., 347 S.W.2d 548 (Ky.1961); Kodak Coal Co. v. Smith, 338 S.W.2d 699, 701 (Ky.1960); Blue Diamond Coal Co. v. Neace, 337 S.W.2d 725, 728 (Ky.1960); Bevander Coal Co. v. Matney, 320 S.W.2d 301, 302 (Ky. 1959); Buchanan v. Watson, 290 S.W.2d 40, 43 (Ky.1956).

The Watsons contend that this interpretation of the deed by the Kentucky Court of Appeals so as to authorize strip mining on their property has denied them due process and constitutes a taking without compensation because: 1) The Court retroactively has expanded and enlarged the mineral owner's rights under the deed; 2) the Court has given the coal miners a privileged position to the detriment of the surface owners; and 3) the deed does not specifically authorize strip mining, and, indeed, strip mining was not contemplated at the time the mineral rights were conveyed.

As support for their argument that the Court of Appeals of Kentucky unconstitutionally has enlarged the rights conveyed by a "broad form" deed, appellants rely on West Kentucky Coal Co. v. Dilback, 219 Ky. 783, 784, 294 S.W. 478, 479 (1927), wherein the Court stated:

"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 not dependent upon any question of negligence."

We fail to see how this case, which recites the general rule, lends support to the...