West Ky. Coal Co. v. Rudd

• Decision Date: 09 October 1959
• Citation: 328 S.W.2d 156
• Parties: WEST KENTUCKY COAL COMPANY, a Corporation, Appellant, v. Nevelyn RUDD, Administratrix with the Will Annexed of the Estate of C. B. Moore, Deceased, et al., Appellee. NORTON COAL MINING COMPANY, a corporation, Appellant, v. Nevelyn RUDD, Administratrix with the Will Annexed of the Estate of C. B. Moore, Deceased, et al., Appellee. WILLIAMS COAL COMPANY, Appellant, v. Nevelyn RUDD, Administratrix with the Will Annexed of the Estate of C. B. Moore, Deceased, et al., Appellee. W. G. DUNCAN COAL COMPANY, a Corporation, Appellant, v. Nevelyn RUDD, Administratrix with the Will Annexed of the Estate of C. B. Moore, Deceased, et al., Appellee. ZIEGLER COAL AND COKE COMPANY, a Corporation, Appellant, v. Nevelyn RUDD, Administratrix with the Will Annexed of the Estate of C. B. Moore, Deceased, et al., Appellee. BELL AND ZOLLER COAL COMPANY, a Corporation, Appellant, v. Nevelyn RUDD, Administratrix with the Will Annexed of the Estate of C. B. Moore, Deceased, et al., Appellee. HOMESTEAD COAL COMPANY, a Corporation, Appellant, v. Nevelyn RUDD, Administratrix with the Will Annexed of the Estate of C. B. Moore, Deceased, et al., Appellee. TERTELING BROS., INC., Appellant, v. Nevelyn RUDD, Administratrix with the Will Annexed of the Estate of C. B. Moore, Deceased, et al., Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 156

328 S.W.2d 156

WEST KENTUCKY COAL COMPANY, a Corporation, Appellant, v. Nevelyn RUDD, Administratrix with the Will Annexed of the

Estate of C. B. Moore, Deceased, et al., Appellee.

NORTON COAL MINING COMPANY, a corporation, Appellant, v. Nevelyn RUDD, Administratrix with the Will Annexed of the

Estate of C. B. Moore, Deceased, et al., Appellee.

WILLIAMS COAL COMPANY, Appellant, v. Nevelyn RUDD, Administratrix with the Will Annexed of the

Estate of C. B. Moore, Deceased, et al., Appellee.

W. G. DUNCAN COAL COMPANY, a Corporation, Appellant, v. Nevelyn RUDD, Administratrix with the Will Annexed of the

Estate of C. B. Moore, Deceased, et al., Appellee.

ZIEGLER COAL AND COKE COMPANY, a Corporation, Appellant, v. Nevelyn RUDD, Administratrix with the Will Annexed of the

Estate of C. B. Moore, Deceased, et al., Appellee.

BELL AND ZOLLER COAL COMPANY, a Corporation, Appellant, v. Nevelyn RUDD, Administratrix with the Will Annexed of the

Estate of C. B. Moore, Deceased, et al., Appellee.

HOMESTEAD COAL COMPANY, a Corporation, Appellant, v. Nevelyn RUDD, Administratrix with the Will Annexed of the

Estate of C. B. Moore, Deceased, et al., Appellee.

TERTELING BROS., INC., Appellant, v. Nevelyn RUDD, Administratrix with the Will Annexed of the

Estate of C. B. Moore, Deceased, et al., Appellee.

Court of Appeals of Kentucky.

Oct. 9, 1959.

James G. Wheeler, Paducah, James F. Gordon, Madisonville, for West Ky. Coal Co.

Wm. P. Donan, Greenville, for appellants Terteling Bros. and Norton Coal Mining Co.

James G. Wheeler, Paducah, for Williams Coal Co.

Woodward, Bartlett & McCarroll, Owensboro, for appellants Zeigler Coal and Coke Co. and Bell and Zoller Coal Co.

Sam T. Jarvis, Greenville, for appellants W. G. Duncan Coal Co. and Homestead Coal Co.

John B. Anderson, Owensboro, for appellee.

CULLEN, Commissioner.

C. B. Moore, owner of a 528-acre farm lying on Pond River, in Hopkins and Muhlenberg Counties, brought action against eight coal mining companies who operate in the Pond River drainage area, alleging that the companies were casting and discharging from their properties large quantities of coal slack, copperas waters and other deleterious substances which were carried into the waters of Pond River and were deposited on his land during overflow periods, causing damage to the productivity and fertility of his land. He sought a permanent injunction, and damages. The action was brought in 1950, before adoption of the present Rules of Civil Procedure, and subsequently an order was entered that the case be practiced to its conclusion under the former Civil Code.

The court entered judgment granting a permanent injunction, and an order transferring the damage phase of the case to the common law docket, for a jury trial. The coal companies have appealed from the judgment. Subsequent to the taking of the appeal Mr. Moore died, and the action has been revived in the name of his administratrix with the will annexed, and his devisees.

The first contention of the appellants is that the court erred in overruling their motions that the plaintiff be required to elect (1) whether he would seek damages or an injunction, and, (2) if he chose to seek damages, which one of the eight defendants he would proceed against. In support of this contention the appellants first maintain that the plaintiff could not obtain both an injunction and damages in the same action, and they cite Keck v. Hafley, Ky., 237 S.W.2d 527. The latter case was a 'reverse condemnation' suit, in which a landowner sought damages from the state for injury to his land, and an injunction, where the construction of a highway had diverted the flow of water from a creek so as to inundate his land. The Court held that the suit must be governed by the law applicable to condemnation actions, and since in a condemnation action the state by paying damages would acquire the right to continue to maintain the condition complained of, the landowner was limited to recovery of damages and could not obtain an injunction. The case is not authority for the proposition that in an action against a private defendant, the plaintiff may not obtain both damages and injunctive relief. In fact, the rule is the other way. See Gay v. Perry, 205 Ky. 38, 265 S.W. 437; Perry v. Simpkins, 260 Ky. 151, 84 S.W.2d 35.

The appellants further maintain, in support of their argument that the plaintiff should have been required to make an election, that they were not joint tortfeasors, and therefore could not be joined in one action for damages. There is some authority for the proposition asserted, as concerns actions for damages alone, but there is no such prohibition against joining of defendants in an action to enjoin a nuisance, and it is generally held that where a court of equity has taken jurisdiction in such an action it may determine and award damages also. Pomeroy's Equity Jurisprudence, Vol. 1, sec. 237, p. 429; 39 Am.Jur., Nuisances, sec. 167, p. 437; Eastland v. Robinson, 233 Ky. 403, 25 S.W.2d 1028, 70 A.L.R. 365.

We conclude that the court correctly overruled the motion to require the plaintiff to elect.

The second contention of the appellants is that the evidence did not show any damage to the plaintiff's land as a result of the appellants' operations. The plaintiff's evidence was that coal slack, mine waste and other deleterious substances were deposited on his land during times of overflow of Pond River, and that the fertility and productivity of his soil had decreased; that the water of Pond River was bitter and his cattle could not drink it, and he was compelled to discontinue use of the water in a steam boiler because of chemical action of the water on the metal in the boiler. The plaintiff did not offer any evidence of chemical tests of the soil or water. The appellants introduced evidence of two water samples taken on one occasion from Pond River near the plaintiff's farm, which tested neutral as concerns acidity. They attempt to make much of this, but we think the water tests are not controlling, because (1) the samples were limited to a single day, when acid conditions could have been most favorable, (2) tests of Drake's Creek, which flows into Pond River near the plaintiff's farm, showed an extremely high acid content, and (3) the plaintiff does not rest his claim of damage on acidity of the water alone.

The appellants endeavored to establish that the acidity of the plaintiff's soil was no worse than that of other lands in the general area, but this could well mean that all of the lands were being damaged from pollutants in the water courses.

The appellants further sought to prove that by reason of mining operations of others, over a long period of years, the waters of Pond River had always been polluted, and that the appellants'...