West v. National Mines Corp., 14916

Citation285 S.E.2d 670,168 W.Va. 578
Decision Date18 December 1981
Docket NumberNo. 14916,14916
CourtSupreme Court of West Virginia
Parties, 25 A.L.R.4th 1179 Grat WEST, et al. v. NATIONAL MINES CORP., et al.

Syllabus by the Court

1. A complaint that alleges an unreasonable, negligent, or unlawful use of public property which materially impairs the right of another to the enjoyment of his house and infringes upon the well-being, comfort, repose, and enjoyment of the regular, natural person residing therein, states a cause of action of which the courts of this State have cognizance.

2. One who employs an independent contractor to do work which the employer knows or has reason to know to be likely to involve the creation of a public or private nuisance, is subject to liability for harm resulting from such nuisance.

David Norken, Pineville, Tobias J. Hirshman, Charleston, for appellants.

Love, Wise, Robinson & Woodroe, E. Glenn Robinson and David L. Wyant, Charleston, for appellees.

McGRAW, Justice:

This is an appeal from a judgment order of the Circuit Court of Wyoming County which denied the appellants' motion for a preliminary injunction and granted the appellees' motion to dismiss. The appellants, Grat and Mila West, husband and wife, live along state secondary route 8/1 on Buffalo Creek in Wyoming County. Appellee, National Mines Corporation, owns the coal lease on property located up the hollow from the appellants' property. National has contracted with the other named appellees, H & S Coal Company, B & F Coal Company, C & L Coal Company, Inc., and Economy Fuel Company, Inc., for the production of coal from its leasehold.

Coal produced from National's leasehold is removed by contract haulers who transport the coal by truck down route 8/1 past the appellants' house to a preparation facility owned by National located approximately three miles west of Pineville, West Virginia. The coal is hauled in large trucks carrying 30 to 50 tons per load. The trucks run six days per week and occasionally all night long. Route 8/1, the only access road between the mine and National's preparation facility, is a dirt and gravel based road. Consequently, much dust is created by the truck traffic in dry weather conditions. The dust problem is exacerbated by the truck operators' practice of travelling in packs of four or five trucks at a speed of approximately 30 miles per hour. Although there is a limited amount of local automobile traffic on the road, the dust problem is caused primarily by the coal truck traffic. The appellants' house sits close to the road and the dust created by the trucks settles on the house and the surrounding property.

Although the appellants have lived in their present house since 1972, Mr. West has lived at the same address for over 45 years. Mining operations have been ongoing above the appellants' property for decades, but more coal is being hauled out now than ever before. 1 Thus more and larger coal trucks travel route 8/1 now than in the past, and as a result the dust problem associated with the truck traffic has become more severe.

The appellants filed a complaint against National and the other coal companies on November 21, 1978 alleging the existence of a nuisance caused by the activities of the appellees and seeking preliminary and permanent injunctive relief, as well as damages. After filing an answer and two amended answers the appellees moved to dismiss the complaint. The appellants then filed a petition for a preliminary injunction requesting that the appellees be temporarily enjoined from hauling coal over route 8/1, or in the alternative that they be required to water the road in order to abate the dust, and for such other relief as may be deemed reasonable and just.

The trial court did not act upon the appellees' motion to dismiss, but a hearing was held on the appellants' petition for a preliminary injunction on September 21, 1979, at which Mr. and Mrs. West testified. Mr. West described the nature of the nuisance created by the appellees' operations in the following manner:

[T]he trucks create this dust coming up from the road, and we have to live there because we have nowhere else to go. It is our home, and we have to breathe and you can't breathe in the dust, as thick as it is. It is like a cloud hanging down there all day long way up into the night. If you are outside trying to do something in the yard or the garden, you've got to wear a dust mask. (R. p. 57.)

The dust is ubiquitous. It permeates the house even with the doors and windows closed. The evidence shows that the dust is oily and greasy, black looking and hard to clean. It interferes with breathing. It spoils the food raised by the appellants in their garden. It fouls the water, and prevents the appellants from sleeping soundly. The oppressive conditions caused by the dust were summarized by Mr. West:

You can stay out in the dust, I believe, and it would actually kill you in the end. I have to get out of it. You all ought to really understand what I am trying to say here, that the dust can be that bad down there. You take a dirt road down there, as much big traffic as is on it, that is the kind of atmosphere we have to live in every day except when it is raining, and, believe me it is not good. It is hard to breathe. I tell you, I've often thought about it like this: A man would be better off over there in jail in solitary confinement than to have to put up with this kind of conditions for the rest of his life. It is just that bad. (R. 60-61.)

The appellees offered no evidence at the hearing, but rather presented a memorandum in support of their motion to dismiss. The appellants requested additional time to file a memorandum, but before they could do so the trial court entered an order denying their petition for a preliminary injunction and dismissed the action, as to the coal companies, on the merits. The memorandum opinion of the circuit court indicates that it dismissed the complaint and denied the injunction against National because none of its trucks or employees were involved in the hauling of coal along route 8/1. The court further concluded that none of the other coal companies were guilty of actionable negligence because the dust problem was created by their use of a public road.

The appellants contend that the circuit court erred in dismissing their complaint. They allege that, notwithstanding the fact that the coal is hauled on a public road, the dust created by the coal trucks is a nuisance because it is excessive and constitutes a substantial and continuing problem that has caused a material disturbance by denying them the use and enjoyment of their house. They further contend that the appellees are responsible for creation of the nuisance even though the haulers may be independent contractors. Finally, the appellants allege that the circuit court erred in denying them a temporary injunction.

Initially we note that it is unclear from the record whether the trial court treated the appellees' motion as a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6) of the West Virginia Rules of Civil Procedure, or as a motion for summary judgment pursuant to Rule 56 of the West Virginia Rules of Civil Procedure. While Rule 12(b)(6) and Rule 56 are closely related, and perhaps overlap in some respects, only matters contained in the pleadings may be considered on a motion to dismiss under Rule 12(b)(6). If matters outside the pleadings are presented to the court and are not excluded by it, the motion should be treated as one for summary judgment and disposed of as provided in Rule 56. Chapman v. Kane Transfer Company, W.Va., 236 S.E.2d 207 (1977); Barker v. Traders Bank, 152 W.Va. 774, 166 S.E.2d 331 (1969). Since the trial court's ruling on the appellees' motion was made after taking evidence at the hearing on the propriety of a preliminary injunction, we will treat the trial court's disposition of the appellees' motion as a ruling under the provisions of Rule 56.

There are two primary issues presented by this appeal. First, can the unreasonable, negligent or unlawful use of a public road constitute a legally cognizable nuisance, and second, can the primary beneficiary of a contractual relationship escape liability for nuisance through the use of independent contractors whose unreasonable, negligent or unlawful activities give rise to a nuisance.


American courts are agreed on the general rule that any dust which substantially interferes with the comfortable enjoyment of adjacent premises constitutes a nuisance, see Annot., 24 A.L.R.2d 194 § 1 (1952), and the appellees do not here dispute the fact that the coal truck traffic along route 8/1 has created a serious dust problem. Rather they argue that a private party cannot be held liable for a dust nuisance which arises from the use of a public roadway. We disagree.

The issue of whether the use of a public road can constitute an actionable nuisance is one of first impression in this jurisdiction; other jurisdictions have, however, addressed the issue, with varying results. For example, in Shannon v. Missouri Valley Limestone Company, 255 Iowa 528, 122 N.W.2d 278 (1963), property owners brought suit to enjoin a dust nuisance arising from the hauling of limestone by trucks on an unpaved public road adjoining their property. The trial court did not enjoin use of the road or stop operation of the limestone quarry, but did require the limestone company, notwithstanding that the trucks were operated by independent contractors, to treat the surface of the road to prevent dust damage to the plaintiffs and their property. The Supreme Court of Iowa affirmed, noting that:

The dust is irritating to the skin, nose and throat, kills lawns, gets in their homes and food, is injurious to all vegetation and livestock, requires plaintiffs to keep their homes closed in hot weather, and in short makes ordinary use of a home and lawn...

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